New Edition of the leading textbook …

International Law
FIFTH EDITION

MALCOLM N. SHAWFor further details go to www.cambridge.org/law/shaw

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Frontmatter
More information

INTERNATIONAL LAW FIFTH EDITION

This ﬁfth edition of Malcolm Shaw’s bestselling textbook on internationallaw provides a clear, authoritative and comprehensive introduction to thesubject. This leading text has been fully revised and updated to Spring 2003
to take account of new developments in the ﬁeld. Basically preserving thestructure which made the previous edition so successful, a new chapter
on Inter-state Courts and Tribunals pays special attention to the role ofthe International Court of Justice and the International Tribunal on the
Law of the Sea, and there is a new chapter on International Humanitarian
Law. Also examined are arbitration tribunals set up for dispute settlement
and the role of international institutions such as the WTO in resolving
conﬂicts. The prosecution of individuals for violations of international law
is examined. Additional coverage of events in Kosovo and Iraq analyses thequestions of humanitarian intervention and the role of the UN. Written
in a clear and accessible style and setting the subject ﬁrmly in the context
of world politics and the economic and cultural inﬂuences affecting it,
this book remains a highly readable and invaluable resource for students
and practitioners alike. The scope of the text makes this essential reading
for students of international law, international relations and the politicalsciences. The book is also designed to be of value for practitioners and forgovernmental and international civil servants.
malcolm shaw qc is the Sir Robert Jennings Professor of International
Law at the University of Leicester, and a practising barrister.

© Cambridge University Press

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Frontmatter
More information

INTERNATIONAL LAW
Fifth edition

MALCOLM N. SHAW QC
Sir Robert Jennings Professor of International Law
University of Leicester© Cambridge University Press

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Frontmatter
More information

published by the press syndicate of the university of cambridge
The Pitt Building, Trumpington Street, Cambridge, United Kingdom
cambridge university press
The Edinburgh Building, Cambridge CB2 2RU, UK
40 West 20th Street, New York, NY 10011--4211, USA
477 Williamstown Road, Port Melbourne, VIC 3207, Australia
Ruiz de Alarcón 13, 28014 Madrid, Spain
Dock House, The Waterfront, Cape Town 8001, South Africa
http://www.cambridge.org
C M. N. Shaw 2003

This book is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without
the written permission of Cambridge University Press.
Fourth edition ﬁrst published by Cambridge University Press 1997
Reprinted 1999, 2000, 2001 (twice), 2002
Fifth edition published by Cambridge University Press 2003
Reprinted 2003, 2004 (twice)
Printed in the United Kingdom at the University Press, Cambridge
Typeface Adobe Minion 10.75/12.75 pt.

System LATEX 2ε [tb]A catalogue record for this book is available from the British Library
Library of Congress Cataloguing in Publication data
Shaw, Malcolm N. (Malcolm Nathan), 1947–
International law / Malcolm N. Shaw – 5th edn.
p.
cm.
Includes bibliographical references and index.
ISBN 0 521 82473 7 (hardback) – ISBN 0 521 53183 7 (paperback.)
1. International law. I. Title.
KZ3275.S53 2003 341 – dc21
2003051552
ISBN 0 521 82473 7 hardback
ISBN 0 521 53183 7 paperback© Cambridge University Press

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Frontmatter
More information

To my mother, Paulette
And in memory of my father, Ben Shaw CBE
And of my mother-in-law, Denise Axelrod
But above all to my wife Judith© Cambridge University Press

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Frontmatter
More information

CONTENTS

Prefacepage xxiii

Table of cases

xxv

Table of treaties and selected other international
instruments
lxviii
List of abbreviations

cxli

1

The nature and development of international law
1
Law and politics in the world community
2
The role of force
4
The international system
5
The function of politics
11
Historical development
13
Early origins
14
The Middle Ages and the Renaissance18
The founders of modern international law
22
Positivism and naturalism
24
The nineteenth century
26
The twentieth century
30
Communist approaches to international law
31
The Third World
38

2

International law today
42
The expanding legal scope of international concern
Modern theories and interpretations
48
Positive Law and Natural Law
48
New approaches
53

3

Sources65
Custom68
Introduction

42

68
vii

© Cambridge University Press

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Frontmatter
More information

viii

contents

The material fact
72
What is state practice?
77
Opinio juris
80
Protest, acquiescence and change in customary law
Regional and local custom
87
Treaties
88
General principles of law
92
Equity and international law
99
Judicial decisions
103
Writers
105
Other possible sources of international law
107
The International Law Commission
112
Other bodies
114
Unilateral acts
114
Hierarchy of sources and jus cogens
115

84

4

International law and municipal law
120
The theories
121
The role of municipal rules in international law
124
International law before municipal courts
128
The United Kingdom
128
Customary international law
129
Treaties
135
The United States
143
Other countries
151
Justiciability, act of state and related doctrines
162
Executive certiﬁcates172

5

The subjects of international law
175
Legal personality – introduction
175
States177
Creation of statehood
177
Self-determination and the criteria of statehood
Recognition
185
Extinction of statehood
186
The fundamental rights of states
189
Independence
189
Equality
192
Peaceful co-existence
193
Protectorates and protected states
194© Cambridge University Press

183

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Frontmatter
More information

contents

Federal states
195
Sui generis territorial entities
201
Mandated and trust territories
201
Germany 1945
204
Condominium
206
International territories
207
Taiwan211
The ‘Turkish Republic of Northern Cyprus’ (TRNC)
The Saharan Arab Democratic Republic
213
Associations of states
214
Conclusions
217
Special cases
218
The Sovereign Order of Malta
218
The Holy See and the Vatican City
218
Insurgents and belligerents
219
National liberation movements (NLMs)
220
International public companies
223
Transnational corporations
224
The right of all peoples to self-determination
225
The establishment of the legal right225
The deﬁnition of self-determination
230
Individuals
232
International criminal responsibility
234International organisations
241
The acquisition, nature and consequences of legal
personality – some conclusions
241
6

ix

212

The international protection of human rights
247
The nature of human rights
247
Ideological approaches to human rights in international law
249
The development of international human rights law
252
Some basic principles
254
Domestic jurisdiction
254
The exhaustion of domestic remedies rule
254
Priorities of rights
256
Customary international law and human rights
256
The United Nations system – general257
The protection of the collective rights of groups
and individuals262© Cambridge University Press

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Frontmatter
More informationx

contents

Prohibition of genocide262
Prohibition of discrimination
266
The principle of self-determination as a human right269
The protection of minorities
273
Other suggested collective rights
280
The United Nations system – implementation
281
Political bodies – general282
The Commission on Human Rights
283
Expert bodies established by UN organs
285
The Sub-Commission on the Promotion and Protection of
Human Rights
285
The International Covenant on Economic, Social andCultural Rights
286
Expert bodies established under particular treaties
289
The Committee on the Elimination of Racial
Discrimination
289
The Human Rights Committee
292
The Committee on the Elimination of Discrimination Against Women300
The Committee Against Torture303
The Committee on the Rights of the Child307
The Committee on the Protection of Migrant Workers
309
Conclusions
310
The specialised agencies
312
The International Labour Organisation
312
The United Nations Educational, Scientiﬁc and Cultural
Organisation
315
7

The regional protection of human rights
319
Europe319
The Council of Europe
319
The European Convention on Human Rights
321
The convention system
324
The European Social Charter
334
The European Convention for the Prevention of Tortureand Inhuman and Degrading Treatment or Punishment337© Cambridge University Press

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Frontmatter
More information

contents

xi

The Council of Europe Framework Convention for theProtection of National Minorities
340
The European Union
344
The OSCE (Organisation for Security and Co-operation in
Europe)346
The CIS Convention on Human Rights and Fundamental
Freedoms
352
The Human Rights Chamber of Bosnia andHerzegovina
353
The American Convention on Human Rights
354
The Banjul Charter on Human and Peoples’ Rights
363
The Arab Charter on Human Rights
365
8

Recognition
367
Recognition of states
368
Recognition of governments
376
De facto and de jure recognition
382
Premature recognition
383
Implied recognition
384
Conditional recognition
387
Collective recognition
388
Withdrawal of recognition388
Non-recognition390
The legal effects of recognition
393
Internationally393
Internally
393
The UK
394
The USA
404

9

Territory
409
The concept of territory in international law
409
Territorial sovereignty
411
New states and title to territory414
The acquisition of additional territory
417
Boundary treaties and boundary awards
417
Accretion
419
Cession420
Conquest and the use of force
422
The exercise of effective control
424
Intertemporal law
429© Cambridge University Press

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Frontmatter
More informationxii

contents

Critical date
431
Sovereign activities (effectivités)
432
The role of subsequent conduct: recognition, acquiescenceand estoppel
436
Conclusions
441
Territorial integrity, self-determination and sundry claims
443
The doctrine of uti possidetis
446
Beyond uti possidetis
449
International boundary rivers
451
The Falkland Islands
452‘The common heritage of mankind’453
The polar regions
455
Leases and servitudes459
10

Air law and space law
463
Air law
463
Theories
463
The structure465
The Warsaw Convention system
469
Unauthorised aerial intrusion and the downing of civilian
airliners
473
The law of outer space479
The deﬁnition and delimitation of outer space
480
The regime of outer space
481
Telecommunications
486

11

The law of the sea
490
The territorial sea
493
Internal waters
493
Baselines
495
Bays
499
Islands
501
Archipelagic states
502
The width of the territorial sea
505
Delimitation of the territorial sea between states with
opposite or adjacent coasts
506
The juridical nature of the territorial sea
506
The right of innocent passage
507
Jurisdiction over foreign ships
511© Cambridge University Press

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Frontmatter
More information

contents

xiii

International straits
512
The contiguous zone
515
The exclusive economic zone
517
The continental shelf
521
Deﬁnition
523
The rights and duties of the coastal state
525
Maritime delimitation
527
Landlocked states
541
The high seas
542
Jurisdiction on the high seas
545
Exceptions to the exclusivity of ﬂag-state jurisdiction
Right of visit
548
Piracy549
The slave trade
550
Unauthorised broadcasting550
Hot pursuit
551
Collisions
552
Treaty rights
552
Pollution
553
Straddling stocks
556
The international seabed
560
Introduction
560
The 1982 Law of the Sea Convention (Part XI)
561
The Reciprocating States Regime563
The 1994 Agreement on Implementation of the Seabed
Provisions of the Convention on the Law of the Sea
565
The International Seabed Authority
566
Settlement of disputes
568
12

Jurisdiction
572
The principle of domestic jurisdiction
574
Legislative, executive and judicial jurisdiction
Civil jurisdiction
578
Criminal jurisdiction
579
The territorial principle
579
The nationality principle
584
The passive personality principle
589
The protective principle
591
The universality principle592© Cambridge University Press

548

576

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Frontmatter
More information

xiv

contents

Piracy593
War crimes, crimes against peace and crimes against
humanity
594
Treaties providing for jurisdiction
597
Illegal apprehension of suspects and the exercise ofjurisdiction
604
The US Alien Tort Claims Act
607
Extradition
610
Extraterritorial jurisdiction
611
13

Immunities from jurisdiction
621
Sovereign immunity621
The absolute immunity approach
625
The restrictive approach
628
Sovereign and non-sovereign acts
631
State immunity and violations of human rights
638
Commercial acts
640
Contracts of employment
646
Other non-immunity areas
648
The personality issue – instrumentalities and parts of the
state
649
The personality issue – immunity for government ﬁgures
655
Waiver of immunity
659
Pre-judgment attachment
661
Immunity from execution
662
The burden and standard of proof
666
Conclusion
667
Diplomatic law
668
The Vienna Convention on Diplomatic Relations, 1961
669
The inviolability of the premises of the mission
671
The diplomatic bag
676
Diplomatic immunities – property
679
Diplomatic immunities – personal681
Waiver of immunity
687
Consular privileges and immunities: the Vienna Convention
on Consular Relations, 1963
688
The Convention on Special Missions, 1969
690

© Cambridge University Press

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Frontmatter
More information

contents

xv

The Vienna Convention on the Representation of States intheir Relations with International Organisations of a
Universal Character, 1975
691
The immunities of international organisations
692
Internationally protected persons
692
14State responsibility694
The nature of state responsibility
696
The question of fault
698
Imputability
700
Ultra vires acts
702
State control and responsibility
704
Mob violence, insurrections and civil wars
705
Circumstances precluding wrongfulness
707
Invocation of state responsibility
713
The consequences of internationally wrongful acts
714
Cessation
714
Reparation
715
Serious breaches of peremptory norms (jus cogens)
720
Diplomatic protection and nationality of claims
721
The exhaustion of local remedies
730
The treatment of aliens
733
The relevant standard of treatment
734
The expropriation of foreign property
737
The property question
740
The nature of expropriation
740
Public purposes
742
Compensation
743
Bilateral investment treaties
747
Lump-sum agreements
749
Non-discrimination
751
The Multilateral Investment Guarantee Agency
751

15International environmental law
753
State responsibility and the environment
760
The basic duty of states
760
The appropriate standard
762
Damage caused
765
Liability for damage caused by private persons© Cambridge University Press768

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Frontmatter
More information

xvi

contents

Prevention of transboundary harm from hazardous activities
768
The problems of the state responsibility approach
771
International co-operation
771
Atmospheric pollution
780
Ozone depletion and global warming
784
Outer space
790
International watercourses
791
Ultra-hazardous activities
795
Nuclear activities
796
The provision of information
798
The provision of assistance799
Nuclear safety
801
Civil liability
801
Hazardous wastes
803
Marine pollution
806
Pollution from ships
806
16

The law of treaties
810
The making of treaties
815
Formalities
815
Consent
816
Consent by signature
817
Consent by exchange of instruments
818
Consent by ratiﬁcation
819
Consent by accession
820
Reservations to treaties
821
Entry into force of treaties
831
The application of treaties
832
Third states
834
The amendment and modiﬁcation of treaties
837
Treaty interpretation
838
Invalidity, termination and suspension of the operation oftreaties
845
General provisions
845
Invalidity of treaties
846
Municipal law
846
Error
847
Fraud and corruption
848
Coercion
848© Cambridge University Press

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Frontmatter
More information

contentsxvii

Jus cogens
850
Consequences of invalidity
850
The termination of treaties
851
Termination by treaty provision or consent
851
Material breach853
Supervening impossibility of performance
855
Fundamental change of circumstances
855
Consequences of the termination or suspension of a treaty
857
Dispute settlement
858
Treaties between states and international organisations
858
17

State succession
861
Continuity and succession
865
Succession to treaties
871
Categories of treaties: territorial, political and other treaties
871
Succession to treaties generally
875
Absorption and merger
875
Cession of territory from one state to another878
Secession from an existing state to form a new state orstates878‘Newly independent states’
881
Dissolution of states
884
International human rights treaties
885
Succession with respect to matters other than treaties
889
Membership of international organisations
889
Succession to assets and debts
890
State property
891
State archives
897
Public debt
900
Private rights
905
State succession and nationality
907
Hong Kong
912

18

The settlement of disputes by peaceful means
914
Diplomatic methods of dispute settlement
918
Negotiation
918
Good ofﬁces and mediation
921
Inquiry923© Cambridge University Press

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Frontmatter
More information

xviii

contents

Conciliation
925
International institutions and dispute settlement
928
Regional organisations and the United Nations
928
The African Union (Organisation of African Unity)
930
The Organisation of American Statese
934
The Arab League
935
Europe936
International organisations and facilities oflimited competence
938
19Inter-state courts and tribunals
951
Arbitration
951
Judicial settlement959
The International Court of Justice959
The organisation of the Court
961
The jurisdiction of the Court
966
General966
The nature of a legal dispute
969
Contentious jurisdiction
972
Article 36(1)973Article 36(2)978Sources of law, propriety and legal interest
983
Evidence
984
Provisional measures
987
Counter-claims
990
Third-party intervention991
Remedies
994
Enforcement
996
Application for interpretation of a judgment
997
Application for revision of a judgment
997
Examination of a situation after the judgment998
Non-appearance
999
The advisory jurisdiction of the Court
1000
The role of the Court
1004
The International Tribunal for the Law of the Sea
1005
Proliferation of courts and tribunals
1011

20

International law and the use of force by states1013
Law and force from the ‘just war’ to the United Nations
1013© Cambridge University Press

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Frontmatter
More information

contents

xix

The UN Charter
1017‘Force’1019‘Against the territorial integrity or political independence ofany state’
1021
Categories of force
1022
Retorsion
1022
Reprisals
1023
The right of self-defence1024
The protection of nationals abroad
1032
Conclusions
1034
Collective self-defence
1035
Force and self-determination
1036
Intervention
1039
Civil Wars
1040
Aid to the authorities of a state
1042
Aid to rebels
1043
The situation in the Democratic Republic of the Congo
1044
Humanitarian intervention
1045
Terrorism and international law
1048
21International humanitarian law
1054
Development1054
The scope of protection under the Geneva Conventions system1056
The conduct of hostilities
1063
Armed conﬂicts: international and internal
1068
Non-international armed conﬂict
1072
Enforcement of humanitarian law
1076
Conclusion
1079

22

The United Nations
1082
The UN system
1082
The Security Council
1084
The General Assembly
1087
The Economic and Social Council
1091
The Trusteeship Council
1092
The Secretariat
1093
The specialised agencies
1095
Economic and ﬁnancial specialised agencies© Cambridge University Press1098

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Frontmatter
More informationxx

contents

The peaceful settlement of disputes
1099
The League of Nations
1099
The United Nations system
1100
The Security Council
1101
The General Assembly
1105
The Secretary-General
1106
Peacekeeping and observer missions
1107
Conclusion
1117
The collective security system
1119
The Security Council
1119
Determination of the situation
1120
Chapter VII measures
1124
Measures not involving the use of force
1124
Measures involving the use of force
1133
The Use of force in non-enforcement situations
1138
Former Yugoslavia
1139
Somalia
1142
Rwanda1144
Sierra Leone
1145
The Democratic Republic of the Congo1146
The range of UN actions from humanitarian assistance toenforcement – conclusions
1147
The Security Council, international law and theInternational Court of Justice1148
The role of the General Assembly
1151
The UN and regional arrangements and agencies
1154
23International institutions
1161
Historical development
1161
Approaches to international institutions
1164
Institutions of a universal character
1166
The League of Nations
1166
The United Nations
1166
International economic organisations
1167
Regional institutions
1168
Europe1168
The North Atlantic Treaty Organisation
1168
The Western European Union
1170
The Council of Europe
1171© Cambridge University Press

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Frontmatter
More information

contentsxxi

The Organisation for Economic Co-operation andDevelopment
1172
The European Union
1172
The Organisation for Security and Co-operation in Europe(OSCE)
1179
The Commonwealth of Independent States
1181
The American Continent
1182
The Arab League
1183
Africa1183
Eastern Europe
1185
Asia
1185
Some legal aspects of international organisations
1186
Personality
1187
The constituent instruments
1193
The Powers of international institutions
1195
The applicable law
1198
The responsibility of international institutions
1199
Liability of member states
1201
The accountability of international institutions
1204
Privileges and immunitie
1205
Dissolution
1213
Succession
1214
Some useful international law websites
Index© Cambridge University Press

1216

1225

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Frontmatter
More information

PREFACEIn the quarter-century since this book ﬁrst appeared, there have been
few moments of uncertainty as to the direction of international relations
and international law to compare with the early years of the twenty-ﬁrst
century. Globalisation has brought undoubted beneﬁts in the ﬁelds ofcommerce, technology and communications, but also increased dangers
concerning the rapid spread of disease and the growth of international
terrorism. The clearly understood rules and limitations as to state conduct apparent during the Cold War period have disappeared and (for the
moment at least) the optimism engendered by a renewed United Nationsin the early 1990s has dissipated. Increasing resort to force by states, entities and individuals coupled with the apparently easy access to weaponsof high destructive capacity pose a signiﬁcant challenge to those wishingto establish a world order based on justice, mutual respect, toleration andforbearance.
Certain key events must be noted, for they have combined to shift theorientation of international relations. Increasing human rights violationscommitted in the Kosovo province of Yugoslavia in 1998–9 precipitatedan air attack by NATO undertaken not in self-defence nor pursuant toa United Nations mandate but rather on explicit humanitarian grounds.
Even more dramatically, the attack on the US on 11 September 2001
has jolted easy conceptions of international behaviour and has led, notonly to signiﬁcant diplomatic activity to deal with the phenomenon ofinternational terrorism in all its forms, but also to the use of force in aneffort to punish, discourage and pre-empt such activity. To the military
operations against the Taliban regime of Afghanistan and its Al Qaeda
allies in late 2001 in pursuit, as argued, of self-defence must be added
the campaign against Iraq in March–April 2003 leading to the collapse of
the regime of Saddam Hussein. This latter operation was undertaken inorder to enforce Security Council resolutions requiring Iraq to divest itself
of weapons of mass destruction, but without explicit UN endorsement.
One important consequence of the increasing instability of international
xxiii© Cambridge University Press

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Frontmatter
More informationxxiv

prefacerelations has been the attention given to international law and the notionof international legitimacy.
The fourth edition that appeared in 1997 has been extensively revised.
To mark the increasing signiﬁcance of inter-state courts and tribunals,
former materials have been updated, rewritten and gathered into a newchapter, while the previous section on international humanitarian law
has been expanded to constitute a separate chapter. All the other chaptershave been re-examined, updated and often rewritten. In addition, a shortlist of what are seen as the most important publications has been added
after each chapter in order to assist those wishing to take their studies further and a section on useful websites has been added (see p. 1216). I havealso been able to correct some errors. I would like particularly to thankFinola O’Sullivan of Cambridge University Press for her encouragement,
assistance and above all patience. Particular gratitude is owed to Diane
Ilott for her careful and thorough copy-editing and to Chantal Hamill
and Mauren MacGlaslon for so carefully preparing the index and tables
respectively. A debt remains to Sir Elihu Lauterpacht QC for his encouragement in the development of this work. I also remain grateful to mymany colleagues from many countries for their advice and encouragement, while reassuring them that all responsibility for the end productrests squarely with me.
As ever, the real and deepest thanks are due to my wife Judith andmy children, Talia, Ilan and Daniella. They have borne the brunt of mytravails over the years and endured the inevitable pressures and have done
so in a caring and loving manner. Their support remains the indispensablefoundation of this work.
Malcolm N. Shaw QC
Faculty of Law
University of Leicester
Spring 2003

© Cambridge University Press

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Frontmatter
More information

TABLE OF CASES

Note : Figures in square brackets refer to volume and page of the Annual
Digest/International Law Reports where cited cases are reproduced. ‘Et al.’reﬂects the fact that the Annual Digest practice was to reproduce reports
in sections according to subject matter so that reports are liable to be
distributed throughout a volume.
I ◦ Congreso Del Partido [64.154] 134, 623, 630, 634, 635–6, 655
A Company Limited v. Republic of X [87.412] 659, 662, 666, 687–8
A Limited v. B Bank and Bank of X [111.590] 164
Aaland Islands Case 226, 411, 460, 874
Abbasi v. Secretary of State for Foreign and Commonwealth Affairs
168–9, 724
Abbott v. Republic of South Africa (Decision No. 107/92) [113.411] 630,
664, 665
Abu Dhabi Arbitration (Petroleum Development Limited/Sheikh of Abu
Dhabi) [18.144] 99, 522
Re Accession of the European Community to the Convention for theProtection of Human Rights and Fundamental Freedoms (Opinion
2/94) [108.225] 344
Acquisition of Polish Nationality (Series B, No. 7) [2.292] 908
Adams v. Adams [52.45] 400
ADM Milling Company v. Republic of Bolivia [63.56] 642
Administration des Chemins de Fer du Gouvernement Iranien v. Sociétà
Levant Express Transport [52.315] 630
Administration des Douanes v. Société Cafés Jacques Vabre and Weigel
et Compagnie [93.240] 157
Admission to the United Nations (Conditions for Admission of a Stateto Membership) [15.333] 387, 1004, 1088, 1187
AE v. Switzerland 255
Aegean Sea Continental Shelf Case (Greece v. Turkey) [60.511] 812, 814
xxv© Cambridge University Press

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Frontmatter
More informationxxvi

table of cases

Aegean Sea Continental Shelf Case (Greece v. Turkey) (Interim
Measures) [60.524] 988
Aegean Sea Continental Shelf Case (Greece v. Turkey) (Jurisdiction)[60.562] 430, 968, 1000
Aerial Incident of 27 July 1955 Case (Preliminary Objections) (Israel v.
Bulgaria) [27.557] 474, 731
Aerial Incident (USA v. USSR) Case 974, 978
Aerotrade Inc. and Aerotrade International Inc. v. Republic of Haiti[63.41] 644
Affo and Another v. Commander Israel Defence Force in the West Bank
(HC 785/87); Raﬁa and Another v. Commander Israel Defence
Force in the Gaza Strip and Another (HC 845/87); Hindi v.
Commander Israel Defence Force in the Judea and Samaria Region(HC 27/88) [83.121] 151
Afouneh v. Attorney-General (Palestine) [10.327] 605
Agbor v. Metropolitan Police Commissioner [52.382] 682
AGIP Spa v. People’s Republic of the Congo [67.318] 741, 743, 746, 945
Ex parte Ahmed and Patel 138
Air India v. Wiggins [77.276] 612
Air Inter v. Bornier [89.29 (note)] 473
Air Services Agreement of 27 March 1946 Case (United States/France)[54.303] 708, 710
Akayesu Case 264
Akdivar v. Turkey 329
Al-Adsani v. Government of Kuwait and Others [100.465, 103.420,
107.536] 574, 639
Al-Adsani v. United Kingdom (Application No. 35763/97) (Merits)[123.24] 303, 323, 639–40
Re Al-Fin Corporation’s Patent [52.68] 377, 401
Alabama Claims 104–5, 125, 847, 952
Alcom Limited v. Republic of Colombia [74.170] 630, 640, 641, 664–5,
679
Alejandre v. Republic of Cuba and the Cuban Air Force [121.603] 117,
118, 478, 639
Alemán Lacayo v. Nicaragua 360
Alfred Dunhill of London, Inc. v. Republic of Cuba et al. [66.212] 171,628, 643–4
Re Alien Children Education Litigation 146
Álvarez et al. v. Colombia 360
Alvarez-Machain Case [95.355] 605–6, 609–10
Amalgamated Metal Trading v. Department of Trade and Industry 165© Cambridge University Press

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Frontmatter
More informationtable of cases

xxvii

Ambatielos Claim (Greece v. United Kingdom) [23.306, 24.291] 254,
730, 842, 852, 955, 978
Amco Asia Corporation and Others v. Republic of Indonesia [89.366]
94, 96, 735, 738, 745, 945
Amerada Hess Shipping Corporation v. Argentine Republic [79.1] 145,
609
America West Airlines Inc. and Another v. GPA Group Limited andOthers [92.454] 469
American Insurance Association v. Garamendi 169
American International Group Inc. (AIG) and American Life Insurance
Company v. Islamic Republic of Iran and Central Insurance of Iran
(Bimeh Markazi Iran) (Case No 2) [84.645] 741, 747
Aminoil Case (Government of Kuwait and American Independent Oil
Company) [66.518] 716, 739, 745
Amministrazione delle Finanze dello Stato v. Simmenthal SpA (No. 2)(Case 106/77) [93.45] 1178
Amoco Iran Oil Company v. Iran, National Iranian Oil Company,
Iranian Offshore Oil Company and Iranian Oil Company (CaseNo. 55) [83.490] 746
Amoco Overseas Oil Company and Amoco Transport Company v.
Compagnie Nationale de Navigation and T/S Amenas [63.252]
643
AN International Bank plc v. Republic of Zambia and Others [118.602]
667
Anderson, v. NV Transandine Handelmaatschappij et al. [10.10] 173
Anglo-French Continental Shelf Case (First Decision) [54.6] 101, 105,
493, 529, 530, 536, 538, 539, 571, 823, 827–8, 844, 958
Anglo-Iranian Oil Company Case (Interim Measures) [19.501] 988
Anglo-Iranian Oil Company Case (Preliminary Objection) [19.507]
126, 813
Anglo-Norwegian Fisheries Case [18.86] 73, 74, 85, 104, 125, 429, 434,
438, 440, 441, 496–7, 507, 543, 544, 571, 575, 582
The Anna 420, 505
The Annette [1.43] 394
Antarctic cases (1958) 974
The Antelope 577
Applicability of Article VI, Section 22, of the Convention on thePrivileges and Immunities of the United Nations [85.300] 1210–11
Applicability of the Obligation to Arbitrate under Section 21 of theUnited Nations Headquarters Agreement of 26 June 1947 [82.225]
125, 150, 847, 970, 1004, 1207

© Cambridge University Press

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Frontmatter
More information

xxviiitable of cases

Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) (Orderon Withdrawal of Counterclaims) [115.206] 265, 990
Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia)(Preliminary Objections) [115.1, 115.10] 116, 265, 816, 882, 885,
888, 970, 971, 974, 977, 987, 988
Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia)(Request for Revision of the Judgment of 11 July 1996: Preliminary
Objections) 998
Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia
and Montenegro)) (Request and Further Requests for the
Indication of Provisional Measures) [95.1] 119, 264–5, 868, 963,
994, 1119, 1149
Aquarone case 157
Arab Monetary Fund v. Hashim and Others (No. 3) [83.243, 85.1] 401,
1191
Arab Republic of Syria v. Arab Republic of Egypt (Case No. 298-DF)[91.288] 166
The Arantzazu Mendi [9.60] 396–7, 403
Arbitral Award Made by the King of Spain on 23 December 1906 Case
(Honduras v. Nicaragua) [30.457] 440, 845, 957
Arbitral Award of 31 July 1989, Case concerning (Guinea-Bissau v.
Senegal) (Request for Indication of Provisional Measures andJudgment) [92.1] 988
Argentina (Republic of) and Others v. Weltover Inc. and Others[100.509] 643–4, 645
Argentina/Chile Frontier Case (Palena) [38.10] 431, 452, 845, 954, 959
Argentine Airlines v. Ross [63.195] 643
Re Argoud [45.90] 605
Arkansas v. Tennessee [9.112] 420
Armament Dieppe SA v. United States 494
Armed Activities on the Territory of the Congo (Congo v. Uganda)(Request for Provisional Measures) 1150
Artico Case [60.182] 844
Artukovic v. Rison (In the Matter of the Extradition of Artukovic)[79.383] 865
Asociación de Reclamantes v. United Mexican States [84.87] 623© Cambridge University Press

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Frontmatter
More informationtable of cases

xxix

Associated Provincial Picture Houses Ltd v. Wednesbury Corp. 616
Asylum Case (Colombia v. Peru) (Haya de la Torre Case) (Judgment)[17.280] 72–3, 74, 79, 82, 85, 87, 410, 675
Asylum Case (Colombia v. Peru) (Haya de la Torre Case) (Request forInterpretation) [17.339] 968, 997
Asylum Case (Colombia v. Peru) (Haya de la Torre Case)(implementation of judgment) [18.349] 967, 991
Athens Maritime Enterprises Corporation v. Hellenic Mutual War Risks
Association (Bermuda) Limited [78.563] 549
Attorney-General for Canada v. Attorney-General for Ontario [8.41]
138, 151–2
Attorney-General (England), Reference (No. 1 of 1982) 619
Attorney-General (England) v. Associated Newspapers Ltd 140
Attorney-General for Fiji v. Tobt Jones House Ltd 381
Attorney-General (New Zealand) v. Ortiz and Others [78.591] 577
Australia and New Zealand Bank v. Commonwealth of Australia 624,
641–2
Austria v. Italy 328, 843
Austro-German Customs Union Régime [6.26, 6.427] 181, 189–90
Autocephalous Greek-Orthodox Church of Cyprus and the Republic of
Cyprus v. Goldberg and Feldman Fine Arts, Inc. [108.488]
213, 406
Avena (Mexico v. USA) (Provisional Measures) 689
Azazh Kebbeda Tesema and Others v. Italian Government [9.93] 389
Azinian v. United Mexican States [121.1] 703
Baboeram-Adhin and Others v. Suriname (Communication Nos 146/
1983 and 148-154/1983) [94.377] 255
Baccus SARL v. Servicio Nacional del Trigo [23.160] 626, 649, 650
Baker v. Carr 169
Ballantyne Case 275
Banamar-Capizzi v. Embassy of the Popular Democratic Republic of
Algeria (Case No. 2085) [87.56] 665
Banco Nacional de Cuba v. Chase Manhattan Bank [66.421] 744
Banco Nacional de Cuba v. Sabbatino et al. [35.2] 170–1, 404
Bandes v. Harlow and Jones Inc.; Harlow and Jones Inc. v. Bandes andAlvarez [92.468] 172
Bank of Credit and Commerce International (Overseas) Limited (InLiquidation) v. Price Waterhouse (A Firm) and Others [111.604]
655© Cambridge University Press

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Frontmatter
More informationxxx

table of cases

Banković v. Belgium and Others (Application No. 52207/99)(Admissibility) [123.94] 324, 579
Barbie [78.124, 100.330] 157, 595, 596
Barcelona Traction, Light and Power Company Limited, Case
concerning (New Application, 1962) (Belgium v. Spain) (Second
Phase) [46.178] 98–9, 100, 127, 224, 714, 723–4, 728–9, 886, 978
Barrandon v. United States [113.464, 116.622] 647
Bašić et al. v. Republika Srpska 354
Beagle Channel Arbitration (Argentina/Chile) [52.93] 105, 418, 421,
432, 443, 447, 507, 811, 840, 872, 954, 957, 958
Behring International Inc. v. Imperial Iranian Air Force, et al. [63.261]
661
Behring Sea Arbitration 952, 986
Belgian Linguistics Case [45.114] 269, 322, 329
Belgium v. Nicod and Another [82.124] 672
Belgium (Government) v. Postlethwaite 610
Belilos v. Switzerland [88.635] 824
Benaı̈m c. Procureur de la République de Bordeaux 195
Benvenuti and Bonfant Srl v. Government of the People’s Republic of theCongo [65.88, 67.345] 741, 745, 746, 945
Bergman v. de Sieyès [14.150] 685
Berizzi Brothers Company v. SS Pesaro [3.186] 626
Berry Case 299
Beth El Mission v. Minister of Social Welfare (Israel) [47.205] 260
Biloune and Marine Drive Complex Limited v. Ghana Investments
Centre and the Government of Ghana [95.183] 741–2, 746
Birch Shipping Corporation v. Embassy of the United Republic of
Tanzania [63.524] 664
Blathway v. Baron Cawley 140, 167
Board of Trade v. Owen 581
Boffolo Case 736
Bolivian Railway Company Case 706
Boos, Waller and Brooker v. Barry and Others [121.499] 7, 143, 671–2,
681
Botswana/Namibia case 420, 426, 434, 452, 840
Re Bottali [78.105] 883
Boudellaa et al. v. Bosnia and Herzegovina and the Federation of Bosnia
and Herzegovina 354, 1052
Bouzari and Others v. Islamic Republic of Iran [124.427] 639
Boyle and Rice v. UK 330© Cambridge University Press

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Frontmatter
More informationtable of casesxxxi

BP Exploration Company (Libya) Limited v. Libyan Arab Republic[53.297] 717, 742, 956
Braka v. Nacional Financiera 643
Brannigan and McBride v. UK 330
Branno v. Ministry of War [22.756] 1190, 1205
Brazilian Embassy Employee Case (Case No. 706) [116.625] 156, 648
Brazilian Federal Loans Case [5.466] 126, 710
Brcko Inter-Entity Boundary Case 392
Breard v. Greene; Republic of Paraguay et al. v. Gilmore et al.; Re Breard;
Republic of Paraguay et al. v. Gilmore III et al. [118.22] 149, 150
Ex parte Brind [84.754, 85.29] 137, 139, 140, 153
British Airways Board v. Laker Airways Limited and Another [74.36]
166, 615
Ex parte British Council of Turkish Cypriot Associations and Another[112.735] 167
British Guiana–Venezuela Boundary Arbitration 428, 952, 955, 957
Brogan Case 331
Brown v. United States 144
Brown v. Whimster 140
Buchanan v. Babco 141
Buck v. Attorney-General (England) [42.11] 167, 623
Buraimi Arbitration 957
Burkina Faso/Mali Frontier Dispute (Judgment) [80.459] 84, 102, 115,
271, 412, 431, 432, 436, 440–1, 443, 444, 447–8, 449, 450–1, 813,
872, 899, 965
Buron v. Denman 163
Buttes Gas and Oil Company and Another v. Hammer and Another(Nos. 2 and 3) [64.331] 623
Buttes Gas and Oil Company and Another v. Hammer and Another (No.
3) [64.273] 163–4, 166, 167
Buvot v. Barbuit 129
C Czarnikow Limited v. Centrala Handlu Zagranicznego Rolimpex[64.195, 64.204] 651
Caglar v. Billingham (Inspector of Taxes) and Related Appeals [108.510]
213, 401
Caire Case [5.146 et al.] 699, 703
Callejo v. Bancomer SA [84.106] 643
Calley v. Calloway 594
Camacho v. Rogers 149© Cambridge University Press

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Frontmatter
More information

xxxii

table of cases

Cameroon v. Nigeria (Case Concerning the Land and Maritime
Boundary Between Cameroon and Nigeria) (Countermeasures:
Order of 30 June 1999) 990
Cameroon v. Nigeria (Case Concerning the Land and Maritime
Boundary Between Cameroon and Nigeria) (Judgment) 102, 115,
125, 202, 418, 430, 436, 437, 441, 445, 537, 539–40, 816, 846–7,
920, 974, 975, 996
Cameroon v. Nigeria (Case Concerning the Land and Maritime
Boundary Between Cameroon and Nigeria) (Preliminary
Objections) 440, 920, 968, 971, 979
Cameroon v. Nigeria (Case Concerning the Land and Maritime
Boundary Between Cameroon and Nigeria) (Provisional Measures)
968, 988, 989
Cameroon v. Nigeria (Case Concerning the Land and Maritime
Boundary Between Cameroon and Nigeria) (Request forInterpretation) 997
Campbell and Cosans Case (Merits) [67.480] 329
Can and Others v. United States [107.255] 170
Canada v. Cargnello (Decision No. 4017/1998) [114.559] 156, 647
Canavero Case 727
Canepa v. Canada 298
Carbonar v. Magurno (Decision No. 9675/1993) [114.534] 648
Carey and New England Petroleum Corporation v. National Oil
Corporation and the Libyan Arab Republic [63.164, 63.232] 653
Carl Zeiss Stiftung v. Rayner and Keeler Limited (No 2) [43.23] 368,
399–400, 402, 404
The Caroline 1024–5, 1030, 1034
Cassell v. Broome 140
Castillo Páez v. Peru [116.451] 362
Castro and Others v. Saudi Arabia [63.419] 644
Celebići Case 236
Centre for Industrial Development v. Naidu [115.424] 664
Cerrutti Arbitrations 957
Certain Expenses of the United Nations (Article 17, paragraph 2, of theCharter) [34.281] 8, 95, 843, 967, 1004, 1196
Certain German Interests in Polish Upper Silesia Case [3.5 et al.] 95, 97,
127, 719, 734, 742, 905
Certain Phosphate Lands in Nauru (Nauru v. Australia) (Preliminary
Objections) [97.1] 201, 202, 713, 975, 982, 1187

© Cambridge University Press

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Frontmatter
More informationtable of cases

xxxiiiCGM Industrial (Pty) Limited and Others v. KPMG and Others[121.472] 630
Chahal v. United Kingdom [108.385] 332
Chamizal Arbitration 420, 427, 452, 957
Champagnie Case 299
The Charkieh 625
Chase Manhattan Bank v. Trafﬁc Stream (BVI) Infrastructure Ltd 729
Chattin Case [4.248] 734
Chen v. Korean Airlines Ltd 470
Chierici and Rosa v. Ministry of the Merchant Navy and Harbour Ofﬁceof Rimini [71.258] 179
China (Republic of) v. Merchants’ Fire Assurance Corporation of New
York [5.42] 386
Chisholm and Company and Chisholm v. Bank of Jamaica and Barber[121.487] 643
Chorzów Factory Case (Germany v. Poland) (Merits) [4.258] 95, 697,
715, 745, 891, 905, 995
Chow Hung Ching and Si Pao Kung v. R [15.147] 152
Chrysostomos v. Turkey 328
Chumbipuma Aguirre v. Peru (Barrios Altos Case) 254, 362
Chung Chi Cheung v. R [9.264] 132, 133
Chung Kheng Lin v. Minister for Immigration (Australia) 153
City of Berne v. The Bank of England 394
Civil Air Transport Incorporated v. Central Air Transport Corporation[19.85] 399, 407
Clerget v. Banque Commerciale pour l’Europe du Nord and Others[65.54] 386
Clipperton Island Award (France and Mexico) [6.105] 432, 433–4
CME Czech Republic BV v. Czech Republic 715, 718
CND v. Prime Minister of the UK and Others 166
Coccia v. Turkish Airlines 470
Coe (On Behalf of the Wiradjuri Tribe) v. Commonwealth of Australia
and Another [118.322] 152
Colombia–Venezuela Boundary Arbitration [1.84, 1.371] 447, 872
Comercial F SA v. Council of Ministers (Case No. 516) [88.691] 722
Commercial and Estates Company of Egypt v. Board of Trade [2.11,
2.423] 132
Commission of the European Communities v. Council of the European
Communities (Case 22/70) [47.278] 217© Cambridge University Press

www.cambridge.org

XXX~VTABLE OF CASES

Committee of United States Citizens Living in Nicaragua v. Reagan[85.248] 144
Commonwealth of Australia and Another v. State of Tasmania andOthers [68.266] 199-200
Re Competence of Conciliation Commission [22.867] 956
Re Competence of the European Community to Conclude International
Agreements Concerning Services and the Protection of Intellectual
Property (Opinion 1/94) [105.75] 217
Competence of the General Assembly for the Admission of a State to theUnited Nations [17.326] 840, 843, 1088, 1194
Compulsory Membership in an Association Prescribed by Law for thePractice of Journalism (Articles 13 and 29 American Convention
on Human Rights) (Advisory Opinion OC-5/85) [75.30] 844
Condor and Filvem v. Minister of Justice (Italy) (Case No 329) [101.394]
662,665
Congo v. Belgium 579, 591, 593, 594, 598, 658-9, 969, 971, 984
Congo v. France 659. 989
Constitutional Court Case 360
Controller and Auditor General (New Zealand) v. Sir Ronald Davidson
638
Cook v. United States (The Maze1 Tov) [6.3] 144, 149
Coreck Maritime GmbH v. Sevrybokholodflot [107.658] 866
Corfu Channel Case (United Kingdom v. Albania) (Merits) [16.155] 95,
103, 192,260,512-13,544,697,699-700,701,719,761,763,772,
842,973,974- 5,985,986,997, 1021-2, 1039, 1066, 1103
Corfu Channel Case (United Kingdom v. Albania) (Preliminary
Objection) [15.349] 974
Corporacion Venezolana de Fomento v. Vintero Sales Corporation et al.
[63.299, 63.4771 643
Costa v. Ente Nazionale Energia Elettrica (ENEL) (Case 6/64) [93.23]
217, 1178
Council for Civil Service Unions v. Minister for the Civil Service 163, 168
The Cristina (Compania Naviera Vascongado v. SS Cristina) [9.250] 133,
579,626
Croatia et al. v. Girocredit Bank AG der Sparkassen 895
Crotty v. An Taoiseach and Others [93.480] 154
Currie Case 299
Cutting Case 589
Cyprus v. Turkey (Application No. 25781194) [120.10] 213, 324, 329,
332,392,697,705

TABLE OF CASES

XXXVCyprus v. Turkey, Decisions on the Admissibility of the Applications(Nos 6780174, 6950175, 8007177) [62.4] 255, 328, 329, 1075
Cyprus Cases (Greece v. UI<) 328
Cyprus Cases (Greece v. UK) (Second Case) 255
The Cysne (Portugal v. Germany) [5.150 et al.] 708
Dallal v. Iran, Bank Mellat (formerly International Bank of Iran) (CaseNo. 149) [75.126] 727
Dalmia Cement Company Limited v. National Bank of Pakistan [67.611]
946
Dames & Moore v. Regan [72.270] 147,631
Danzig Railway Officials Case (Jurisdiction of the Courts of Danzig)[4.281,4.287] 233
Davy Case 702
Day v. TWA Inc. 473
De Andrade v. De Andrade [118.299] 683
De Becker v. Belgium (No. 214156) (Admissibility) [25.172] 329
De Haber v. Queen of Portugal 625
De Queiroz v. State of Portugal [115.430] 648
De Sanchez v. Banco Central de Nicaragua and Others [88.75] 146,635,
738
Definition of Other Treaties Subject to the Interpretation of theInter-American Court 360
Delagoa Bay Case 426
Delalit Case 303
Delgamuukw and Others v. The Queen in Right of British Columbia
and Others; First Nations Summit and Others, Interveners[115.446] 278
Dellums v. Bush [87.684] 169
Derbyshire County Council v. Times Newspapers Ltd 140
Deutsche Continental Gas-Gesellschaft v. Polish State [5.11] 179, 371
Dickinson v. Del Solar; Mobile and General Insurance Company
Limited (Third Party) [5.299] 682
Diergaardt et al, v. New Zealand 272
Dietrich v. The Queen 152
Difference Relating to Immunity from Legal Process Case of a Special
Rapporteur (Advisory Opinion) [121.405] 200,624, 702, 1002-4,
1210
Diggs v. Dent 149
Diggs v. Schultz [60.393] 149

mi

TABLE O F C A SE S

Director of Public Prosecutions v. Doot and Others [57.117] 580
Director of Public Prosecutions v. Stonehouse [73.252] 581
Re Ditfort, ex parte Deputy Commissioner of Taxation [87.170] 169
Diversion of Water from the River Meuse (Netherlands v. Belgium)[8.444] 100, 985
Re Doe (Mr and Mrs); Mr and Mrs Doe v. United States [121.567] 656
Dole Food Co. v. Patrickson 643
Donnelly Case 255
Dow Chemical Iberica v. Commission 344
Dr Breger's Case 736
Draft Convention of the International Atomic Energy Agency on the
Physical Protection of Nuclear Materials, Facilities and Transports(Ruling 1/78) [99.292] 217
Dralle v. Republic of Czechoslovakia [17.155] 628
Drozd and Janousek v. France and Spain 255, 323
Dubai Bank v. Galadari 168
DubaiISharjah Border Arbitration [91.543] 413,419,432,435,443,495,
506,952,955
Duc de Guise Claim [18.423] 702
Re Duchy of Sealand [80.683] 179
Dudgeon Case (Merits) [67.395] 329, 331
Duff v. R [73.678] 681
Duff Development Company v. Kelantan and Another [2.124,2.140]
172,627-628
Duggan (State of Ireland) (Duggan v. Tapley) [18.336] 260
Duke of Brunswick v. King of Hanover 163,625
Dumont v. State of Amazonas [15.140] 654
Eain v. Wilkes [79.439] 610
East Timor Case (Portugal v. Australia) [105.226] 107, 116, 229, 231,
968,970,976,984, 1004, 1102
East Timor (Democratic Republic of), Fretilin and Others v. State (TheNetherlands) [87.73] 372
Eastern Carelia Case [2.394] 955, 1001, 1002
Eastern Greenland (Legal Status of) (Denmark v. Norway) [6.95, 6.428,
6.4301 97,412,431,432- 3,434- 5,437,438,439,443,445,456, 813,
844,846
Eastern Treaties Constitutionality Case [73.691, 78.1761 155
Eckhardt v. European Organization for the Safety of Air Navigation(Eurocontrol) (No. 2) [94.331] 1207

TABLE O F CASES

xxxvii

Eckle Case (Merits) [68.48] 329
Edye v. Robertson 148
Effect of Reservations on the Entry into Force of the American
Convention (Articles 74 and 75) (OC-2/82) [67.559] 360, 843, 886
Egypt (Arab Republic of) v. Gamal-Eldin [104.673] 646
Egyptian Workers' Claims (Report, Final Report and Recommendations
made by the Panel of Commissioners) [117.195] 949
Eichmann Case [36.5] 151, 192, 589, 594, 604
El A1 Israel Airlines v. Tsui Yuan Tseng 471
El Salvador v. Nicaragua 499
El SalvadorIHonduras (Land, Island and Maritime Frontier Dispute)[97.112, 97.2661 84, 87, 102, 207, 412,419, 420, 432, 436,437, 438,
447,448,449,864,906,965,971,975,985,994
El Salvador/Honduras (Land, Island and Maritime Frontier Dispute:
Nicaragua intervening) [97.154] 450-1,49 1,499-500, 986, 992-3
Electricity Company of Sofia and Bulgaria (Provisional Measures)(Belgium v. Bulgaria) 989
Elettronica Sicula SpA (ELSI) (United States v. Italy): see ELSI Case
(United States v. Italy) [84.3111
Ellerman Lines Limited v. Murray (The Croxteth Hall) [5.342] 140
ELSI Case (United States v. Italy) [84.311] 96-7, 126,440, 729, 731-2,
965,985
Empire of Iran Case [45.57] 628, 630, 633
Empresa Exportadora de Azucar (Cubazucar) v. Industria Azucarera
Nacional SA (IANSA) [64.368]164, 623, 655
Enforceability of the Right to Reply or Correction (Articles 14(1), l(1)and 2 of the American Convention on Human Rights) (Advisory
Opinion OC-7/85) [79.336] 840
EP and Others v. Colombia (Communication No. 31811988) [96.705]272
Equal Employment Opportunity Commission v. Arabian American Oil
Company and Aramco Services; Ali Boursan v. Arabian American
Oil Company and Aramco Services [90.617] 612
Erdemovit (Case IT-96-22-A) (Sentencing Appeal) (Appeals Chamber)[111.298] 127
Eritrea (Government of) and Government of the Republic of Yemen(Phase Two: Maritime Delimitation) [ 119.4171 87
EritreaIEthiopia Case 418- 19,430,431,437,440,441, 840
EritreaIYemen Arbitration (Phase One: Territorial Sovereignty and
Scope of the Dispute) [114.1] 93,417,425,430,432,433,434,
435- 6,437,438,440,446,460,496,874,953- 4,958

xxxviii

TABLE O F C A SE S

EritreaIYemen Arbitration (Phase Two: Maritime Delimitation)[119.417] 501, 536, 538, 540, 953-4, 958
EritreaIYemen Arbitration, Decision (19 April 2002) 97, 115, 436-7
ERT 344
Esphahanian v. Bank Tejarat (Case No. 157) [72.478] 727
Espionage Prosecution Case (Case No. 2 BGs 38/91) [94.68] 863
Ette Case 822
Eurodif Corporation v. Islamic Republic of Iran 665
European Commission of the Danube, Jurisdiction of, between Galatz
and Braila (Series B, No. 14) [4.126 et al.] 72
European Economic Area (Draft Treaty) (No. 1) (Opinion 1/91)[100.165] 1174
European Economic Area (Draft Treaty) (No. 2) (Opinion 1/92)[100.197] 1174
European Molecular Biology Laboratory Arbitration [105.1] 1208
Exparte Everett [84.713] 168
Exceptions to the Exhaustion of Domestic Remedies in Cases ofIndigency 255
Exchange of Greek and Turkish Populations (Series B, No. 10) [3.362
et al.] 127, 128
Re Exemption of US Forces from Canadian Criminal Law, Reference[12.124] 152
Extradition of Greek National (Germany) Case [22.520] 260
Factortame Limited v. Secretary of State for Transport (No. 1) [93.652]
162
The Fagernes [3.126] 172
The Fama 421
Faurisson v. France (Communication No. 55011993) [115.355] 255
Fayed v. Al-Tajir [86.1311 687
Fedechar Case 1196
Federal Prosecutor (Switzerland) v. Kruszyk and Others [102.176]
675
Feldman c. Etat de Bahia 654
Exparte Ferhut Butt [116.607] 168, 688, 730
Fernandez v. Wilkinson [87.446] 144, 146
Filartiga v. Pena-Irala [77.169] 145, 257, 607-8
I11 Finance Ltd v. Aegis Consumer Finance Inc. 729
Finnish Vessels in Great Britain during the War (Finland v. GreatBritain) [7.231] 128, 254, 731

TABLE O F CASES

xxxix

First American Corporation and Others v. Al-Nahyan and Others[121.577] 172, 657
First Fidelity Bank NA v. Government of Antigua and Barbuda
Permanent Mission [99.125] 669, 848
First National City Bank v. Banco Para el Comercio Exterior de Cuba
[80.566] 653, 663
First National City Bank of New York v. Banco Nacional de Cuba
[66.102] 171
Fisheries Jurisdiction Case (Spain v. Canada) (Jurisdiction) [ 123.1891
822,842,969,971,986
Fisheries Jurisdiction Case (United Kingdom v. Iceland) (Merits)[55.238] 79, 98,493, 518-19, 556, 811, 849, 856, 919, 920, 921, 966,
988,997,999
Flatow v. Islamic Republic of Iran and Others [121.618] 602, 639, 657,
664
Flegenheimer Claim [25.91] 725, 726
Re Flesche [16.266] 260
Food and Agriculture Organization v. INPDAI (Case No. 5399) [87.1,
101.3611 1208
Foremost-McKesson Inc. and Another v. Islamic Republic of Iran andOthers [101.536] 653
Former Syrian Ambassador to the German Democratic Republic (CaseNo. 2 BvR 1516196) [115.595] 669,686
Foster v. Neilson 146, 147, 148
Fothergill v. Monarch Airlines Limited [74.627] 140, 141, 142,470
Foxworth v. Permanent Mission of the Republic of Uganda to the United
Nations [99.138] 663
France v. Commission of the European Communities (Case C-327191)[101.30] 618
Franqois v. State of Canada [115.418] 648
Frankel v. Banco Nacional de Mexico 643
Free Zones of Upper Savoy and the District of Gex Case (France1
Switzerland) (Order of 19 August 1929) [5.461] 919
Free Zones of Upper Savoy and the District of Gex Case (France1
Switzerland) (Judgment) [6.362 et al.] 95, 125, 856, 874
French Consulate Disabled Employee Case (Case No. AZ 1IZ 4/88)[114.507] 647
Frisbie v. Collins 605
Frontier Dispute between Burkina Faso and Mali, Case concerning(Provisional Measures) [80.450] 989

Xl

TABLE O F CASES

Fruehauf Case 615
Furundiija (Case IT-95-1711) [121.213] 116, 117, 128, 1074
Gabrikovo-Nagymaros Project Case (HungaryISlovakia) (Judgment),[116.1] 113, 695, 697, 708-9, 712-13, 715, 778, 793, 812, 853, 854,
855,856,874,885,985,995
Gallardo, In the Matter of Viviana et al. (Government of Costa Rica (Inthe Matter of Viviana Gallardo et al.) (G 101181)) [67.577] 362
Garcia and Garza Case [3.215] 734
Garland v. British Rail Engineering Limited [93.622] 139
Gdynia Ameryka Linie Zeglugowe Spolka Akcyjna v. Boguslawski andAnother [19.72] 397-8
Gemini Shipping Inc, v. Foreign Trade Organization for Chemicals andFoodstuffs (Tafco) and Another [63.494, 63.5691 642
General Comment (CESCR) No. 3 (international cooperation) 281,288
General Comment (CESCR) No. 4 (adequate housing) 288
General Comment (CESCR) No. 5 (disabilities) 288
General Comment (CESCR) No. 6 (older persons) 288
General Comment (UNHRC) No. 12 on Self-Determination 271-2
General Comment (UNHRC) No. 22 on Non-Discrimination 267, 268,
269,295
General Comment (UNHRC) No. 23 on Minorities 276,296
General Comment (UNHRC) No. 24 on Issues relating to Reservations
made upon Ratification or Accession to the Covenant or the
Optional Protocols thereto, or in relation to Declarations under
Article 41 of the Covenant [107.64] 118
General Comment (UNHRC) No. 28 on Rights of Women 296
General Comment (UNHRC) No. 29 on Non-Derogable Provisions 295
General Comment (UNHRC) on Reservations 296
General Comment (UNHRC) on Rights of the Child 295
Georgia v. South Carolina [91.439] 420
Gerbaud v. Meden [18.288] 866
German External Debts Agreement Case [22.611] 839, 920
German Settlers in Poland Case (Series B, No. 6) [2.71 et al.] 95,891,905
Germany-Poland Border Treaty Constitutionality Case (Case No. 2 BvR
1613191) [108.656] 906
Ghaddafi Case 657
Re Gill [6.203] 704, 710
Gittler v. German Information Center [63.170] 653
Godinez Cruz Case [95.320] 362

TABLE O F CASES

Golder Case [57.200] 331
Goldman v. Thai Airways International Limited [ 101.3 161 141
Goldwater v. Carter 389, 623
Gonzalez Corporation v. Consejo Nacional de Produccion de Costa Rica
and Another 163.3701 645
Gosalia v. Agarwal and Others [118.429] 906
Re Grand Jury Proceedings, Doe No. 700 181.5991 656
Grand Prince Case 547, 1005, 1010
Grand-Duchy of Luxembourg v. Compagnie Luxembourgeoise de
Telediffusion and Compagnie Luxembourgeoise Assurance 'Le
Foyer' [91.281] 85
Grant Case 299
Great Belt Case (Passage through the Great Belt (Finland v. Denmark))(Provisional Measures) [94.446] 964, 988, 989, 995
Greco-Bulgarian Communities (Series B, No. 17) 15.41 125,230, 847
The Greek Case 255
Greenham Women against Cruise Missiles and Others v. Reagan andOthers [99.43] 169
Grein v. Imperial Airways Limited [8.453] 469
Grisbadarba Case 421,426, 507
Guatemalan Genocide Case 596
Guinea-Bissau v. Senegal (Arbitral Award of 31 July 1989 (GuineaBissau v. Senegal)) 177.6351 982
GuineaIGuinea-Bissau Maritime Delimitation Case 177.6351 532, 537,
864
Gulf of Maine Maritime Boundary Case [71.74] 84,90, 101,437,440,
524,527,531,534,537,538,540,964-5
Gur Corporation v. Trust Bank of Africa 175.6751 268, 382,400,402,403
Gut Dam Case 763
Re Gutierrez [24.265] 588

Re H (Minors) 141
Habeas Corpus in Emergency Situations (Articles 27(2), 25(1) and 7(6)of the American Convention on Human Rights) (Advisory
Opinion OC-8/87) 196.3921 361
Haddad v. Societk Air France [89.26] 473
Haile Selassie v. Cable and Wireless Limited (No. 2) 19.941 383, 396, 893
Hamilton Case 299
Handel and Others v. Artukovic [79.397] 608
Handelskwekerij GJ Bier BV v. Mines de Potasse d'Alsace SA 156

xlii

TABLE OF CASES

Handyside Case [58.150] 330, 331
Hartford Fire Insurance Company and Others v. California and Others[100.566] 613, 614
Harza Engineering Company v. Islamic Republic of Iran (Case No. 98)[70.117] 741
Hauer v. Land Rheinland-Pfaltz 344
Havana Club Holding, Inc. v. Galleon SA 149
Hawaiian Claims [3.80] 907
Hazletine Research Inc. v. Zenith Radio Corporation 612
Heathrow Airport User Charges Arbitration [102.215, 102.216, 102.224,
102.5641 466,469, 731, 953
Re Herbert Wragg & Co. Ltd 128
Herd Case 705
Hernandez v. Air France 473
Hesperides Hotels Limited and Another v. Aegean Turkish Holidays
Limited and Muftizade [73.9] 172,400
Hilaire and Others v. Trinidad and Tobago 360
Hildebrand v. Champagne [82.121] 683
Hilton v. Guyot 143
Hirsch v. State (Israel) and State of Germany [113.543] 661
Hispano Americana Mercantil SA v. Central Bank of Nigeria [64.221]
630
HMHK v. Netherlands [94.342] 722
Holiday Inns v. Morocco 945
Holland v. Ireland (Communication No. 59311994) [ I15.2771 255
Holland v. Lampen-Wolfe [119.367] 623, 639, 652
Holmes v. Bangladesh Biman Corporation [87.365] 471, 580, 612
Holy See v. Starbright Sales Enterprises Inc. [102.163] 219, 631
Home Missionary Society Case [ 1.173, 1.376 (note)] 699, 705
Re Honecker [80.365] 656
Horgan v. An Taoiseach 154, 166
Hostages Case: see United States Diplomatic and Consular Staff inTehran Case (USA v. Iran)HSA et al. v. SA et al. 596, 657
Huber Case 719
Huntington v. Atrill 577
Iloilo Claims Case [3.336] 421
The I'm Alone (CanadaIUnited States) [7.203] 551, 718, 719

TABLE OF CASES

xliii

IMCO Case (Constitution of the Maritime Safety Committee) [30.426]
546, 1187, 1194
Imperial Chemical Industries Limited v. Commission of the European
Communities (Case 48/69) [48.106] 619
Import Prohibition of Certain Shrimp and Shrimp Products Case 941
Imports of Agricultural, Textile and Industrial Products Case 941
INA Corporation v. Islamic Republic of Iran (Case No. 161) [75.595]
745, 746
India (Ministry of Finance (Revenue Division)) v. Taylor and Another[22.286] 577
Indonesia/Malaysia Case 431,433,434, 839, 963
Indonesia/Malaysia Case (Philippines Intervening) 986,993
Inglis v. Sailor's Snug Harbour 587
Inland Revenue Commissioners v. Collco Dealings Limited [33.1]
140
Interhandel Case (Switzerland) v. United States (Preliminary
Objections) [27.475] 254, 723, 731, 980, 981
Exparte International Air Transport Association 471
International Association of Machinists and Aerospace Workers v.
Organization of Petroleum Exporting Countries (OPEC) et al.
[63.284, 66.4131 623
International Responsibility for the Promulgation and Enforcement ofLaws in Violation of the Convention (American Convention on
Human Rights) (Advisory Opinion OC-14/94) [116.320] 357
International Shoe Co. v. Washington 644, 667
International Status of South-West Africa [17.47] 201, 202,203, 1196
Re International Tin Council [77.18, 80.181] 1198, 1203
International Tin Council v. Amalgamet Inc. [80.30] 1190
Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle
fiir Getreide und Futtermittel (Solange I) (Case 11/70) (Case No. 2
BvL 52/71) [93.362] 162,344
Interpretation of the American Declaration of the Rights and Duties of
Man within the Framework of Article 64 of the American
Convention on Human Rights (Advisory Opinion OC-10187)[96.416] 361
Interpretation of Peace Treaties with Bulgaria, Hungary and Romania,
Second Phase (Advisory Opinion of 18 July 1950) [17.318] 842,
954,970,974, 1001
Interpretation of the Treaty of Lausanne, Article 3, paragraph 2 (Series
B, No. 12) [3.105 et al.] 952

xliv

TABLE O F C A SE S

Intpro Properties (UIZ) Limited v. Sauvel and Others [64.363, 64.3841
680,683
Iowa v. Illinois 105
Iran-United States (Case No. Al18) [75.175] 727, 841
Iran-United States Claims Tribunal v. AS [94.321] 1207
Ireland v. United Kingdom (Irish Case) [58.188] 323, 328, 331, 843
Island of Palmas Arbitration [4.3 et al.] 105, 189, 195, 410, 411-12, 421,
429- 30,431,432,433,435,441,577,697,761
Issa v. Turkey 323
Italian South Tyrol Terrorism Case (No. 2) [71.242] 592
Jabari v. Turkey 332
Jackson and Others v. People's Republic of China [84.132]643
James Case [75.396] 739
Jan Mayen (Maritime Delimitation in the Area between Greenland andJan Mayen (Denmark v. Norway)) [99.395] 99, 100, 115, 501,
534-5,538,540,571
Janes Case [3.218, 3.2561 702
Japan Whaling Association v. American Cetacean Society 169
Jelisi 264
JH Rayner (Mincing Lane) Limited v. Department of Trade and Industry
and Others [77.55] 666
Jimenez v. Aristeguieta et al. [33.353] 657
Johnston v. Chief Constable of the RUC 344
Johnston and Others v. Ireland [89.154] 255, 329
Joyce v. Director of Public Prosecutions [15.91] 592
Juan Ysmael and Company Inc. v. Government of Indonesia [21.95] 627
Jurisdiction of the European Commission of the Danube between Galatz
and Braila (Series B, No. 14) [4.126 et al.] 1195
Jurisdiction of the ICAO Council, Appeal relating to [48.331] 467
Kadahfi Case 157
KadiC v. KaradiiC; Doe I and Doe I1 v. Karadiit [104.135] 144, 145, 146,
170,608-9
Kahan v. Pakistan Federation [18.210] 660, 687
Kalamazoo Spice Extraction Company v. Provisional Military
Government of Socialist Ethiopia [86.45, 90.5961 171, 741
IZambanda Case 264
Katangese Peoples' Congress v. Zaire 364
Kavanagh v. Governor of Mountjoy Prison 154

TABLE O F CASES

IZayishema and Ruzindana Case 264
IZer v. Illinois 605-6
Khan v. Canada (Communication No. 1511994) [108.268] 306
Kirk Case 344
Kirkpatrick and Company Inc. and Others v. Environmental Tectonics
Corporation International 188.931 171-2
Kitok Case 272,275-6
Kjeldsen, Busk Madsen and Pedersen Case [58.117] 255
Klass Case 158.4231 329
Klinghoffer and Others v. SNCAchille Lauro and Others 196.681 144, 170
Koeppel and Koeppel and Another v. Federal Republic of Nigeria andOthers 199.1211 690
Koohi and Others v. United States and Another [99.80] 170
Koowarta v. Bjelke-Petersen and Others; State of Queensland v.
Commonwealth of Australia 168.1811 154, 199
Korean Airlines v. Entiope [89.22] 473
Krajina v. The Tass Agency and Another [16.129] 626,650-1
IZramer and Others (Joined Cases 3,4 and 6176) [99.2171 217
IZremzow v. Austria (Case C-299195) [113.263] 344
Kruger and Others v. Commonwealth of Australia; Bray and Others v.
Commonwealth of Australia [118.371] 152, 153
Krystal v. BOAC 472
Kunstsammlungen zu Weimar v. Elicofon 161.1431 406
Kunstsammlungen zu Weimar and Others v. Elicofon 194.1331 205, 893
Kuwait Airways Corporation v. Iraqi Airways Company and theRepublic of Iraq 1103.340, 116.5341 166, 167-8, 637-8,652, 667
La Bretagne [82.590] 811, 840
Lac Lanoux Arbitration (Francelspain) [24.101] 98, 761,773, 920
Lafontant v. Aristide [103.581] 657
LaGrand Case (Germany v. United States) (Request for the Indication ofProvisional Measures) [ 118.371 126, 689, 702, 714, 716, 733, 839,
844,972,988,989,995,996
Laguna del Desierto (ArgentinalChile) Case [113.11 96,418,451, 841,
842,951-2
Laker Airways v. Sabena 614
Lam Mow v. Nagle [4.295] 587
Lamy Case 719
Land, Island and Maritime Frontier Dispute: see El SalvadorlHonduras(Land, Island and Maritime Frontier Dispute)xlvi

TABLE O F C A SE S

Landano v. United States [ I16.5341 648
Lansman (Jlarkins) et al. v. Finland (Communication No. 67111995)[115.300] 275
Largueche v. Tancredi Fenu (Case No. 9321) [101.377] 683
Larsen v. Hawaiian Kingdom [ I19.5661 954, 970, 976
LCB v. UK 332
Leasing West GmbH v. Algeria (Case No. 3 Ob 38/86) [ I16.5261 665-6
Legality of Interrogation Methods Case 151
Legality of the Threat or Use of Nuclear Weapons, Request for an
Advisory Opinion by the United Nations General Assembly[110.163] 47, 70, 93, 98, 103, 109-10, 190,265, 295, 708, 761, 811,
920,967,971,972,983, 1001, 1003, 1031-2, 1065-7, 1195
Legality of the Use by a State of Nuclear Weapons in Armed Conflict(Request by the World Health Organization for an Advisory
Opinion) [110.1] 1003, 1193, 1195, 1196
Legality of the Use of Force (Yugoslavia v. Belgium) 988, 1047
Legality of the Use of Force (Yugoslavia v. USA) 822
Lehigh Valley Railroad Company v. State of Russia [4.58] 407
LETCO (Liberian Eastern Timber Corporation) v. Liberia [89.313]
945
Letelier v. Republic of Chile [88.747 (note)] 624, 663
Letelier and Moffitt Case [88.727] 924
Letelier and Others v. Republic of Chile and Linea Aerea Nacional-Chile[63.378] 648, 667
Re von Lewinski (called von Manstein) [16.509] 236
Libman v. The Queen [84.672] 581
Libra Bank Limited v. Banco Nacional de Costa Rica [72.119] 661
Libya v. Rossbeton SRL (Case No 2502) [87.63] 665
LibyaIChad, Territorial Dispute [loo.I ] 98, 115, 417,418, 431, 432,437,
447,449,839,841,873,915,973
LibyaIMalta, Continental Shelf Case [81.238, 81.7261 70, 90, 101, 520,
523,524,527,532- 3,536,540
LibyaIMalta, Continental Shelf Case (Application by Italy for Permission
to Intervene) [70.527] 968, 975, 991, 992
Libyan American Oil Company (LIAMCO) v. Libya [62.140] 644, 717,
742-3,751
Libyan Arab Foreign Investment Company (LAF1CO)lRepublic of
Burundi (Dispute concerning the Libyan Arab-Burundi Holding
Company) [96.279] 710
Lichtensztejn Case 299

TABLE O F CASES

xlvii

Lighthouses Arbitration between France and Greece 16.6591 907
Lighthouses Arbitration between France and Greece, Claims No. 19 and
21 (Part) 123.3521 700
Lighthouses Arbitration between France and Greece, Claim No. 27
123.2991 745
Ligue Internationale Contre le Racisme et 1'Antisemitisme 157
Linder and Others v. Portocarrero and Others 199.541 146, 147, 170
Lithgow Case 175.4381 739, 840, 841
Litster v. Forth Dry Dock Engineering 143
Littlejohn, L., and Company Inc. v. United States [3.483] 145
Littrell v. United States (No. 2) [100.438] 137, 166, 637
Helen Liu v. Republic of China [101.519] 624
Loayza Tamayo v. Peru, 1116.3381 362, 715
Lockerbie Case (Questions of Interpretation and Application of the 1971
Montreal Convention arising from the Aerial Incident at
Lockerbie) (Libyan Arab Jamahiriya v. United Kingdom) (Request
for the Indication of Provisional Measures) 194.4781 126, 580, 610,
833,968,987,988, 1119, 1148, 1149-50
Lockerbie Case (Questions of Interpretation and Application of the 1971
Montreal Convention arising from the Aerial Incident at
Lockerbie) (Libyan Arab Jamarihiya v. United Kingdom)(Preliminary Objections) [ 117.11 984
Loizidou v. Turkey (Merits) [108.443] 213, 333, 697
Loizidou v. Turkey (Preliminary Objections) [103.621] 213, 323-4, 328,
371,705,829,841,843,844
Lonrho Exports Limited v. Export Credits Guarantee Department
1108.5961 136, 137, 723
Lord Advocate's Reference No. 1 of 2000 [122.619] 132, 135
Tlze Lotus Case (FranceITurkey) [4.5 et al.] 45, 73, 74,77, 80-1, 85, 104,
190,548,577,580,581-2,589-90
Louisiana v. Mississippi 420
Lovelace v. Canada (No. R612411977) [68.17] 275, 298
Lubicon Lake Band Case 196.6671 272,276
Lutcher SA Celulose e Papel Candoi v. Inter-American Development
Bank 142.1381 1212
Luther v. Sagor 11.471 394-6
M v. Egypt 1116.6561 648
M v. Federal Department of Justice and Police (Switzerland) [75.107]883

xlviii

TABLE OF CASES

Mabo and Another v. State of Queensland and Another (No.1)[112.412] 151, 278
McCann v. UK 331,332
McGimpsey and McGimpsey v. Ireland, An Taoiseach and Other
Members of the Government of Ireland and the Attorney-General[87.334] 154
McKeel v. Islamic Republic of Iran [81.543] 670
Maclaine Watson and Company Limited v. Department of Trade andIndustry; JH Rayner (Mincing Lane) Limited v. Department ofTrade and Industry and Others, and Related Appeals [80.47] 134,
642
Maclaine Watson and Company Limited v. Department of Trade andIndustry ( J H Rayner (Mincing Lane) Limited v. Department ofTrade and Industry) [81.670] 137, 140, 1190
Maclaine Watson and Company Limited v. International Tin Council(JH Rayner (Mincing Lane) Limited v. Department of Trade andIndustry) [81.670] 137, 140, 1190, 1203
Maclaine Watson and Company Limited v. International Tin Council(No 1) [77.41, 80.1911 164, 165, 624
MacLeod v. United States 145
McMullen v. Immigration and Naturalization Service [79.602] 610
Maharanee of Baroda v. Wildenstein 578
Mahuika et al. v. New Zealand 272
Malachtou v. Armefti and Armefti [88.199] 154
Malek v. Iran 727
Malone v. Metropolitan Police Commissioner (No. 2) [74.304] 140
Mamatkulov and Abdurasulovic v. Turkey 326,331
Manauta v. Embassy of the Russian Federation [113.429] 630
Mangrui v. Air France 473
Mannington Mills Inc. v. Congoleum Corporation [66.487] 613
Re Marcinkus, de Strobe1 and Mennini (Case No. 3932) [Italy] [87.48]
219
Marckx Case [58.561] 323, 329, 844
Re Marcos Human Rights Litigation [103.521, 104.1 191 144
The Maret [12.29] 405
Mareva Compania Naviera v. International Bulkcarriers 661-2
Marine Steel Limited v. Government of the Marshall Islands [64.539,
64.5621 152
Martini Case (Italy v. Venezuela) [5.153] 716
Massey Case [4.250] 702

TABLE O F CASES

xlix

Matthews v. United Kingdom (Application No. 24833194) (Merits)
1123.11 201, 1204
Mauritian Women Case 299
Mavrommatis Palestine Concessions (Greece v. Great Britain)(Jurisdiction) 12.27 et al.] 232, 722-3, 844, 905, 916, 919, 969, 971
The Mayagna (Sumo) Awas Tingni Community v. Nicaragua 279,697
Meaning of the Word 'Laws' in Article 30 of the American Convention
on Human Rights (Advisory Opinion OC-6/86) [79.325] 840
Mellacher Case 740
Mellenger and Another v. New Brunswick Development Corporation
152.3221 654
Mendaro v. World Bank [99.92] 1207, 1212
Merge Claim [22.443] 727
Metalclad Corporation v. United Mexican States [119.615, 119.6451 703,
742, 746,945
Mexico (Republic of) v. Hoffman [12.143] 173, 627
Midland Bank Plc and Another v. Laker Airways Limited and Others[118.540] 615
Miha v. Equatorial Guinea 254
Mills v. United States 1120.6121 660
Mininni v. Bari Institute of the International Centre for Advanced
Mediterranean Agronomic Studies [78.112, 87.281 1208
Minister for Arts Heritage and Environment (Australia) and Others v.
Peko-Wallsend Limited and Others [90.32] 166
Minister for Foreign Affairs (Australia) and Trade and Others v. Magnoand Another [101.202] 154,672
Minister for Immigration and Ethnic Affairs (Australia) v. Teoh[104.460] 152-3
Ministry of Defence (Iran) v. Gould, Inc. and Others 196.11 406
Minority Schools in Albania Case (Series A/B, No. 64) [8.386] 268
Minors Opposa v. Secretary of the Department of the Environment andNatural Resources 759
Minquiers and Ecrehos Case (Francelunited Kingdom) 120.941 413,
427,428,432,434,435,973
Missouri v. Holland, United States Game Warden [1.4] 146, 198
Mobutu and Republic of Zaire v. Societe Logrine [113.481] 657
Moffit Case 15.199, 5.4711 924
Monetary Gold Case (Preliminary Objection) [21.399] 969,973,974,
976
Mortensen v. Peters 131

1

TABLE O F CASES

Mosse Claim [20.217] 703
Mosul Case (Interpretation of the Treaty of Lausanne, Article 3,
paragraph 2 (Series B, No. 12)) [3.105 et al.] 179
Mox Case 555,954
Muhonen v. Finland (Communication No. 8911981) [94.388] 255
Mukuro v. European Bank for Reconstruction and Development 1208
Murray v. Schooner Charming Betsy 149
Naim Molvan v. Attorney-General for Palestine [13.51] 547
Namibia (Legal Consequences for States of the Continued Presence ofSouth Africa in, etc.) [49.2] 90, 201, 204, 222, 228, 244, 258, 390,
392,401,415,417,705,811,841,853,962,964, 1001, 1004, 1102,
1194, 1196
Namibia (Minister of Defence) v. Mwandinghi 191.3411 907
Nanni and Others v. Pace and the Sovereign Order of Malta [8.2] 218
National American Corporation v. Federal Republic of Nigeria and theCentral Bank of Nigeria 163.63, 63.1371 643
National City Bank of New York v. Republic of China et al. 122.210 et al.]628
National Iranian Oil Company Revenues from Oil Sales Case 165.2151
665
National Oil Corporation v. Libyan Sun Oil Company 194.2091 404
National Petrochemical Company of Iran v. The M/T Stolt Sheaf
187.5831 406
National Smokeless Fuels Ltd v. IRC 140
Nationality of Claims (Administrative Decision No. V) 12.185, 2.1911
723
Nationality Decrees in Tunis and Morocco Case (Series B, No. 4) [2.349]
254,575,585,725,908
Naturalization Provisions of the Political Constitution of Costa Rica
(Advisory Opinion OC-4/84), Proposed Amendments [79.282]
269,725
Naulilaa Case (Portugal v. Germany) 14.274 et al.] 708, 1023
The Navemar (Compaiiia Espaiiola de Navegacion SA v. The Navemar
et al.) [9.176] 173, 626
Neer Case [3.213] 698, 734-5
Neger v. Hesse 152.3291 654
Neumeister Case (Merits) [41.3161 719

TABLE O F CASESli

New England Merchants National Bank and Others v. Iran Power
Generation and Transmission Company and Others [63.408,
63.4971 661
New Jersey v. Delaware [7.128] 451
New Zealand Air Line Pilots' Association Inc. v. Attorney-General(New Zealand) [120.551] 465
Ng v. Canada (Communication No. 46911991) [98.479] 299
Nicaragua v. Honduras (Border and Transborder Armed Actions(Nicaragua v. Honduras)) [84.218] 98, 100, 935, 969,971, 977-8,
984
Nicaragua v. United States (Military and Paramilitary Activities in andagainst Nicaragua) [76.1] 73-4, 82, 83,Y1, 108, 110, 111, 115, 116,
473,508,544,700- 1,704) 709,811, 851, 917,929, 968, 970, 974,
975,976,977,980-9, 1022, 1026-7, 1029-31, 1036, 1039, 1043,
1047, 1066, 1071, 1073
Nicaragua v. United States (Military and Paramilitary Activities in andagainst Nicaragua) (Jurisdiction and Admissibility) [76.104] 986,
991, 1000
Re Nicolo and Another [93.286] 157
Re Nielsen v. Denmark (No 343157) [28.210] 255
Re Nielsen (Government of Denmark v. Nielsen) [74.458] 610
Nissan v. Attorney-General (England) [44.359] 163
Nixon v. United States [42.145] 170
NNB and Other Members of the Crew of MS Saudi Independence andInternational Transport Workers' Federation v. Ocean Trade
Company, Saudi Europe Line Limited and Saudi International
Shipping (Greece) Limited [87.96] 494
Nold (J), Kohlen- und Baustoffgrosshandlung v. Commission of theEuropean Communities (Case 4/73) [55.459] 143, 344
Non-resident Petitioner v. Central Bank of Nigeria 633
Nordstern Allgemeine Versicherungs Aktiengesellschaft v. Vereinigte
Stinnes Rheinreedereien [74.2] 156
Norris Case [89.243] 329
North American Dredging Company of Texas Case [3.4 et al.] 731
North Atlantic Fisheries Case 190, 461,499
North Sea Continental Shelf Cases (Federal Republic of Germany/
Denmark; Federal Republic of GermanyINetherlands) [41.29] 2,
72, 73, 75, 79-82, 83, 85, 90, 98, 100, 112, 115, 118, 179,440,493,
523-4,528,530) 536,538,571,773,835,920,921,973
North-Eastern Boundary Arbitration (Canadatunited States) 957

lii

TABLE O F CASESNorthern Cameroons Case (Preliminary Objections) (Cameroon v.
United Kingdom) [35.353] 967, 971, 972,984
Re Norway's Application (Nos. 1 and 2) [84.730] 577
Norwegian Embassy v. Quattri (Decision No. 1277111991) [ 114.5251 647
Norwegian Loans Case [24.782] 845, 980, 981
Norwegian Shipowners' Claims 742, 744, 745, 955
Nottebohm Case (Liechtenstein v. Guatemala) (Preliminary Objection)[20.567] 956, 978, 982
Nottebohm Case (Liechtenstein v. Guatemala) (Second Phase) [22.349]
79, 104, 125,195,233,582,585- 6,725- 6,908
Nova ScotialNewfoundland Case (First Phase) 115, 812
Nuclear Tests Case (Australia v. France) (Interim Measures) [57.360] 988
Nuclear Tests Cases (Judgments) [57.398, 57.6051 98, 115, 720, 811, 813,
969,971,984,987,991- 2,996,999
Nulyarimma and Others v. Thompson; Buzzacott v. Minister for theEnvironment and Others [120.353] 152

Re 0 Laighleis (Lawless) [24.420] 154
O'Connell Machinery Company v. MV Americana and Italia Di
Navigazione, SpA [81.539] 661
Oder Commission Case (Territorial Jurisdiction of the International
Commission of the River Oder) [5.83 et al.] 760-1, 792, 841
Oil Platforms (Counterclaims) Case 990
Oil Platforms (Preliminary Objections) Case 814
Ope1 Austria GmbH v. Council of the European Union (Case T-115194)[113.295] 98
Open Door and Dublin Well Woman v. Ireland 255
Oppenheimer v. Cattermole (Inspector of Taxes); Nothman v. Cooper(Inspector of Taxes) [72.446] 128, 167
OR, MM and MS v. Argentina 305
Orinoco Steamship Company Case 956
Ottoman Public Debt Arbitration [3.42 et al.] 901, 902
Re Ownership and Jurisdiction Over Offshore Mineral Rights of British
Columbia [43.93] 151
Re P (No. 2) [114.485] 653,686
Palmagero Gold Fields 716
Pan American Union v. American Security and Trust Company [18.441]
1215
Pan American World Airways Inc. v. Aetna Casualty and Surety Co. 385

TABLE OF CASES

liii

Pan American World Airways Inc. et al. v. R et al. [90.213] 465
Panama v. Citizens and Southern International Bank and Others [86.10]
407
Panama v. Republic National Bank of New York and Others 186.11 407
Panama-Costa Rica Boundary Case 957
Panevezys-Saldutiskis Railway Case (Estonia v. Lithuania) 19.3081 232,
722,730
Papamichalopoulos v. Greece 742
The Paquete Habana 73,79, 105, 143
Paraguay v. United States (Case Concerning the Vienna Convention on
Consular Relations (Request for Provisional Measures)) [118.1 ]150
In re Paris Air Crash of March 2, 1974 471
Parking Privileges for Diplomats Case [70.396] 155
The Parlement Belge 136,625
Parot v. Spain 306
Pauling et al, v. McElroy et al. 126.11 143
Pauwels Case 7 19
Pellat Case [5.145 et al.] 200, 702
Pelletier v. UNESCO [38.379] 957
Perez et al. v. The Bahamas 163.350, 63.6011 644, 667
Persinger v. Islamic Republic of Iran (No. 2) 190.5861 675
Peter Pazmany University Case (Czechoslovakia v. Hungary), Appeal
from a Judgment of the Hungaro-Czechoslovak Mixed Arbitral
Tribunal 17.4901 245, 891, 893
Phelps Dodge Corporation v. Iran 746
The Philippine Admiral (Owners) v. Wallem Shipping (Hong IZong)
Limited and Another 164.901 629
Philippine Embassy Bank Account Case [65.146] 664
The Philippines v. Marcos and Others (No. 1) [81.581] 656, 657
Piandiong et al. v. The Philippines 298
Pickstone v. Freemans 143
Re Pikelny, Estate of [22.97, 22.1021 389
Pine Valley v. Ireland 329
Pinson, Georges, Case [4.9 et al.] 125
Re Piperno 610
Re Piracy Jure Gentium [7.213] 133,594
Ex parte Pirbhai (Secretary of State for Foreign and Commonwealth
Affairs, ex parte Kamrudin Pirbhai, Chimanbhai Shivabhai Aminand Vrajlal Jamnadas Vasant) [107.461] 164, 168

liv

TABLE OF CASESThe Pisaro 173
Pitcairn and Associated Islands (Governor of) v. Sutton [104.508] 152
Planmount Limited v. Republic of Zaire [64.268] 630, 633, 641
Polish Nationals in Danzig Case [6.47 et al.] 125
Polites v. Commonwealth of Australia and Another; Kandiliotes v.
Commonwealth and Another [12.208] 152, 153
Re Poncet [15.346] 1190
Poropat v. Bosnia 354
Porter v. Freudenberg 138
The Porto Alexandre [ 1.1461 626, 629
Portugal v. Goncalves [82.115] 683
Post Office v. Estuary Radio Limited [43.114] 140, 172
Exparte Postlethwaite 141
Potter v. BHP Co. Ltd 152
Princess Zizianoff v. Kahn and Bigelow [4.384] 690
Princz v. Federal Republic of Germany [103.594] 119,638
The Prins Frederik 625
Propend Finance Pty Limited and Others v. Sing and Others [111.611]
653,686
Public Prosecutor (Netherlands) v. JBC [94.339] 685
Public Prosecutor (Netherlands) v. JO [74.130] 156
Public Prosecutor (Sweden) v. Antoni [32.140] 588
Qatar v. Bahrain (Maritime Delimitation and Territorial Questions)[102.1] 413,419,433,496,498, 503, 506, 519, 525, 527, 537, 539,
842,846,952,968,969,975,986
Quintanilla Case [3.224] 735

R, Chief Metropolitan Magistrate, ex parte Home Secretary 610
R v. Anderson 494
R v. Berry 580
R v. Bow Street Magistrates, ex parte Mackerson 606
R v. Bow Street Metropolitan Stipendiary Magistrate, exparte Pinochet
Ugarte (No. 1) [119.50] 134-5, 166
R v. Bow Street Metropolitan Stipendiary Magistrate, exparte Pinochet
Ugarte (No. 3) [119.135] 117, 135, 303, 580, 597, 599, 622, 623,
640,657,658
R v. Brown 140
R v. Burgess, exparte Henry [8.54] 199

TABLE OF CASESIV

R v. Chief Immigration Officer, Heathrow Airport, ex parte Salamat Bibi
[61.267] 140
R v. Farnquist [94.238] 493
R v. Governor of Pentonville Prison, exparte Teja [52.368]684, 685
R v. HM Treasury and the Bank of England, exparte Centro-Com 139,
141
R v. Home Secretary, ex parte Anderson 140
R v. Home Secretary, ex parte Bagga [88.404] 685
R v. Home Secretary, exparte Bhajan Singh [61.260] 140
R v. Home Secretary, ex parte Fernandes 140
R v. Home Secretary, ex parte Launder [ 114.4021 140
R v. Home Secretary, ex parte Phansopkar [61.3901 140
R v. Home Secretary, ex parte Wynne 140
R v. Horseferry Road Magistrates' Court, exparte Bennett [95.380] 606
R v. Kelly [77.284] 588
R v. Lambeth Justices, exparte Yusufu [88.323] 685
R v. Latif 606
R v. Lyons 166
R v. Mullen 606
R v. Officer Commanding Depot Battalion RASC Colchester, exparte
Elliott 606
R v. Plymouth Justices and Another, exparte Driver [77.351] 606
R v. Republic of Iraq [116.664] 648
R v. Secretary of State for Foreign and Commonwealth Affairs, exparteRees-Mogg [98.166] 136
R v. Secretary of State for Foreign and Commonwealth Affairs, exparteSamuel 674
R v. Secretary of State for Foreign and Commonwealth Affairs, exparte
Trawnik 173
R v. Secretary of State for the Home Department, exparte Thakrar[59.450] 133, 737
R v. Secretary of State for Transport, ex parte Factortame Limited(No.2) (Case C 213189) [93.642, 93.6651 162
R v. Secretary of State for Transport, exparte Factortame Limited(No.3) (Case C 221189) [93.642, 93.7311 162
R v. West Yorkshire Coroner, exparte Smith [78.550] 579
R (A1 Fawwaz) v. Governor of Brixton Prison 141
R (on the Application of Alconbury Ltd) v. Secretary of State for theEnvironment, Transport and the Regions 142

lvi

TABLE O F CASES

R on the Application of Channel Tunnel Group Limited and FranceManch SA v. Secretary of State for the Environment, Transport andthe Regions [119.398] 138
R (Suresh and Manickavasagam) v. Secretary of State for the Home
Department [123.593] 168
Racke (A) GmbH and Company v. Hauptzollamt Mainz (Case
C-162196) [117.399] 857
Radwan v. Radwan 155-5791670
Rahimtoola v. Nizam of Hyderabad [24.175] 629
Railway Traffic between Lithuania and Poland (Series AIB, No 42)[6.403] 920
Rainbow Warrior (New ZealandIFrance) [82.499] 695, 711-12, 714,
716-17,852,853
Rainbow Warrior (New ZealandlFrance) (UN Secretary-General's
Ruling) [74.241] 695, 701, 718-19
Rajan v. Minister of Immigration (New Zealand) [117.641] 152
Ramirez v. Weinberger 623
Ramos and Others v. United States [116.634] 648
Rankin v. Islamic Republic of Iran (Case No. 10913) [82.204] 707, 737
Rann of Kutch (Indo-Pakistan Western Boundary) Case (India1
Pakistan) [50.2] 100,413,435,447, 956, 958
Rantzen v. Mirror Group Newspapers 140
Re-Introduction of the Death Penalty in the Peruvian Constitution Case
234
Reading and Bates Corporation and Reading and Bates Exploration
Company v. National Iranian Oil Company [63.305] 661
The Red Crusader 135.4851 571,924,925
Reel v. Holder and Another [74.105] 211,401
Rees v. Secretary of State for the Home Department 590
Reference by the Governor in Council Concerning Certain Questions
relating to the Secession of Quebec [115.536] 151, 229-30,231,
273,444
Reference re Powers to Levy Rates on Foreign Legations and HighCommissioners' Residences 151, 152
Reference re the Seabed and Subsoil of the Continental Shelf Offshore
Newfoundland [86.593] 151
Reid v. Republic of Nauru [101.193] 635
Renchard et al. v. Humphreys & Harding Inc. et al. [63.21, 63.331 680

TABLE O F CASES

lvii

Reparation for Injuries Suffered in the Service of the United Nations[16.318] 46, 79, 90, 104, 241,242, 245, 723, 843, 1004, 1188, 1192,
1195, 1199, 1200
Republic of Italy v. Hambros Bank Limited and Gregory (Custodian of
Enemy Property) [17.1] 138
Republic of Somalia v. Woodhouse Drake and Carey (Suisse) SA andOthers [94.608] 173,403
Request for an Examination of the Situation in Accordance with
Paragraph 63 of the Court's Judgment of 20 December 1974 in the
Nuclear Tests (New Zealand v. France) Case (Order) [106.1] 115,
543,759,761,763,776,797,966,982,998- 9
Reservations to the Genocide Convention Case [18.364] 79, 104,264-5,
825,886, 1001
Respublica v. De Longchamps 143
Revere Copper and Brass Inc. and Overseas Private Investment
Corporation [56.258] 742
Rich et al. v. Naviera Vacuba SA et al. [32.127] 628
Richtersveld Community Case 278
Right of Passage over Indian Territory Case (Portugal v. India) (Merits)[31.231 82, 87,429,460, 980
Right of Passage over Indian Territory Case (Portugal v. India)(Preliminary Objections) [24.840] 96, 842, 919, 980
Right to Information on Consular Assistance Case 361
Rio Tinto Zinc Corporation and Others v. Westinghouse Electric
Corporation [73.296] 613
Ritts v. American Overseas Airlines 469
RL v. Canada (Communication No. 35811989) [96.706] 272
RMD v. Switzerland 201
Robert E. Brown Case [2.66] 255, 907
Roberts Case [3.227] 734, 735
Robinson v. Secretary-General of the UN [19.494] 260
Robinson Case 299
Rocha et al. v. United States [32.112] 592
Rodriguez-Fernandez v. Wilkinson [87.446] 144, 146
Rothmans International France SA and Philip Morris France SA;
Arizona Tobacco Products and Philip Morris France SA [93.308]
157
Russian Indemnity Case 716
Rustomjee v. R 136
Rutaganda Case 264

lviiiTABLE O F CASES

Rutili v. Minister of the Interior of the French Republic (Case 36/75)[62.390] 143, 344
S v. India [82.13] 684
S & S Machinery Company v. Masinexport-import and Romanian Bank
for Foreign Trade [72.183] 661
Sabah Shipyard v. Pakistan 660
Saghi v. Iran (Case No. 298) [84.609] 727
M/V Saiga (No. 2) (Saint Vincent and the Grenadines v. Guinea)(Admissibility and Merits) [120.143] 127, 520, 552, 713, 715, 729,
733,1010
St Pierre and Miquelon (Delimitation of Maritime Areas between
Canada and the French Republic (St Pierre and Miquelon))[95.645] 533-4, 538
Saipan, People of, ex re1 Guerrero v. US Department of the Interior[61.113] 149
Salem Case (United States and Egypt) [6.188] 255, 727
Salimoff and Company v. Standard Oil Company of New York; The
Same v. Vacuum Oil Company [7.22] 405
Salomon v. Commissioners of Customs and Excise [41.1] 140
Saluka Investments v. Czech Republic 954
Salvador Commercial Company Case 702
Sambaggio Case 706
Sanchez-Espinoza and Others v. Reagan and Others [80.586] 608
Sandline International 1nc.IPapua New Guinea Arbitration (InterimAward) [117.552] 135, 703
Sankoh, In the Matter of [119.385] 168
Santa Elena v. Costa Rica 742, 743
Sapphire International Petroleums Limited v. National Iranian Oil
Company [35.136] 745
Sara et al. v. Finland (Communication No. 43111990) [114.331] 255
Saudi Arabia (Government of) v. Ahmed [104.629] 646
Saudi Arabia and Others v. Nelson [100.544] 632, 633, 644, 645
Scarfo v. Sovereign Order of Malta [24.1] 218
Schavernoch v. Foreign Claims Commission [90.220] 727
Schmidt v. Polish People's Republic 643
Re Schmidt [111.548] 606
The Schooner Exchange v. McFaddon 495,579,622
Schreck Case 957
Schroeder v. Bissell 144, 145

TABLE OF CASESThe Scotia Case 79, 105
S.D. Myers Inc. v. Canada (Partial Award) [121.72] 47, 715, 740~ e t e r b e ~ o v354
itSecretary of State for Foreign and Commonwealth Relations v. Tomlin
674
Security Pacific National Bank v. Iran 661
Sedco Inc. v. National Iranian Oil Company and the Islamic Republic of
Iran (Case No. 129) [84.483] 750
Sei Fujii v. California 148
Sellers v. Maritime Safety Inspector (New Zealand) [120.585] 548
Selmouni v. France 303
Semco Salvage v. Lancer Navigation 142
Sengupta v. Republic of India [64.352] 638,646-7,686
Serbian Loans Case (Payment of Various Serbian Loans Issued in
France) [5.466] 2, 96, 126-7, 710
Shanghai Power Co. v. United States 741
Shaw v. Shaw [78.483] 685
Shearson Lehman Brothers Inc. and Another v. Maclaine Watson andCompany Limited and Another and International Tin Council(Intervener) (No. 2) [77.107] 680, 1212
Shimoda Case [32.626] 1066
Short v. Islamic Republic of Iran (Case No. 11135) [82.148] 706
Shufeldt Claim (USA v. Guatemala) [5.179] 740
Siderman de Blake and Others v. Republic of Argentina and Others[103.454] 117, 146, 608, 624, 660
Sidhu v. British Airways 141, 471
Sierra Leone Telecommunications Company Limited v. Barclays Bankplc [114.466] 137, 173,403
Simsek v. Macphee 153
Sinclair v. HM Advocate 606
Skeen v. Federative Republic of Brazil [ 121.4811 682
Skiriotes v. Florida [10.258] 588
Smith v. Libya [113.534] 609,661
Societe Internationale pour Participations Industrielles et Commerciales
SA v. Rogers, Attorney-General et al. [26.123] 613
Soering v. United Kingdom [98.270] 323, 331-2, 844
Sokoloff v. National City Bank of New York [2.44] 405
Sola Tiles Inc. v. Iran (Case No. 317) [83.460] 726, 745

1~

TABLE OF CASES

Solange I (Internationale Handelsgesellschaft mbH v. Einfuhr- undVorratsstelle fiir Getreide und Futtermittel (Solange I) (Case 11/70)(Case No. 2 BvL 52/71)) [93.362] 728
Solorzano v. Venezuela (Communication No. 15611983) [94.400] 255
Somchai Liangsiriprasert v. United States (Government of) [84.55,
85.1091 581
Some Powers of the Inter-American Commission on Human Rights 357
South-West Africa Cases (Second Phase) (1966) [37.243] 94, 95, 100-1,
226,260,266,268,813,969,984, 1214
Southern Bluefin Tuna Cases (Australia v. Japan; New Zealand v. Japan)(Request for Provisional Measures) [ 117.1481 1010
Sovereignty over Certain Frontier Land, Case concerning (Belgium/
Netherlands) [27.62] 426
Spanish Zone of Morocco Claims, General Decisions (Principles of State
Responsibility) [2.157] 106, 696-7, 706, 716
Sporrong and Lijnnroth Case (Merits) [68.86] 739, 742
SPUC v. Grogan 344
Standard Chartered Bank v. International Tin Council and Others [77.8]
1203
Standards for Reformulated and Conventional Gasoline Case 941
Starrett Housing Corporation, Starrett Systems Inc. and Starrett
Housing International Inc. v. Iran, Bank Omran, Bank Mellat andBank Markazi (Case No. 24) [85.349] 97, 741
State (Ceara) v. D'Archer de Montgascon [6.162] 654
State (Ceara) v. Dorr [4.39] 654
State (South Africa) v. Ebrahim [95.417]606
Stauder v. City of Ulm 344
Steiner and Gross v. Polish State [4.291 et al.] 233
Strassheim v. Dailey 580
Suarez-Rosero v. Ecuador [118.56] 715, 716
Sullivan v. State of SHo Paulo [lo.1781 654
Sunday Times Case (Merits) [58.491] 330, 331, 361, 702
Exparte Susannah Scott 606
Swedish Engine Drivers' Union Case [58.19] 322
Swiss-Israel Trade Bank v. Government of Salta and Banco Provincial de
Salta [55.411] 654

T v. Belgium [115.442] 167

TABLE O F CASES

lxi

Taba Award (Arbitral Award in the Dispute Concerning Certain
Boundary Pillars between the Arab Republic of Egypt and the Stateof Israel) [80.224, 80.6911 437, 841, 958
Tabag v. Minister for Immigration and Ethnic Affairs (Australia) 154
Tabatabai Case [80.388] 686
Tabion v. Mufti [107.452] 683
Tacna-Arica Arbitration (ChileIPeru) [3.357] 853, 920
TadiC (Case IT-94-1 -AR72) (Jurisdiction) (Appeals Chamber) [105.419,
105.4531 239,967,978, 1058, 1069, 1073, 1123, 1149, 1197
TadiC (Case IT-94- 1 -T) (Judgment) (Trial Chamber 11) [ 112.11 704-5
Tag v. Rogers 144
A/S Tallinna Laevauhisus and Others v. Estonian State Steamship Lineand Another [13.12] 866
Tanli Case 330, 332
Tavignano Case 924
Tel-Oren v. Libyan Arab Republic [77.192] 146, 607-8, 667
Temeltasch v. Switzerland [88.619] 822
Temple of Preah Vihear Case (Cambodia v. Thailand) (Merits) [33.48]
96,417,437,439- 40,447,716,841,845,847- 8,963
Teoh (Minister for Immigration and Ethnic Affairs (Australia) v. Teoh)[104.460] 138
Texaco Overseas Petroleum Company (TOPCO) and California Asiatic
Oil Companyv. Libya [53.389] 99,243, 717, 739, 744, 813
Texas v. White 405
Texas Trading and Milling Corporation v. Federal Republic of Nigeria
and Central Bank of Nigeria, Consolidated Appeal [63.552] 645
Thai-Europe Tapioca Service Limited v. Government of Pakistan,
Ministry of Food and Agriculture, Directorate of Agricultural
Supplies (Imports and Shipping Wing) (The Harmattan) [64.81]
133,629-30
In re Thenault 587
767 Third Avenue Associates and Another v. Permanent Mission of the
Republic of Zaire to the United Nations [99.194] 670, 671
Thirty Hogsheads of Sugar, Bentzon v. Boyle 105
Thompson v. St Vincent and the Grenadines 299
Thorpe v. Commonwealth of Australia (No. 3) [118.3531 169
Tiger Case 924
Timberlane Lumber Company et al, v. Bank of America, NY and SA
et al. [66.270] 613, 614
Tinoco Arbitration (Great BritainICosta Rica) [2.34 et al.] 369, 378

lxii

TABLE O F CASES

Toonen v. Australia (Communication No. 48811992) [112.328] 201
Torres Ramirez v. Uruguay 255
Touvier Case [100.337] 596
Tradex Hellas SA v. Albania 949
Trail Smelter Arbitration (USAICanada) [9.315] 761, 763, 765, 766, 956,
957
Trans World Airlines, Inc. v. Franklin Mint Corporation and Others;
Franklin Mint Corporation and Others v. Trans World Airlines,
Inc. [101.587] 470, 855
Transamerican Steamship Corporation v. Somali Democratic Republicand Somali Shipping Agency [86.55, 86.681 644, 645
Transportes Aereos de Angola v. Ronair Inc. and Another [94.202] 404,
406
Trawnik v. Gordon Lennox 627
Trawnik v. Minister of Defence 140
Treatment in Hungary of US Aircraft Case 974
Re Treaty on the Basis of Relations between the Federal Republic of
Germany and the German Democratic Republic, 1972 [78.149]
386,869
Re Treaty on European Union, 1992 (Maastricht I) (Decision No. 92-308
DC) [93.337] 157
Trendtex Trading Corporation v. Central Bank of Nigeria [64.111] 130,630,633,649-50
Triquet v. Bath 129, 131
Tubantia Case 924
Tunis and Morocco Nationality Decrees (Series B, No. 4) [2.349] 194
TunisiaILibya Continental Shelf Case (Application by Malta for
Permission to Intervene) [62.608] 991, 992
TunisiaILibya Continental Shelf Case (Application for Revision andInterpretation of the Judgment of 24 February 1982 in the Case
Concerning the Continental Shelf (TunisiaILibya)) [81.4191 964,
974,997,998
TunisiaILibya Continental Shelf Case (Merits) [67.4] 100, 101, 116,499,
500,520,524,529- 30,532,536,540,973,982,983,985
Tyrer Case [58.339] 201, 323, 844
Underhill v. Hernandez 169
Unification Treaty Constitutionality Case (Merits) (Cases 1 BvR 1170,
1174, 1175190) [94.42] 155
Union Bridge Company Case [2.170] 703

TABLE O F CASES

lxiii

United Euram Company v. Union of Soviet Socialist Republics et al.
[63.228] 643
United Nations Administrative Tribunal, Effect of Awards ofCompensation [21.3101 95-6, 1196
United Nations Administrative Tribunal, Review of Judgment No. 158(Fasla) [54.381] 1004
United Nations Administrative Tribunal, Review of Judgment No. 273(Mortished) [69.330] 1003
United States v. Aluminum Co. of America 612
United States v. Belmont [8.34] 144
United States v. Benitez 591
United States v. California (1965) [42.86] 500
United States v. Claus [13.181] 144
United States v. Cortes 547
United States v. Curtiss-Wright Export Corporation et al. [8.48]
146, 197
United States v. Dominguez 547
United States v. Dulles 723
United States v. First National City Bank et al. [38.112] 613
United States v. Friedland; Friedland v. United States and Others[120.417] 660
United States v. General Electric Co. 612
United States v. Kessler 505
United States v. ICostadinov 199.1031 670
United States v. Layton [94.83] 592
United States v. Lira 605
United States v. Louisiana et al. (Louisiana Boundary Case) (1969)[53.206] 500
United States v. Louisiana and Others (Alabama and Mississippi
Boundary Case) [91.41 11 411
United States v. McCaffery 610
United States v. Mackin [79.459] 610
United States v. Marino-Garcia 547
United States v. Matta-Ballesteros [107.429] 117
United States v. Melekh et al. [32.308] 143
United States v. Monroy 547
United States v. Noriega [99.143, 121.5911 171, 233, 612, 656, 681
United States v. Palestine Liberation Organization and Others [82.282]
150
United States v. Percheman 147,905

lxiv

TABLE O F CASES

United States v. Perez-Herrera 580
United States v. Pink, Superintendent of Insurance of the State of New
York et al. [10.48] 147, 387
United States v. Pizzarusso 592
United States v. Postal 147
United States v. Public Service Alliance of Canada and Others(Re Canada Labour Code) [94.264] 634-5,637,647
United States v. Ray [51.225] 179
United States v. Rodriguez 592
United States and Others v. Ruiz de Guzman and Company (Case No.
L-35645) [102.122] 631
United States v. Sissoko [121.599] 691
United States v. Smith 145
United States v. State of Maine and Others [91.427] 500
United States v. Timken Roller Bearing Co. 612
United States v. Toscanino [61.190] 605
United States v. Watchmakers of Switzerland Information Center, Inc.
et al. [22.168] 612
United States v. Wong Kim Ark 586
United States v. Yunis (No. 2) [82.343] 591, 602, 605
United States v. Yunis (No. 3) [88.176] 144, 605
United States Diplomatic and Consular Staff in Tehran Case (USA v.
Iran) [61.502] 7, 669, 670, 672-3, 682, 688, 707, 715, 967, 968, 977,
985,988,995,997, 1000
United States ex re1 Lujan v. Gengler [61.206] 605
United States Nationals in Morocco, Case concerning (USA v. France)[19.255] 79, 195, 840
United States and Republic of France v. Dollfus Mieg et Cie SA, andBank of England [16.103, 16.128, 19.1631 627
Upright v. Mercury Business Machines Company [32.65] 405-6
In re Uranium Antitrust Litigation 613
ReUrios [1.107] 591
Vafadar [82.97] 685
Vagrancy Cases (De Wilde, Ooms and Versyp) (Merits) [56.351] 330
Valdez v. Oklahoma 145
Valsabbia v. Commission 344
Van Duyn v. Home Office (Case 41/74) [60.247] 737

TABLE OF CASES

1XV

Van Gend en Loos (Algemene Transport en Expeditie Onderneming van
Gend en Loos NV v. Nederlandse Administratie der Belastingen(Case 26/62)) [93.1] 217, 1178
Velasquez Rodriguez Case [95.232] 362, 704, 718
Verlinden BV v. Central Bank of Nigeria [63.7, 63.390,63.548, 63.5731
667
Vermont v. New Hampshire [7.127, 7.1351 105
Vgt Verein gegen Tierfabriken Case 330
Victory Transport Incorporated v. Comisaria General de
Abastecimientos y Transportes [35.110] 628, 631-2, 655
Vietnam (Republic of) v. Pfizer Inc. and Others [94.199] 404
Vijayanathan and Pusparajah v. France 329
Vitkovice Horni v. Korner 666
Vuolanne Case 299
Waddington v. Miah [57.175] 140
Wahda Bank v. Arab Bank plc 141
Waite and Kennedy v. Germany (Application No. 26083194) [118.121]
1208
Waksman Case 299
Walker v. Baird 138
Ware v. Hylton 146
Weinberger Case 255
Weinberger, Secretary of Defense (United States) and Others v. Rossi
and Others [101.562] 149
Wellington District Legal Services Committee v. Tangiora [115.655] 152
Wemhoff Case [41.281] 844
West Rand Gold Mining Co. v. R 131, 904,906
Western Sahara Case (Advisory Opinion) [59.30] 178, 180, 227-8,231,
413,415,424- 5,429,437,445,446,964, 1002
Exparte Westfallen 606-7
In re Westinghouse Electric Corporation 613
Westland Helicopters Limited v. Arab Organization for Industrialization[108.564] 166, 1198
Westland Helicopters Limited and Arab Organization for
Industrialization, United Arab Emirates, Kingdom of Saudi Arabia,
State of Qatar, Arab Republic of Egypt and Arab British Helicopter
Company (Interim Award, 1984) [80.600] 126,946, 1203
Westminster City Council v. Government of Iran [108.557] 666, 675
Whitney v. Robertson 144, 150

lxvi

TABLE O F CASES

WHO Regional Office Case (Interpretation of the Agreement of 25
March 1951 between the WHO and Egypt) [62.450] 1004, 1200
Williams & Humbert Limited v. W & H Trade Marks (Jersey) Limited;
Rumasa SA and Others v. Multinvest (UK) and Others [75.268]577
Williams and Humbert Limited v. W & H Trade Marks (Jersey) Limited[78.676] 171
SS Wimbledon [2.99 et al.] 190, 461, 836, 991
Woodpulp Cases (Ahlstrom Osakeyhtio and Others v. Commission(In re Wood Pulp Cartel) (Joined Cases 89185, 104185, 114185,
116-17185 and 125-9185)) [96.148] 619-20
Re Woods [53.552] 154
Wright v. Cantrell [12.133] 152
Wulfsohn v. Russian Socialist Federated Soviet Republic [2.39 et al.] 369,
404

X v. Austria 329
X v. Commission 344
X v. FRG 329
X v. UK 329
Xuncax and Others v. Gramajo; Ortiz v. Gramajo [104.165] 146
Y v. Belgium 329
Yeager v. Islamic Republic of Iran (Case No. 10199) [82.178] 705, 706
Yessenin-Volpin v. Novosti Press Agency, Tass et al. [63.127] 644, 653
Youmans Case [3.223] 703, 705
Young, James and Webster Case (Closed Shop Case) (Merits) [62.359]
331,702
Young Loan Arbitration (Kingdom of Belgium, the French Republic,
Swiss Confederation, United Kingdom and United StateslFederal
Republic of Germany) [59.494] 841, 844
Yugoslavia Peace Conference, Arbitration Commission, Interlocutory
Decision (Opinion Nos. 8 , 9 and 10) [92.194] 956
Yugoslavia Peace Conference, Arbitration Commission, Opinions, 1(Succession to SFRY) [92.162] 188
Yugoslavia Peace Conference, Arbitration Commission, Opinions, 2(Right to self- determination of Serbs in Croatia andBosnia-Herzegovina) [92.167] 271,448-9, 909
Yugoslavia Peace Conference, Arbitration Commission, Opinions, 3(Internal boundaries) [92.170] 449, 872

TABLE O F CASES

lxvii

Yugoslavia Peace Conference, Arbitration Commission, Opinions, 5(Recognition of Croatia) [92.178] 383-4
Yugoslavia Peace Conference, Arbitration Commission, Opinions, 8(Dissolution of SFRY) [92.199] 186, 188, 372
Yugoslavia Peace Conference, Arbitration Commission, Opinions, 9(Succession to SFRY) [92.203] 188, 891
Yugoslavia Peace Conference, Arbitration Commission, Opinions, 10(Recognition of FRY) [92.206] 188, 373
Yugoslavia Peace Conference, Arbitration Commission, Opinions, 11(Succession to SFRY: date) [96.718] 892
Yugoslavia Peace Conference, Arbitration Commission, Opinions, 14(Succession to SFRY: assets and liabilities) [96.729] 891, 892, 893
Z v. Geneva Supervisory Authority for the Enforcement of Debts andBankruptcy [102.205] 664
Z v. UK 330
Zachevning v. Miller 194
The Zafiro [3.221] 704
Zambian Embassy v. Sendanayake (Decision No 594 111992) [ 114.5321
648
Zedan v. Kingdom of Saudi Arabia [92.462] 645
ZM v. Permanent Delegation of the League of Arab States to the United
Nations [ I 16.6431 1208

TABLE O F TREATIES A N D SELECTED O T H E R
INTERNATIONAL I N S T R U M E N T S

1794
Great Britain-USA, Jay Treaty. ..... 733, 952
1814
Great Britain-USA, Treaty of Ghent ......952
1815
Final Act of the Congress of Vienna ......27-8
1842
China-Great Britain, Treaty of Nanking ceding the Island of Hong
Kong ...... 912
1860
China-Great Britain, Convention of Peking leasing the New
Territories ...... 912
1864
Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick of Armed Forces in the Field ...... 28, 1054
1868
St Petersburg Declaration Renouncing the Use in Time of War of
Explosive Projectiles under 400 Grammes Weight ...... 1054, 1068
1869
El Salvador-Honduras, Delimitation Agreement (unratified)......451
1878
Treaty of Berlin
art. 6 ...... 388
art. 27...... 388
art. 35 ...... 388
art. 43 ...... 388
1884
International Convention for the Protection of Submarine Telegraphic
Cables...... 234
lxviiiTABLE OF TREATIES A N D AGREEMENTS

1885
General Act of the Congress of Berlin
art. 35...... 442
1888
Convention Respecting the Free Navigation of the Suez Canal(Constantinople)...... 461
1890
Germany-Great Britain, Treaty Delimiting Respective Spheres ofInfluence in Africa...... 418
1895
China-Japan, Treaty of Shimonoseki (Cession of Taiwan)...... 211
1898
Spain-USA, Treaty of Paris...... 421,433
1899
Hague Convention I for the Pacific Settlement of International
Disputesart. 2...... 923
art. 3...... 922
art. 9...... 923
art. 15...... 952
art. 18...... 953
art. 44...... 953
art. 48...... 953
art. 81...... 956
art. 84...... 956
Hague Convention IV concerning the Laws and Customs of War on
Land...... 1054-5
Declaration No 2 Concerning Asphyxiating Gases...... 1067, 1068
1903
France-Great Britain, Agreement for the Settlement by Arbitration of
Certain Classes of Questions which may arise between the two
Governments...... 953
Panama-USA, Convention for the Construction of the Isthmian Ship
Canal...... 584
1904
France-Siam, Convention modifying the Treaty of 3 October
1893 regarding Territorial Boundaries and Other Arrangements......
439

1XX

TABLE OF TREATIES A N D AGREEMENTS

1906

Convention for the Prohibition of the Use of White Phosphorus in the
Manufacture of Matches (Berne)...... 252
Convention respecting the Prohibition of Night Work for Women inIndustrial Employment (Berne)...... 252
1907

Convention for the Establishment of a Central American Court ofJustice...... 233
Hague Convention No I for the Pacific Settlement of International
Disputesart. 2 ...... 923
art. 3 ...... 922
art. 37 ...... 952
art. 73 ...... 955
Hague Convention No I1 respecting the Limitation on the Employment
of Force for the Recovery of Contract Debts ...... 1016
Hague Convention No IV on the Laws and Customs of Warfare on
Land ...... 1054-5
preamble (Martens Clause) ......1055
Regulations
Section I, Chapter I1...... 1058
Section I1
art. 22 ......1065
art. 23(a)......1065
art. 23(e)...... 1065
Section I11......1061
art. 42 ......1062
art. 43 ......1062
1910

Agreement for the Suppression of the Circulation of Obscene
Publications ...... 234
1912

France.Morocco. Treaty of Fez for the Establishment of a New Regime(Protectorate Treaty) ...... 194-5
1914

France.UK.

Protocol respecting the New Hebrides ...... 206

TABLE O F TREATIES A N D A GR EEM EN T S

lxxi

1919
Constitution of the International Labour Organization (Part XI11 of theTreaty of Versailles)...... 253
art. 26 ...... 925
art. 37 ...... 925
Covenant of the League of Nations ......848. 1016-17. 1166
arts. 10-16 ......1017
art. 12...... 1099
art. 15 ......1099
art. 16 ...... 1100
art. 22 ...... 252
art. 23 ...... 252-3
art. 228 ......594
Paris Convention for the Regulation of Aerial Navigationart. 1...... 464. 467
arts. 5-10 ...... 464
Treaty of St Germain (Treaty of Peace between the Allied and AssociatedPowers and Austria) ......863. 900
art. 203 ......903
Treaty of Versailles (Treaty of Peace between the Allied and AssociatedPowers and Germany)art. 227 ......234. 656
art. 228 ......234
art. 304(b)...... 233
art. 380 ......461
1920
Treaty of Trianon (Treaty of Peace between the Allied and AssociatedPowers and Hungary)art. 186 ...... 903
1921
Great Britain.Ireland. Articles of Agreement concerning Irish Free State
Treaty...... 902-3
1922
Germany.Poland. Geneva Convention concerning Upper Silesia ...... 233
Saudi Arabia-Kuwait-administered Neutral Zone. Treaty
establishing ...... 207

lxxiiTABLE O F TREATIES A N D A GR EEM EN T S

1923
Mexico.USA. General Claims Convention
art. V...... 731
1924
International Convention for the Suppression of the Circulation of andTraffic in Obscene Publications ...... 234
1925
Geneva Protocol for the Prohibition of the Use in War of Asphyxiating.
Poisonous or Other Gases. and of Bacteriological Methods of
Warfare ......1067
1926
Brussels Convention on the Immunity of State-owned Ships ......628
International Convention for the Abolition of Slavery and the Slave
Trade ...... 282
art. 3 ...... 310. 371
Protocol (1953)...... 282
1928
American Convention on Commercial Arbitration ......464
General Act for the Settlement of Disputes (revised 1949) ...... 919. 954
art. 15(1)...... 926
art. 28 ...... 955. 956
General Treaty for the Renunciation of War (Kellogg-Briand Pact) ......
390-1.422.427.430. 848
art. I ......1017
1929
General Treaty of Inter-American Arbitration ......954
Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field ...... 1055
Geneva Convention on the Treatment of Prisoners of War...... 1055
International Convention for the Suppression of Counterfeiting
Currency...... 235
Italy-Holy See. Lateran Treaty...... 219
Warsaw Convention for the Unification of Certain Rules Relating toInternational Carriage by Air ......469-73
art. 20 ...... 469
art. 22 ...... 469-70
art. 25 ...... 470
Amendment (Hague) (1955)...... 469

TABLE O F TREATIES A N D AGREEMENTS

lxxiiiAmendment (Montreal) (1966)...... 469. 472
Additional Protocols (Montreal) (1975)...... 470
Protocol (Guatemala) (1971)...... 470
1930
France. Germany. Italy. Japan. Switzerland. International Convention
Respecting the Bank for International Settlements ......223-4
Hague Convention concerning Certain Questions relating to theConflict of Nationality Laws
art. 1 ...... 585. 724-5. 908
art. 3 ...... 727
art. 12 ......587
1933
Montevideo Convention on the Rights and Duties of Statesart. 1 ...... 178
art. 7 ...... 385
art. 11 ...... 391
USSR-USA. Exchange of Notes following Recognition (Litvinov
Assignment) ...... 147. 387
1936
Convention for the Suppression of the Illicit Traffic in Dangerous
Drugs ...... 235
International Convention Regarding the Regime of the Straits between
the Mediterranean and the Black Sea (Montreux) ......515
1944
Agreement on Control Machinery in Germany (as amended) ......868
Chicago Convention on International Civil Aviation ......474
art. 1 ...... 465
art. 2 ...... 465
art. 3 ...... 465. 475
art. 3(a) bis...... 475. 477. 478
art. 5 ...... 465
art. 6 ...... 465
art. 9 ...... 465
art. 17 ...... 466. 589
art. 19 ...... 466. 589
art. 43 ...... 467
art. 44 ...... 467. 476
art. 82 ...... 476

lxxiv

TABLE O F TREATIES A N D AGREEMENTS

art. 425 ...... 476
Annex I1......475
Declaration of Philadelphia (ILO)...... 312-13
1945
Articles of Agreement of the International Bank for Reconstruction andDevelopment
art. VI(5)...... 1213
art. VII ...... 1189. 1206. 1212
Articles of Agreement of the International Monetary Fundart. IX ...... 1189. 1206
Charter of the International Military Tribunal of the Far East (Tokyo
Charter)art. 5 ...... 235
Charter of the United Nations ......148-9. 167-8. 205
Chapter I
art. 1 ...... 257. 1082. 1101
art. l(1)...... 1148. 1151
art. l(2)...... 226
art. 2 ...... 835. 1083-4. 1088
art. 2(2)...... 97
art. 2(3)...... 568. 917
art. 2(4)...... 391.410.422-3.443. 848. 1017-24. 1036-9. 1040.
1045-6art. 2(6)...... 92. 835. 1018
art. 2(7)...... 191. 254. 258-9. 410.427. 443. 575-6. 604. 1083. 1120.
1147
Chapter I1
art. 4 ...... 181. 387. 1086. 1087-8
art. 5 ...... 1086. 1088
art. 6 ...... 1086. 1088
Chapter IV
art. 9 ...... 1089
art. 10 ......1105. 1108. 1214
arts. 10-14 ...... 1151
art. 11 ......1104. 1105. 1108. 1152
art. l l ( 2 )......1153
art. 12 ......1105
art. 13 ......282
art. 13(1)...... 257

TABLE OF TREATIES A N D AGREEMENTS

art. 14 ......1105. 1108
art. 17 ......108. 1090
art. 17(1)......3
art. 18 ......817. 1089. 1214
art. 20 ......1090. 1152
art. 22 ......1108
Chapter V
art. 23 ......1084
art.24 ......928.1084.1102.1119. 1152
art. 24(2)......1148
art. 25 ......1084-5. 1086. 1102. 1119. 1136. 1139. 1150
art. 27 ......1120
art. 28 ......1084. 1155
art. 29 ......1107
Chapter VI ...... 1102
art. 33 ......858. 921. 1100. 1103
art. 33(1)......917. 918
art. 34 ......934. 1102. 1107
art. 35 ......934
art. 35(1)......1103
art. 35(2)......1103
art. 36 ......929. 1086. 1103
art. 36(1)......1103
art. 37 ......929. 1107
art. 37(1)...... 918
art. 37(2)......929. 1103
art. 38 ......1107
Chapter VII ...... 4. 208-11. 238. 239. 1018. 1101. 1118. 1119-51. 1157.
1159
art. 39 ......1107. 1120. 1123-4. 1149
art. 40 ......1124-5
art. 41 ......1086. 1125. 1133. 1154
art. 42 ......1086. 1108. 1125. 1133. 1135
art. 43 ......1107. 1133. 1147. 1198
art. 44 ......1086
art. 46 ......1133
art. 47 ......1133
art. 50 ......1126
art. 51 ......91. 92. 423. 708. 1019. 1025-36. 1044-5. 1149. 1154

lmi

TABLE O F TREATIES A N D A GR EEM EN T S

Chapter VIII ...... 1154-60
art. 51 ......1154
art. 52 ......423. 1036. 1038. 1154
art. 52(1)......928
art. 52(2)......929. 1155
art. 52(3)......929. 1155
art. 52(4)......928. 1155
art. 53 ......1154
art. 53(1)......928
art. 54 ......1154
Chapter IX
art. 55 ......226. 257. 258. 266
art. 56 ...... 258. 266. 1095
art. 57 ...... 257
Chapter X
art. 61 ...... 1092
art. 62 ...... 282. 1092
art. 63 ......312. 1095
art. 69 ......1092
Chapter XI ...... 226
Chapter XI1...... 202. 226
art. 73 ...... 257
art. 75 ......1198
art. 76 ...... 257
art. 77 ......1093. 1198
art. 79 ......1106. 1198
art. 82 ......1086
art. 83 ......1086. 1092. 1198
art. 85 ......1092. 1198
Chapter XI11...... 202
Chapter XIV
art. 92 ......960. 967. 1149
art. 93 ......67. 972
art. 94 ......996
art. 96 ......860. 1000. 1197
art. 96(2)......1003. 1197
Chapter XVart. 97 ......1093
art. 98 ......1094. 1106. 1108
art. 99 ......1094. 1104. 1106

TABLE O F TREATI ES A N D A G R E E M E N T S

art. 100 ...... 1093
art. 101 ...... 1093
Chapter XVI
art. 102 ...... 813. 832
art. 103 ...... 119. 929. 1150. 1154
art. 104 ...... 1188. 1189
art. 105 ...... 1188. 1206
Chapter XVIII
art. 108 ...... 837. 1085. 1086
art. 109 ...... 1085. 1086
Constitution of UNESCO ...... 938
art. 12 ......1189
art. 14(2)...... 938
Nuremberg Charter ...... 235
art. 6 ...... 235. 594. 1078
art. 7 ...... 656
Pact of the League of Arab States ......935
Statute of the International Court of Justiceart. 2 ...... 961
art. 3 ...... 962
art. 4 ...... 961. 1086
art. 5 ...... 961
art. 9 ...... 961
art. 10 ...... 962
art. 13 ...... 962
art. 16 ...... 962
art. 17 ...... 962
art. 18 ...... 962
art. 19 ...... 962
art. 21 ...... 962
art. 22 ...... 962
art. 26 ...... 964
art. 29 ...... 964
art. 31 ...... 964
art. 34 ...... 972
art. 35(2)...... 973
art. 36 ...... 3. 985
art. 36(1)...... 973. 974
art. 36(2)...... 813. 936. 969. 977-82
art. 36(5)...... 980-1

lxxviilxxviii

TABLE O F TREATIES A N D AGR EEM EN T S

art. 36(6)...... 981
art. 37 ...... 977. 978art. 38(1)...... 66-7. 88. 93. 103. 105. 107. 115. 536. 955. 983-4
art. 40 ...... 976
art. 41 ...... 987-90
art. 43(5)...... 985
art. 44(2)...... 985
art. 48 ...... 985
art. 49 ...... 985
art. 50 ...... 985
art. 53 ...... 1000
art. 59 ...... 103
art. 60 ...... 997. 999
art. 61 ...... 997-8. 999
art. 62 ...... 991
art. 63 ...... 991
art. 65 ...... 1000
1946
Constitution of the World Health Organization (as amended 1960. 1975.
1977. 1984. 1994)
art. 2 ...... 1003. 1196
art. 75 ...... 938
Convention on the Privileges and Immunities of the United Nations('The General Convention') ......1114. 1206
art. 11. section 2...... 1212
art. IV......692
section 11 ......1208
section 14 ......1208
art. VIII ...... 1003
ILO Constitution ...... 312-15
art. 19 ...... 313. 313
art. 23(2)...... 313
art. 24 ...... 314
art. 25 ...... 314
arts. 26-9 ...... 314
arts. 31-3 ...... 314
Paris Agreement on Reparations. the Establishment of an Inter-Allied
Reparation Agency and Tripartite Commission for Restitution of
Monetary Gold
Part I11...... 976

TABLE O F TREATIES A N D AGREEMENTS

lxxix

UK-USA Air Services Agreement (Bermuda Agreement) ...... 466.46 79.
Annex ...... 467-8
UN.ILO. Agreement establishing ILO as Specialised Agency (UNGA
resolution 50 (I))...... 312
UN.UNESC0. Agreement establishing UNESCO as Specialised Agency(UNGA resolution 50 (I))...... 312
UNESCO Constitution
art. 1 ...... 316
art. 4(1)...... 316
Protocol (1962)...... 316
1947
Burma-UIC. Recognition of Burmese Independence and Related
Matters ...... 415. 863
Convention on the Privileges and Immunities of the Specialized
Agencies...... 1206
art. IV......1212
art. V...... 692
General Agreement on Tariffs and Trade (GATT)...... 40. 92.212.
1167-8art. IV(3)......1167
art. IV(4)......1167
art. XXII ......939
art. XXIII ...... 939
Inter-American Treaty of Reciprocal Assistance (Rio) modified by the1975 Protocol of San Jose...... 1182
Peace Treaties ...... 1067
Switzerland-UN. Headquarters Agreement ......1206
Treaty of Peace with Hungary...... 716
Treaty of Peace with Italy......716. 899
Annex IV...... 274
Annex XIV...... 274
Treaty of Peace with Romania ......716
USA-UN. Headquarters Agreement ......1206
art. V. section 15 ...... 1210
art. VII. section 21 ...... 1207
1948
American Declaration of the Rights and Duties of Man ......355. 361
American Treaty of Pacific Settlement (Pact of Bogota) ...... 927. 934-5
art. 31 ...... 977-8
art. 32 ...... 978

lXXX

TABLE OF TREATIES A N D AGREEMENTS

Charter of the Organization of American States (Bogota Charter) (asamended by Protocols of Buenos Aires (1967). Cartagena de Indias(1985). Washington (1992) and Managua (1993))...... 1182
art. 9 ...... 371. 918
art. 17 ...... 391
art. 18 ...... 1155
art. 20 ...... 934. 1155
art. 22 ...... 1155
art. 23 ...... 934
arts. 82-90 ...... 935
China-UK. Joint Declaration on the Question of Hong Kong ......459
Convention for the Establishment of the Intergovernmental Maritime[Consultative] Organization ...... 919.
9 3 8Convention on the International Recognition of Rights in Aircraft ......
467
Genocide Convention ...... 90.235. 251. 261. 262-6. 825-6. 888-9. 977
art. 9 ...... 264. 265. 977
Treaty of Economic. Social and Cultural Collaboration and Collective
Self-Defence (Western European Union) (Treaty of Brussels) ......
1170-1
Universal Declaration of Human Rights ...... 45. 247. 259-61. 584
art. 2 ...... 266. 268
art. 3 ...... 259
art. 5 ...... 259. 303
art. 7 ...... 259. 266
art. 8 ...... 259
art. 9 ...... 259
art. 10 ...... 259. 487
art. 12 ...... 259
art. 13 ...... 259
art. 14 ...... 259
art. 18 ...... 259
art. 19 ...... 259
art. 20 ...... 259
art. 23 ...... 260
art. 26 ...... 260
1949
Agreement on the Privileges and Immunities of the Organization ofAmerican States ......1206

TABLE O F TREATIES A N D A GR EEM EN T S

lxxxi

General Agreement on the Privileges and Immunities of the Council ofEurope ...... 1206
Geneva Conventions (including common articles) ......235.7. 303. 594.
599. 1055-62
art. 1 ...... 1076
art. 2 ...... 1056. 1058. 1061
art. 3 ...... 1061. 1072-6
Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field (Geneva
Convention I)
art. 7 ...... 1057
art. 8 ...... 1077
art. 12 ......1057
art. 13 ...... 1057
art. 14 ......1057
art. 15 ......1057
art. 16 ......1057
art. 19 ......1057
art. 22 ......1057
art. 49 ...... 236. 595
art. 50 ...... 236. 1077
art. 52...... 1077
Geneva Convention for the Amelioration of the Condition of the
Wounded. Sick and Shipwrecked Members of the Armed Forces at
Sea (Geneva Convention 11)...... 1057-8
art. 7 ...... 1057
art. 8 ...... 1077
art. 12 ......1058
art. 13 ......1058
art. 50 ...... 236. 595
art. 51 ...... 236. 1077
art. 53 ......1077
Geneva Convention Relative to the Treatment of Prisoners of War(Geneva Convention 111)......1058-61
art. 4 ...... 1058. 1061. 1071
art. 5 ...... 1059
art. 7 ...... 1057
art. 8 ...... 1077
art. 13 ......1060
art. 14 ......1060

lxxxii

TABLE O F TREATIES A N D AGREEMENTS

art. 17 ...... 1060
art. 19 ...... 1060
art. 23 ...... 1060
art. 82 ...... 1060
art. 85 ...... 1060
art. 118 ...... 1060
art. 122 ...... 1057
art. 126 ...... 1078
art. 127 ...... 1076
art. 129 ...... 236, 595
art. 130 ...... 236. 1077
art. 132 ...... 1077
Geneva Convention Relative to the Protection of Civilian Persons inTime of War (Geneva Convention IV) ......1061-2
art. 4 ...... 1061
art. 8 ...... 1057
art. 9 ...... 1077
art. 16 ...... 1061
arts. 27-34 ...... 1061
arts. 35-46 ...... 1061
art. 44 ...... 1062
art. 47 ...... 1062
art. 51 ...... 1062
art. 53 ...... 1062
art. 54 ...... 1062
art. 55 ...... 1062
art. 70 ...... 1062
arts. 71-6 ...... 1061
art. 142 ...... 1078
art. 144 ...... 1076
art. 146 ...... 236, 595
art. 147 ...... 236, 1077
art. 149 ...... 1077
North Atlantic Treaty......1168-70
art. 4 ...... 1169
art. 5 ...... 1169
art. 9 ...... 1169
Revised General Act: see 1929 General Act for the Settlement of Disputes(revised 1949)

TABLE O F TREATIES A N D AGREEMENTS

lxxxiii

Statute of the Council of Europe ...... 1171-2
art. 1 ...... 319
art. 3 ...... 319
art. 8 ...... 1171
art. 13 ...... 332
art. 14 ...... 332
art. 15 ...... 332. 1171
art. 16 ...... 332. 1171
art. 21 ...... 1171
art. 23 ...... 1171
1950
Egypt-World Health Organization (WHO). Agreement and Exchange ofNotes on Status of WHO in Egypt...... 1207
195011998
European Convention on Human Rights...... 45. 142. 233. 255. 319.
321-34.344-6.843-4. 1171-2
art. 1 ...... 310. 323. 736
art. 2 ...... 256. 331. 332
art. 3 ...... 256. 303. 322. 326. 331. 332
art. 4 ...... 322
art. 4(1) ...... 256
art. 5 ...... 322
art. 6 ...... 322. 639. 829
art. 6(1) ...... 331. 824. 1208
art. 7 ...... 256. 322
art. 8 ...... 256. 322
arts. 8-1 1 ...... 256
art. 10 ...... 256. 322. 487
art. 11 ...... 256. 322
art. 12 ...... 256. 322
art. 13 ...... 256. 322
art. 14 ...... 256. 268. 322. 340
art. 15 ...... 256. 330. 331. 1074
art. 19 ...... 324
art. 20 ...... 324
art. 22 ...... 324
art. 23 ...... 324
art. 25 (former)......327. 328. 829
art. 26 ...... 255. 325

lxxxiv

TABLE O F TREATIES A N D AGREEMENTS

art. 27 ...... 325
art. 27(2)...... 963
art. 28 ...... 325
art. 30 ...... 326. 327-8
art. 33 ...... 328
art. 34 ...... 327. 328. 356
art. 35 ...... 329. 330. 730
art. 35(2)(b)......353
art. 36 ...... 326
art. 38 ...... 326
art. 39 ...... 327
art. 41 ...... 327. 333
art. 43 ...... 328
art. 44 ...... 327
art. 46 (former) ......328. 829
art. 46(1) (former) ......327
art. 46(2) (former) ......327
art. 47 ...... 326
art. 63 ...... 833
art. 64 ...... 831
Protocol I ......322. 739
Protocol IV...... 322. 737
Protocol VI...... 322
Protocol VII ...... 322. 737
Protocol XI ......324. 328. 333. 356. 364
Protocol XI1......321
Protocol XI11...... 321
1951
Convention on the Status of Refugees and Protocol (1967)...... 282. 737
art. 35 ...... 310
art. 36 ...... 310
Protocol (1967) ...... 737
NATO Status of Forces Agreement ...... 584. 692
Treaty Establishing the European Coal and Steel Community...... 1173
art. 6 ...... 217. 1188
1952
Convention on Damage Caused by Foreign Aircraft to Third Parties on
the Surface (Rome)...... 473
art. 37 ...... 831
Protocol (Montreal) (1978)...... 473

TABLE OF TREATIES A N D AGREEMENTS~XXXV

Convention on Relations between the Three Powers (France. UK andUSA) and the FRG (as amended by Schedule I to the Protocol on
the Termination of the Occupation Regime in the FRG. signed at
Paris on 23 October 1954) ......868
art. 2 ...... 869
1954
Convention for the Prevention of Pollution of the Seas by Oil ...... 554.
806-7
Convention on the Status of Stateless Persons ...... 282
art. 33 ...... 310
Hague Convention for the Protection of Cultural Property in the Eventof Armed Conflictart. 4 ...... 1064
Protocol I (1954)......1064
Protocol I1 (1999)...... 1064
art. 3 ...... 1064
art. 6 ...... 1064
art. 7 ...... 1064
art. 22 ......1064
1955
Austrian State Treaty......274. 1067
Convention on the Establishment of 'Eurofima' (European Company for
the Financing of Railway Equipment) ...... 223
France-Libya. Treaty of Friendship and Neighbourly Relations ......437.
915
GDR-USSR. Treaty of Friendship ......869
Treaty of Friendship. Cooperation and Mutual Assistance (Warsaw
Pact) ...... 1185
1956
European Convention on Establishment
art. 3 ...... 737
Nicaragua-USA. Treaty of Friendship. Commerce and Navigationart. XXIV(2) ...... 977
Statute of the International Atomic Energy Agency as amended ......938
Supplementary Convention on the Abolition of Slavery. the Slave Tradeand Institutions and Practices Similar to Slavery...... 282
1957
Abolition of Forced Labour Convention (ILO Convention 105) ...... 314
Convention on the Nationality of Married Women ...... 587

lxxxvi

TABLE O F TREATIES A N D A GR EEM EN T S

Egypt.UN. Status of Forces Agreement ...... 1206
European Convention for the Peaceful Settlement of Disputes ......918.
927. 936

art. 26 ...... 956
art. 28 ...... 956
ILO Convention 107 (Indigenous and Tribal Populations) ...... 278
Treaty Establishing the European Economic Community (Rome)......
143.344. 655

art. 85 ...... 619
art. 173 ...... 619
art. 210 ...... 1188
art. 234 ...... 471
1958
Convention concerning Discrimination in respect of Employment andOccupation (ILO Convention 111) Special Protocol providing forConciliation and Good Offices Commission ...... 939
Geneva Convention on the Continental Shelf ......81-2.491-2. 522.
532-3. 831

art. 1 ...... 523-4
art. 2 ...... 525
art. 2(4)...... 525
art. 3 ...... 526
art. 4 ...... 526
art. 5 ...... 526
art. 6 ...... 528-30, 534-5. 538. 823
art. 12(1)...... 831
Geneva Convention on Fishing and Conservation of Living
Resources ...... 491-2
art. 1 ...... 553. 556
art. 6 ...... 556
Geneva Convention on the High Seas
preamble ...... 491-2. 544. 628. 798. 831. 832
art. 1.. .... 543
art. 2 ...... 543. 544. 556
art. 2(1)...... 541
art. 3 ...... 541
art. 4 ...... 541
art. 5 ...... 545-6. 589
art. 6 ...... 547

TABLE O F TREATIES A N D AGREEMENTS

lxxxvii

art. 8 ...... 548
art. 9 ...... 548
art. 11...... 552
art. l l ( 1 )...... 582
art. 13 ......550
art. 15 ......549. 593
art. 19 ......549. 593
art. 22 ......550
art. 23 ......551
art. 24 ......553
Geneva Convention on the Territorial Sea and Contiguous Zone ...... 104.
491-2. 628
art. 1 ...... 507
art. 2 ...... 507
art. 3 ...... 495
art. 4...... 497. 503
art. 5(1)...... 493
art. 5(2)...... 493
art. 7 ...... 499
art. lO(1)...... 501
art. lO(2)...... 501
art. 12 ...... 506. 527
art. 14 ......508
art. 14(1)...... 554
art. 14(3)...... 710
art. 14(4)...... 508
art. 15 ......527
art. 16(4)...... 512
art. 19(1)...... 511
art. 22 ......548
art. 24 ...... 516. 517
art. 26 ...... 821
art. 28 ...... 821
1959
Antarctic Treaty...... 90. 457. 755
Protocol on Environmental Protection (1991)......755. 776
art. 7 ...... 458-9
art. 8 ...... 774
Declaration on the Rights of the Child (UNGA resolution 1386
(XIV))...... 307

lxxxviii

TABLE O F TREATIES A N D AGREEMENTS

1960
Convention on the Organization for Economic Cooperation andDevelopment ......1172
Convention on Third Party Liability in the Field of Nuclear Energy (asamended by the Additional Protocol of 28 January 1964 and by theProtocol of 16 November 1982) (Paris Convention) ......802
art. 4 ...... 802
art. 7 ...... 803
art. 8 ...... 803
art. 10 ...... 803
art. 13 ...... 803
Declaration on the Granting of Independence to Colonial Countries andPeoples (UNGA resolution 1514(XV))...... 39.227. 229. 230. 231.
443. 1037
para. 4 ...... 1037
Statute of the Inter-American Commission on Human Rights (asamended by the Protocols of Cartagena de Indias (1985).
Washington (1992) and Managua (1993))......355
art. 19(c)...... 358
Treaties relating to the establishment of Cyprus ......891
UNESCO Convention against Discrimination in Education ......316
art. 7 ...... 316
Special Protocol providing for Conciliation and Good Offices
Commission (1962)...... 939
1961
Congo.UN. Status of Forces Agreement ......1206
Convention on the Reduction of Statelessness ...... 908
Convention Supplementary to the 1929 Warsaw Convention for theUnification of Certain Rules Relating to International Carriage by
Air Performed by a Person other than the Contracting Carrier(Guadalajara) ...... 469
European Social Charter ...... 321. 334-7. 1172
arts. 1-6 ......334
art. 7-8 ...... 334
arts. 9-10 ...... 334
arts. 11-14 ...... 334
art. 15 ...... 334
arts. 16-17 ...... 334
arts. 18-19 ...... 334

TABLE O F TREATIES A N D AGREEMENTS

lxxxixart. 20 ...... 334
art. 21 ...... 335
art. 22 ...... 335
art. 23 ...... 335
arts. 27-9...... 335
art. 28 ...... 336
Additional Protocol (1988)...... 334
Additional Protocol (1995)
art. 1 ...... 336
art. 2 ...... 336
art. 5 ...... 336
art. 8 ...... 336, 337
art. 9 ...... 336
art. 10 ......337
art. 14 ......336
Protocol (1991)
art. 1 ...... 335
art. 2 ...... 335
art. 4 ...... 335
art. 6 ...... 336
Harvard Draft Convention on the International Responsibility of States
for Injuries to Aliens
art. 10(3)...... 740
art. 10(7)...... 740
Vienna Convention on Diplomatic Relations ...... 90, 669-88
preamble ...... 670
art. l ( e )...... 681
art. 2 ...... 670
art. 3 ...... 670
art. 4 ...... 670
art. 9 ...... 670, 682
art. 13 ...... 670-1
art. 22 ...... 671-3,675, 679, 688
art. 24 ...... 680
art. 25 ...... 679
art. 26 ...... 681
art. 27 ...... 676, 678
art. 27(3)...... 676, 677
art. 27(4)...... 676
art. 29 ...... 681

XC

TABLE OF TREATIES A N D AGREEMENTS

arts. 29-36 ......684
art. 30(1)...... 679. 682
art. 30(2)...... 682
art. 31(1)...... 682. 683. 684
art. 31(2)...... 682
art. 3 l ( 3 )...... 682
art. 3 l ( 4 )...... 682
art. 32 ...... 687-8
art. 33 ...... 682
art. 34 ...... 682. 686
art. 35 ...... 682
art. 36(1)...... 684
art. 37 ...... 684
art. 39 ...... 684. 685
art. 39(2)...... 658. 685-6
art. 40 ...... 685
art. 41 (3)...... 672
art. 45 ...... 674
art. 45(a)...... 673
Optional Protocol Concerning Acquisition of Nationality
art. 2 ...... 587
Optional Protocol Concerning the Compulsory Settlement of
Disputes ......977
1962
Brussels Convention on the Liability of Operators of Nuclear Ships ......
802
art. I11...... 803
art. V...... 803
art. X ......803
Permanent Sovereignty over Natural Resources (UNGA resolution 1803
(XVII))...... 743. 744
1963
African and Malagasy States-EEC. Convention of Association (Yaounde
Convention I) ......1173
Charter of the Organization of African Unity......1183
art. III(3) ...... 230
art. XIX ...... 930
Protocol on the Commission of Mediation. Conciliation andArbitration (1964)...... 927. 930

TABLE O F TREATIES A N D AGREEMENTS

xci

Convention on Offences and Certain Other Acts Committed on Board
Aircraft (Tokyo Convention) ...... 592.601.1049
art. l(4)......602
art. 4......476
Declaration of Legal Principles Governing the Activities of States in the
Exploration and Use of Outer Space (UNGA resolution 1962
(XVII))...... 109.481
Nordic Mutual Emergency Assistance Agreement in Connection with
Radiation Accidents ......799
Treaty Banning Nuclear Weapons Tests in the Atmosphere. Outer Spaceand Under Water ...... 393.544.781.796-7.1067
Vienna Convention on Civil Liability for Nuclear Damage ......802-3
art. V......803
art. VI ......803
art. VII ...... 803
art. X......803
art. XI ......803
Protocol to Amend(1997)......802-3
Supplementary Convention(1997)...... 802-3
Vienna Convention on Consular Relations ...... 150.672.678.
688-90art. l(l)(k) ......680
art. 10......688
art. 11 ......688
art. 12......688
art. 31 ......688
art. 32......688
art. 33......688
art. 35(3)......678
art. 36......361-2
art. 36(1)......689
art. 36(l)(b) ......362.689
art. 40......690
art. 43......690
Optional Protocol Concerning the Compulsory Settlement of
Disputes ......977
1964
Cyprus.UN. Status of Forces Agreement ......1206
European Fisheries Convention ...... 517-18

xcii

TABLE O F TREATIES A N D AGREEMENTSOAU Cairo Declaration on Border Disputes among African States
Legitimising National Borders Inherited from Colonial Times ......
872-3
1965
Constitution of the Food and Agriculture Organization (as amended)
art. 16......938
art. 17...... 1189
Convention on the Elimination of All Forms of Racial
Discrimination ...... 199.251.261.266.268.385.887.977
Part I
art. l(4)...... 269
Part I1......289-92
art. 8...... 290
art. 9...... 290.291-2
art. 11 ......290
art. 1 l(3)......255
art. 12......290
art. 13......291
art. 14......291
art. 15......291
Part I11
art. 20......828
Convention on Settlement of Investment Disputes between States andNationals of Other States (ICSID)...... 233.977
art. 25...... 729
art. 25(1)......944
art. 25(2)...... 944-5
art. 25(4)...... 944
art. 53......945
art. 54......945
art. 55......945
Convention on Transit Trade of Land-Locked States ......541
Declaration on the Inadmissibility of Intervention in the Domestic
Affairs of States (UNGA resolution 2131 (XX))...... 1021.
1043
Protocol Concerning the Privileges and Immunities of the European
Communities...... 1206
Treaty establishing a Single Council and a Single Commission of theEuropean Communities (Merger Treaty) ......655.1174

TABLE OF TREATIES A N D AGREEMENTS

1966
Belgium.France. Agreement on the Siting of Nuclear Power
Installations ...... 775. 798
Helsinki Rules on the Uses of Waters of International Rivers......
792
International Convention for the Conservation of Atlantic Tuna ......
560
International Covenant on Civil and Political Rights ...... 45. 227-8. 230.
267.443.817. 852
art. 1 ...... 269. 271-2. 292. 584. 908
art. 2 ...... 248. 292. 310. 736
art. 2(1)...... 267-8
art. 4 ...... 256. 1074
art. 6 ...... 256. 292. 295. 299. 362
art. 6(5) ...... 296
art. 7 ...... 256. 292. 293. 303
art. 8 ...... 292
art. 8(1)...... 256
art. 8(2)...... 256
art. 9 ...... 292
art. 9(4) ...... 299
art. 11 ...... 256
art. 12 ...... 256
art. 13 ...... 736
art. 14 ...... 292
art. 15 ...... 256
art. 16 ...... 256
art. 18 ...... 256. 292
art. 19 ...... 256. 272. 487
art. 21 ...... 256. 272
art. 22 ...... 256. 272. 292
art. 24(3)...... 587
art. 25 ...... 272-3
art. 26 ...... 268
art. 27 ...... 269. 272-6.292. 296. 298-9
arts. 28-32...... 293
art. 40 ...... 293
art. 40(4)...... 294
art. 41(c)...... 255
art. 42 ...... 296

xciv

TABLE O F TREAT I ES A N D A GR EEM EN T S

Optional Protocol I ...... 233. 255. 272. 296-9. 852
art. 2 ...... 255
art. 5...... 297. 730
Optional Protocol I1...... 299
International Covenant on Economic and Social Rights ...... 45. 227-8.
230.267.286-9.443.817. 908

art. 1 ...... 269. 286
art. 2 ...... 248. 286
art. 2(2) ...... 268
art. 3 ...... 248
art. 6 ...... 286
art. 7 ...... 286
art. 9 ...... 286
art. 11 ...... 286
art. 13 ...... 286
art. 15 ...... 286
arts. 16-25 ...... 287
1967

ASEAN Declaration ......1185
Treaty on Principles Governing the Activities of States in the
Exploration and Use of Outer Space including the Moon and other
Celestial Bodies ...... 410. 481. 488. 790. 1067
art. 1 ...... 482. 790
art. 3 ...... 482. 483. 790
art. 4 ...... 482. 790
art. 6 ...... 482. 768. 1200
art. 7 ...... 483
art. 8 ...... 483
art. 9 ...... 790
art. 11 ...... 482. 483. 790
art. 13 ...... 1200
art. 14 ...... 768
art. 15 ...... 919
Treaty for the Prohibition of Nuclear Weapons in Latin America(Tlatelolco) ...... 544. 797. 1067
1968

Agreement on the Rescue of Astronauts. the Return of Astronauts andthe Return of Objects Launched into Outer Space ...... 484
Convention on the Non-Applicability of Statutory Limitations to War
Crimes and Crimes Against Humanity...... 235. 594

TABLE OF TREATIES A N D AGREEMENTS

XCV

Proclamation of Tehran (UN Conference on Human Rights) ......260
Treaty on the Non-Proliferation of Nuclear Weapons ...... 797. 1067
art. VI ...... 920-1
1969
African and Malagasy States-EEC. Convention of Association (Yaound6
Convention 11)...... 1173
Convention on Civil Liability for Oil Pollution Damage ......554
art. I1...... 808
art. I11...... 808
art. V...... 808
Protocol on Liability (1992) ...... 809
art. 2(3)...... 809
Convention for Cooperation in Dealing with Pollution of the North Sea
by Oil (Bonn)...... 808
Convention on Special Missions ...... 678. 690-1
art. 8 ...... 690
art. 17 ...... 690
art. 27 ...... 690
art. 31 ...... 690
Inter-American Convention on Human Rights ...... 233. 255. 354-63
art. 1 ...... 310
art. 2 ...... 310
art. 3 ...... 256
art. 4 ...... 256. 355. 362
art. 5 ...... 256. 303. 355
art. 6 ...... 256
art. 9 ...... 256
art. 12 ...... 256
arts. 12-14 ......256
art. 13 ...... 361
arts. 15-16 ......256
art. 17 ...... 256
art. 18 ...... 256. 355
art. 19 ...... 256. 355
art. 20 ...... 256
arts. 21-2 ...... 256
art. 23 ...... 256. 355
art. 26 ...... 355
art. 27 ...... 256. 274. 361. 1074
arts. 34-8 ...... 359

xcvi

TABLE O F TREATIES A N D AGREEMENTS

art. 44......355-6
art. 46......356.730
art. 46(l)(a) ...... 255
art. 47......356
art. 48......356
arts. 49-51 ......356
art. 50......359
art. 51 ......359
art. 52......422
arts. 52-4...... 359
art. 62......359
art. 63(2)......358.359-60
art. 64...... 256.274.361
art. 74......360
Additional Protocol on Economic. Social and Cultural Rights(1988)
art. 8(a)...... 357
art. 11 ......756
art. 13......357
art. 19...... 357
Protocol on the Abolition of the Death Penalty(1990) ......358
International Convention Relating to Intervention on the High Seas inCases of Oil Pollution Casualties ......553.712.807-8
Protocol Extending Convention to Substances other than Oil(1973) ......
808
Vienna Convention on the Law of Treaties ......142.811.927
art. 2......812.821
art. 2(l)(a) ......88
art. 2(l)(b) ......819
art. 3......812
art. 4 ......418
art. 5......814.843
art. 6 ...... 1197
art. 7......817.846.1194
art. 7(2)...... 125
art. 8......816
art. 9 ......817
art. 9(1)......817
art. 11 ......817.820
art. 13......818-19
art. 14......820

TABLE O F TREATIES A N D AGREEMENTS

art. 14(2)...... 820
art. 15 ...... 820-1
art. 19 ...... 826
art. 20(2)...... 826
art. 20(4)...... 827
art. 20(5)...... 831
art. 21 ...... 827
art. 21(3)...... 827
art. 22...... 847-8
art. 24 ...... 832
art. 26 ...... 812
art. 27 ......124, 847
art. 28 ...... 833
art. 29 ...... 833
art. 30 ...... 833, 838
art. 30(4)(b)...... 838
art.31 ...... 418.811. 839
art. 31(1)...... 839-40. 1194
art. 31(3)(b)...... 436. 1194
art. 31 (3)(c)...... 841
art. 31 (4)...... 844
art. 32 ...... 418. 839. 841
art. 33 ...... 844
art. 33(4)...... 989
art. 34 ...... 834. 1202
art. 35 ...... 835
art. 36 ...... 836
art. 38 ...... 835
art. 39 ...... 837
art. 40 ...... 837
art. 41 ...... 834. 838. 852
art. 42 ...... 845
art. 44 ...... 845
art. 45 ...... 845
art. 46 ...... 811
art. 46(1)...... 124. 846
art. 46(2)...... 124. 846
art. 47 ...... 846
art. 48 ...... 847
art. 49 ...... 848

xcvii

xcviii

TABLE O F TREATIES A N D AGREEMENTS

art. 50 ...... 848
art. 51 ...... 848
art. 52 ...... 391. 849. 850
art. 53 ...... 118. 721. 850. 851. 858
art. 54 ...... 851
art. 56 ...... 851
art. 57 ...... 851
art. 58 ...... 852
art. 59 ...... 833. 852
art. 60 ...... 708. 834. 853
art. 60(1)...... 853
art. 60(3)...... 852
art. 60(5)...... 853
art. 61 ...... 855
art. 62 ...... 449. 855-7
art. 62(2)...... 873
art. 64 ...... 118. 721. 824. 850. 851. 858
art. 65 ...... 858
art. 66 ...... 858
art. 69 ...... 118. 721. 811. 824. 850-1
art. 70(l)(b) ......852
art.71...... 118.721.811.824.850. 851
art. 72 ...... 857-8
art. 75 ...... 835
art. 80 ...... 832
Annex ...... 926
Declaration on the Prohibition of Military. Political or Economic
Coercion in the Conclusion of Treaties ...... 849
1970
Convention for the Suppression of Unlawful Seizure of Aircraft (Hague
Convention) ...... 592. 599. 601-2. 977. 1049
art. 8 ...... 611
Declaration of Principles Governing the Seabed and Ocean Floor andthe Subsoil Thereof Beyond the Limits of National Jurisdiction......
454. 561

Declaration on Principles of International Law Concerning Friendly
Relations and Cooperation among States (UNGA resolution 2625
(XXV))......97. 109. 191. 192-3. 228.230-1. 270.271. 391.410.417.
423.444.917. 1018. 1021. 1037. 1039. 1043

TABLE O F TREAT I ES A N D A GR EEM EN T S

xcix

Hague Convention for the Recognition of Divorces and Legal
Separations ......578
1971
Agreement Relating to the International Telecommunications Satellite
Organization (INTELSAT)...... 223
Convention on the Establishment of an International Fund forCompensation for Oil Pollution Damage ......554. 809
Protocol (1992)...... 809
Convention Relating to Civil Liability in the Field of Maritime Carriageof Nuclear Material ......802
Convention for the Suppression of Unlawful Acts against the Safety of
Civil Aviation (Montreal Convention) ......472. 592. 599. 601. 602.
1049
Protocol for the Suppression of Unlawful Acts of Violence at Airports(1988)...... 602. 1049
Treaty on the Prohibition of the Emplacement of Nuclear Weapons andother Weapons of Mass Destruction on the Seabed ......797.
1067
1972
Convention on the International Liability for Damage Caused by Space
Objects ...... 484. 796
art. I ...... 768
art. I1...... 483. 763
art. I11...... 483. 763
art. XI ...... 731
art. XI1...... 483
Convention for the Prevention of Marine Pollution by Dumping from
Ships and Aircraft (Oslo Convention) ......554. 804
Annex I ......804
Annex I1......804
Convention on the Prevention of Marine Pollution by the Dumping ofWastes and Other Matter (London Convention) ...... 554. 804
art. 1 ...... 764
Convention on the Prohibition of the Development. Production andStockpiling of Bacteriological (Biological) and Toxin Weapons andon Their Destruction ......1067. 1068
Declaration of Guiding Principles on the Use of Satellite Broadcasting(UNESCO)...... 487

C

TABLE OF TREATIES A N D AGREEMENTS

European Convention on State Immunity...... 631
art. 1 ...... 660
art. 7 ...... 634
art. 11 ...... 648
art. 12 ...... 660
art. 15 ...... 632
art. 20 ...... 662
art. 23 ...... 661. 662
art. 28 ...... 654
Additional Protocol for the Establishment of a European Tribunal inmatters of State Immunity......631
FRG-GDR. Treaty on the Basis of Relations ...... 869
Stockholm Declaration on the Human Environment
preamble ...... 756
Principles
1 ......756. 778
6 ......803
8 ......758
21 ...... 759. 762
24...... 771-2
UNESCO Convention for the Protection of the World Cultural andNatural Heritage ...... 199-200
1973
Convention on the Prevention and Punishment of Crimes against
Internationally Protected Persons ......599. 600. 692-3. 1049
art. 1 ...... 600
art. 2 ...... 600. 681
art. 3 ...... 600. 681
art. 6 ...... 681
art. 7 ...... 681
art.8 ...... 611. 681
art. 63(l)(c)...... 590
Convention for the Suppression and Punishment of the Crime ofApartheid ...... 266. 599
art. 4 ...... 310
art. 7 ...... 310
International Convention for the Prevention of Pollution by Ships(MARPOL) (London)......554
art. 8 ...... 772

TABLE O F TREATIES A N D A GR EEM EN T S

ciInternational Telecommunications Convention
art. 33 ...... 489
UN Environment Programme Principles of Conduct in the Field of theEnvironment concerning Resources Shared by Two or More States
Principles
3 ......762
1974
Charter of Economic Rights and Duties of States (UNGA resolution
3281 (XXIX))...... 762. 1019
art. 2(2)...... 743
Consensus Definition of Aggression (UNGA resolution 3314
(XXIX))...... 391. 410. 1037
art. 1...... 1123
art. 3 ...... 1123
art. 3(g)...... 1043
art. 5(3)...... 423
art. 7 ...... 1037-8
Convention for the Prevention of Marine Pollution from Land-Based
Sources (Paris Convention) ...... 554. 755
art. 1...... 780
Protocol Extending the Convention to Atmospheric Emissions of
Pollutants ...... 783
Convention on the Protection of the Marine Environment of the Baltic
Sea (Helsinki Convention)
Annex 6 ...... 772
Nordic Convention on the Protection of the Environment ......773. 801
art. 6 ...... 773
1975
ACP-EEC Convention (Lome I) ...... 1173
Convention on the Registration of Objects Launched into Outer
Space ...... 483. 484
Convention on the Representation of States in their Relations with
International Organizations ...... 678. 691-2. 1209
art. 30 ...... 691. 1209
art. 31 ...... 692
art. 36 ...... 692
art. 84 ...... 919
art. 85(7)...... 926

cii

TABLE O F TREATIES A N D AGREEMENTS

Declaration on the Protection of All Persons from being subjected toTorture and Other Cruel. Inhuman and Degrading Treatment or
Punishment (UNGA resolution 3452 (XXX)) ......304
Final Act of the Helsinki Conference on Security and Cooperation in
Europe ...... 111.269. 346-7.443. 813. 918. 936. 1179
Kenya-UN. Headquarters Agreement ...... 1206
Treaty of the Economic Community of West African States (ECOWAS)(as amended in 1993 and 2001) ......1157
art. 6 ...... 932
arts. 7-10 ...... 932
art. 58 ...... 932
Protocol Establishing the Court of Justice (1999)...... 941
Protocol Relating to Mutual Assistance on Defence (1981) ......1157
1976
Agreement on the Establishment of the ASEAN Secretariat ......1185
Convention for the Protection of the Mediterranean Sea (Barcelona
Convention)
Protocol of Cooperation in Case of Emergency (1976)...... 772. 806
art. 2 ...... 778
Protocols amending (198011982)......806
Declaration of ASEAN Concord ...... 1185
Japan-UN. Headquarters Agreement ...... 1206
Treaty of Amity and Cooperation in South East Asia (as amended 1987
and 1998) (ASEAN)...... 1185
1977
Convention on Civil Liability for Oil Pollution Damage Resulting from
Exploration and Exploitation of Seabed Mineral Resources ...... 808
Convention on the Prohibition of Military or any Other Hostile Use ofEnvironmental Modification Techniques ......1068
Czechoslovakia (subsequently Slovakia).Hungary. Treaty concerning
the Construction and Operation of the Gabtikovo-Nagymaros
System of Locks......874
European Convention on the Legal Status of Migrant Workers ...... 343
European Convention on the Suppression of Terrorism ...... 1052
art. 1 ...... 610
Protocol amending (2003)......1052
FRG-Netherlands. Agreement on the Siting of Nuclear Power
Installations ......775
IAEA.UNDR0. Agreement on the Coordination of Assistance Activities
in the Case of Nuclear Accident ...... 800

TABLE OF TREATIES A N D AGREEMENTS

...

Clll

OECD Recommendation of Equal Right of Access in Relation toTransfrontier Pollution ......766. 773
Panama Canal Treaty......459. 584
Protocol additional to the Geneva Convention Relative to the Protectionof Civilian Persons in Time of War (Geneva Convention IV)(Protocol I) (relating to the Protection of Victims of International
Armed Conflicts) ...... 235-6. 303. 599. 1056
art. l(2)...... 1055
art. l(4)...... 1038. 1058. 1073
art. 20 ......1064. 1077
art. 35 ......1065
art. 35(2)...... 1065
art. 35(3)...... 1068
art. 43 ...... 1058. 1061
art. 44 ......1058
art. 44(3)...... 1059
art. 45 ......1059
art. 48 ......1063. 1065
art. 50(1)...... 1061
art. 51 ......1063-4
art. 5 l ( 4 )...... 1064
art. 51(6)...... 1077
art. 52 ......1064
art. 52(2)...... 1063. 1064
art. 53 ......1064
arts. 53-6 ...... 1064
art. 54 ......1065
art. 55 ...... 1068
art. 56 ......1065
art. 57 ......1064
art. 75 ......1060. 1061
art. 83 ......1076
art. 85 ...... 236. 1077
art. 87 ...... 236
art. 90 ...... 925. 1077
Protocol additional to the Geneva Convention Relative to the Protectionof Civilian Persons in Time of War (Geneva Convention IV)(Protocol 11) (relating to the Protection of Victims of
Non-International Armed Conflicts) ...... 235-6. 303. 1056. 1073-6
art. 1 ...... 1073
art. 4 ...... 1074

civ

TABLE O F TREATIES A N D AGREEMENTS

art. 5 ...... 1074
art. 6 ...... 1074
art. 15 ...... 1074
art. 17 ...... 1074
art. 19 ...... 1076
UK-USA Air Services Agreement (Bermuda 11)......466.468-9. 813
1978
Australia-Papua New Guinea. Maritime Boundaries Treaty...... 531
Convention on Future Multilateral Cooperation in the Northwest
Atlantic Fisheries ......559
FRG-Switzerland. Agreement on Nuclear Installations ......798
Kuwait Regional Convention for Cooperation on the Protection of the
Marine Environment from Pollution (including Protocols of 1978.
1989 and 1990) ......806
art. VI ...... 774
Vienna Convention on Succession of States in Respect of Treaties ......
449. 864
art. 2 ...... 864
art. 2(1)......882
art. 2 ( l ) ( e )......864
art. 7 ...... 871
art. 8 ...... 883
art. 9 ...... 884
art. 11 ...... 873
art. 12 ...... 874
art. 12(3)...... 874
art. 15 ...... 876. 878
art. 16 ...... 882
art. 17 ...... 883
art. 17(3)...... 876. 883
art. 24 ...... 882-3
art. 27(2)...... 883
art. 28 ...... 900
art. 29 ...... 876
art. 30 ...... 883. 900
art. 31 ...... 876-8. 900
art. 31(1)...... 876
art. 31(2)...... 876
art. 34 ...... 879. 880. 885

TABLE OF TREATIES A N D AGREEMENTS

art. 35 ...... 879-80
art. 41 ...... 919
1979
ACP-EEC Convention (Lome 11)...... 1173
Agreement concerning the Activities of States on the Moon and other
Celestial Bodies
art. IV......485
art. XI ...... 454. 485
art. XI(2)...... 485
art. XI(4)...... 485
art. XI(5)...... 485
art. XI(7)...... 485
art. XVI ...... 768
Austria-UN. Headquarters Agreement ...... 1206
China-USA. Claims Settlement Agreement ......733
Constitution of the United Nations Industrial Development
Organization (UNIDO)
art. 22(1)...... 938
Convention against the Taking of Hostages ......592. 1049
art. 1 ...... 600
art. 9 ...... 590
Convention on the Elimination of All Forms of Discrimination against
Women ......251. 267. 268. 831
art. 4(1)...... 269
art. 9 ...... 587
arts. 17-21 ......300
art. 21 ...... 301
art. 22 ...... 300
Optional Protocol (1999)...... 301
Convention on Long-Range Transboundary Air Pollution (Geneva)......
780
preamble ...... 762
art. 1 ...... 765. 767
art. l ( b )...... 781
art. 2 ...... 781
art. 3 ...... 781
art. 4 ...... 782
art. 5 ...... 773. 782
art. 6 ...... 781

cvi

TABLE O F TREAT I ES A N D A GR EEM EN T S

art. 8 ...... 782
art. 8(b)...... 773. 782
Protocol dealing with Long-Term Financing (1984)......776
Protocol on Reduction of Sulphur Emissions (Helsinki) (1985)......
782
Protocol on Control of Nitrogen Oxides Emissions (Sophia)(1988)...... 782
Protocol on Control of Volatile Organic Compounds Emissions(1991)...... 782
Protocol on Further Reduction of Sulphur Emissions (Oslo)(1994)...... 776. 782-3
Protocol on Persistent Organic Pollutants (1998)...... 783
Protocol on Heavy Metals (1998)......783
Protocol on Acidification. Eutrophication and Ground-Level Ozone(1999)...... 783
Egypt-Israel. Peace Treaty...... 1111. 1183
art. 5 ...... 461
art. 5(2)...... 515
1980
Convention on the Conservation of Antarctic Marine Living
Resources ...... 457
Convention on the Physical Protection of Nuclear Material ...... 1049
preamble ...... 1065
Convention on Prohibitions or Restrictions on the Use of Certain
Conventional Weapons which may be Deemed to be Excessively
Injurious or to Have Indiscriminate Effects (as amended 1996 and2001)
preamble ...... 1065
Protocol I ......1068
Protocol I1 (as amended 1996) ...... 1068
Protocol I11......1068
Protocol IV...... 1068
European Outline Convention on Transfrontier Cooperation between
Territorial Communities or Authorities ...... 343
Iceland-Norway. Agreement concerning Fishery and Continental Shelf
Questions ......927
Portugal-Spain. Agreement on the Siting of Nuclear Power
Installations ...... 775
UK-International Maritime Satellite Organization. Headquarters
Agreement
art. 6 ...... 1212

TABLE OF TREATIES A N D AGREEMENTS

1981
African Charter on Human and Peoples' Rights (Banjul)......256.
363-5
art. 5 ...... 303
arts. 19-22 ......363
art. 20 ...... 270
art. 24 ...... 756
arts. 27-9 ...... 364
art. 45 ...... 364
arts. 47-54 ......364
art. 55 ...... 364
art. 56 ...... 364
art. 58(1)...... 365
art. 58(2)...... 365
art. 58(3)...... 365
art. 62 ...... 365
Protocol on the Establishment of an African Court of Human Rights(1998)
art. 5 ...... 365
art. 34(6)......365
Convention for the Protection of the Marine Environment and Coastal
Areas of the South-East Pacific (Lima) and Protocols ...... 806
Declaration on the Elimination of All Forms of Intolerance and ofDiscrimination Based on Religion or Belief (UNGA resolution
36/55) ...... 267, 284
International Tin Agreement (Sixth)...... 655. 1202. 1203. 1213
Iran-US. Claims Settlement Declaration ...... 729
art. I11...... 947
art. IV......947
art. V...... 946
Treaty Establishing the Organization of Eastern Caribbean States ......
926. 927
art. 3 ...... 1155
art. 4 ...... 1155
UK-Philippines. Investment Agreement ...... 748
UK-USA. Agreement on Vessels Trafficking in Drugs ......553
1982
France. FRG. UK. US. Agreement Concerning Interim Arrangements
Relating to Polymetallic Nodules of the Deep Seabed ...... 564
FRG-Switzerland. Agreement on the Siting of Nuclear Power
Installations ...... 775

cviiiTABLE O F TREATIES A N D AGREEMENTS

ILA Montreal Rules on Transfrontier Pollution ...... 765. 780

art. 3 ...... 766
art. 5 ...... 773
ILC Draft Articles on the Law of Treaties between States andInternational Organizations or between International
Organizations ...... 858
art. 36 bis......859
art. 66 ...... 860
International Telecommunications Union Convention and Optional
Protocolart. 50 ...... 938
art. 82 ...... 938
Law of the Sea Convention ...... 410.492-3. 927
Part I
art. 1 ...... 561
art. l(4)...... 765. 766
Part 11. section 2
art. 3 ...... 505
art. 7 ...... 498
art. 8(1)...... 493
art. 8(2)...... 493
art. 10 ......499
art. 13(2)......495
art. 15 ......506
Part 11. section 3(a)art. 17 ......508. 541
art. 18 ......508
art. 19(2)......508. 510-11
art. 21 ......510
art. 21(1)......509
art. 22 ......509. 510
art. 23 ......510
art. 25 ......510
Part 11. section 3(b)art. 27(1)......511
art. 28 ......511-12
Part 11. section 3(c)art. 31 ......628
art. 32 ......628
Part 11. section 4
art. 33 ......517

TABLE OF TREATIES A N D AGREEMENTS

Part 111. section 1
art. 34 ...... 513
art. 35 ...... 513
art. 35(c)...... 515
art. 36 ...... 513
Part 111. section 2
art. 37 ...... 513
art. 38 ......464. 513. 514
art. 38(1)......513. 514. 541
arts. 38-42 ...... 514
art. 39 ......464. 514
art. 41 ...... 514
art. 42 ...... 514
art. 44 ......513. 514
Part 111. section 3
art. 45 ......513-14
art. 45(2)......514
Part IV
art. 46(a)......503
art. 46(b)...... 503
art. 47 ......503-4
art. 49 ......503-4
art. 50 ......503-4
art. 51 ......503-4
art. 52 ......503-4
art. 52(1)......541
art. 53 ......465. 503-4
art. 53(2)......541
Part V
art. 55 ......517. 519
art. 56 ......519. 523
art. 56(1)......556
art. 57 ......519
art. 58 ......519. 569
art. 58(1)...... 541
art. 59 ......102. 519
art. 60 ......519-20. 526
art. 60(2)......519-20
art. 61 ......556
arts. 61-9 ......519
art. 62 ......556

CX

TABLE OF TREATIES A N D AGREEMENTS

art. 63(2)......557
art. 64 ......557
art. 65 ......557
art. 66 ......557
art. 67 ......557
art. 68 ......557
art. 69(1)......542
art. 69(2)......542
art. 69(4) ......542
art. 70(1)......542
art. 70(2)......542
art. 70(5)......542
art. 71...... 542
art. 72 ......519
art. 74 ......102, 536
art. 74(1)......536
Part VI
art. 76 ......524
art. 76(1)......524
art. 76(8)......525
art. 77 ......525
art. 77(4)......525, 557
art. 78 ......526
art. 79 ......526
art. 80 ......526
art. 82 ......526
art. 82(3)......527
art. 83 ......102, 530, 536
art. 83(1)......536
Part VII, section 1
art. 86 ......543
art. 87 ......541, 543
art. 88 ......544
art. 90 ......541
art. 91 ...... 545, 589, 1010
art. 92 ......547, 552
art. 94 ......545, 548
art. 95 ......548, 628
art. 96 ......548, 628
art. 97 ......548

TABLE OF TREATIES A N D AGREEMENTS

art. 98 ...... 548
art. 99 ......548. 550
art. 101 ...... 549. 593
art. 105 ...... 549. 593
art. 106 ...... 549
art. 108 ...... 550
art. 109 ...... 548-9. 550
art. 110 ...... 548-9. 550. 551
art. 111 ...... 551. 1010
art. 112 ...... 562
art. 113 ...... 548
art. 115 ...... 548
Part VII. section 2
art. 116 ...... 556
art. 116(b)...... 557
arts. 117-20...... 557
Part VIII
art. 121(1)...... 501
art. 121(2)...... 501
art. 121(3)...... 501-2. 519. 525
Part X
art. 125 ...... 541
arts. 127-30 ...... 541
art. 131 ...... 541
Part XI ......561-6
Part XI. section 2
art. 136 ...... 454. 561
art. 137 ...... 454. 561
art. 139 ...... 764
art. 140 ...... 102. 562
art. 143 ...... 562
art. 148 ...... 542
art. 149 ...... 525. 897
Part XI. section 3
art. 150 ...... 562
art. 151 ...... 562
art. 152 ...... 542
art. 153 ...... 1006
art. 160 ...... 542
art. 161 ...... 542

cxii

TABLE O F TREAT I ES A N D A GR EEM EN T S

Part XI. section 4
art. 157 ...... 566
art. 159(1)...... 567. 1007
art. 160 ...... 567
art. 161(1)...... 567
art. 162 ...... 567
arts. 163-5 ...... 567-8
arts. 166-9 ...... 567-8
art. 170 ...... 569
Part XI. section 5 ...... 1007
art. 186 ...... 1006
art. 187 ...... 1006
art. 188 ...... 1006
art. 191...... 1007
Part XI1......519. 554. 1006
Part XII. section 1
art. 192 ...... 554. 762
art. 194 ...... 554-5. 762. 764. 766. 806
Part XII. section 2
art. 198 ...... 772
Part XII. section 4
art. 204 ...... 774
art. 206 ...... 774
Part XII. section 5
art. 207 ......806
art. 21 1...... 554
art. 21 l ( 2 )......807
art. 21 l ( 7 )...... 772
art. 212 ...... 783
Part XII. section 6
art. 217 ......807
art. 218 ......807
art. 220 ......807
Part XII. section 9
art. 235 ...... 554. 764
Part XI11...... 519
Part XIII. section 3
art. 246(5)...... 569
art. 246(6)...... 569
art. 256 ...... 562

TABLE OF TREATIES A N D AGREEMENTS

Part XV...... 1005
Part XV. section 1 ...... 568-71
art. 279 ...... 568
art. 280 ...... 568
art. 281(1)...... 571
art. 282(1)...... 919
art. 283 ...... 568
art. 284 ...... 568
Part XV. section 2 ...... 568
art. 286 ...... 568
art. 287 ...... 568
art. 289 ...... 1006
art. 290...... 1007-8
art. 290(5)...... 1009. 1010
art. 290(6)...... 1008
art. 291(1)...... 1006
art. 292 ...... 729. 1009
art. 293 ...... 1006. 1007
art. 294 ...... 1008
art. 295...... 730
Part XV. section 3
art. 297(1)...... 569
art. 297(2)...... 569
art. 297(3)...... 569. 570
art. 298(1) ...... 570
Part XVI
art. 303 ...... 525. 898
Part XVII
art. 311(1) ......493
Agreement Relating to the Implementation of Part XI ...... 492
Annex I1
art. 4 ...... 524
Annex I11
art. 3 ...... 562
art. 4 ...... 562
art. 8 ...... 562
art. 9 ...... 562
Annex IV...... 568
Annex V. section 1 ...... 568
Annex V. section 2 ...... 569. 570

cxiv

TABLE O F TREATIES A N D AGREEMENTS

Annex VI ...... 568. 1005
see also Statute of the Law of the Sea Tribunal
Annex VI. section 4 ...... 570
Annex VII ......569. 570
Annex VIII ...... 569
art. 1 ...... 569
Manila Declaration on the Peaceful Settlement of Disputes (UNGA
resolution 371590) ......917
section I
para. 3 ...... 918
para. 6 ...... 929
para. 10 ......918. 920
Statute of the Law of the Sea Tribunal
art. 2 ...... 1006
art. 5 ...... 1006
art. 8 ...... 1006
art. 9 ...... 1006
art. 13 ...... 1006
art. 14 ...... 1007
art. 15(1)...... 1007
art. 15(3)...... 1007
art. 17 ...... 1006
arts. 18-22 ......1006
art. 20(1)...... 1006
art. 20(2)...... 1006
art. 21 ...... 1006
art. 22 ...... 1006
art. 23 ...... 1006
art. 25(1)...... 1008
art. 28 ...... 1008
art. 31 ...... 1008
art. 32 ...... 1009
art. 33 ...... 1009
art. 35 ...... 1007
art. 36 ...... 1007
art. 38 ...... 1007
art. 39 ...... 1007
1983
Canada-Denmark. Agreement for Cooperation Relating to the Marine
Environment ...... 774

TABLE OF TREATIES A N D AGREEMENTS

CXV

Convention for Cooperation in Dealing with Pollution of the North Sea
by Oil and Other Harmful Substances ......808
Convention for the Protection and Development of the Marine
Environment of the Wider Caribbean (Cartagena) and Protocols of
1983 and 1990 ...... 806
Declaration of Principles Governing the Use by States of Artificial EarthSatellites for International Direct Television Broadcasting (UNGA
resolution 37/92) ...... 487
France.UK. Exchange of Notes concerning Exchanges of Information in
the Event of Emergencies Occurring in One of the Two States which
could have Radiological Consequences ...... 798
Vienna Convention on Succession of States in Respect of State Property.
Archives and Debts ......864. 890-904
art. 2 ...... 864
art. 2(l)(e)......882
art. 8 ...... 891
art. 10 ...... 892
art. 11 ...... 864. 893
art. 12 ...... 893
art. 14...... 891
art. 15(l)(b)...... 894
art. 17...... 891. 893. 894-5
art. 17(l)(c)...... 895
art. 18...... 891. 893
art. 18(l)(d)...... 895
art. 20 ...... 898
art. 21 ...... 892
arts. 21-4 ...... 898
art. 22 ...... 891
art. 23 ...... 891
art. 27 ...... 891. 898
art. 28 ...... 891. 898
art. 28(2)...... 899
art. 28(3)...... 899
art. 29 ...... 899
art. 30 ...... 891. 899
art. 31 ...... 891
art. 33 ...... 901
art. 35 ...... 892
art. 37 ...... 891

cxvi

TABLE O F TREATIES A N D A GR EEM EN T S

art. 38 ...... 891
art. 39 ...... 901
art. 40 ...... 891. 903
art. 41 ...... 891. 903-4
art. 42 ...... 919
1984
ACP-EEC Convention (Lorni. 111)......1173
Belgium. France. FRG. Italy. Japan. Netherlands. UK. US. provisional
Understanding Regarding Deep Seabed Mining ...... 564
China-UK. Joint Declaration on the Question of Hong IZong with
Annexes ......912-13
Annex I. Article XI11...... 913
Convention for the Protection of Submarine Cables ...... 552-3
IAEA Guidelines for Mutual Emergency Assistance Arrangements inConnection with a Nuclear Accident or Radiological Emergency......
800
UN Convention against Torture and Other Cruel. Inhuman and
Degrading Treatment or Punishment ......251. 255. 284. 303. 304.
817
art. 1 ...... 304
art. 2 ...... 304
art. 3 ...... 304. 305. 306
art. 4 ...... 304. 599
art. 5 ...... 304. 599
art. 5 ( l ) ( c )......590
art. 7 ...... 304. 599
art. 8 ...... 599
art. 14 ...... 304
art. 17(2)...... 304
arts. 17-24...... 304
art. 19 ...... 305
art. 20 ...... 305
art. 21 ...... 305
art. 22 ...... 305
Optional Protocol (2003)...... 306
1985
Convention Establishing the Multilateral Investment Guarantee
Agency......751

TABLE O F TREAT I ES A N D A G R E E M E N T S

cxvii

Declaration on the Human Rights of Individuals who are not Nationalsof the Country in which they live (UNGA 401144) ...... 736
European Charter of Local Self-Government ...... 343
Inter-American Convention to Prevent and Punish Torture (Charter of
the Organization of American States. Protocol of Cartagena deIndias) ......303
art. 17 ...... 357
Treaty Establishing a South Pacific Nuclear-Free Zone (Rarotonga) ......
544.797. 1067
Vienna Convention for the Protection of the Ozone Layer......755. 776.
784-6.926. 927
art. l(1)...... 784
art. l(2)...... 766. 785
art. 2 ...... 764. 785
art. 2(1)...... 785
art. 7 ...... 785
art. 11 ...... 785
Protocol on Ozone-Depleting Substances (Montreal) (1987) ...... 755.
776.78 5-6
art. 1 ...... 785
art. 3 ...... 785
1989 Helsinki Declaration on the Protection of the Ozone Layer......
785
1990 Amendments ...... 778. 786
1992 Copenhagen Adjustments ...... 786
1986
Declaration on the Right to Development (UNGA resolution 411128)
art. 1 ...... 280
art. 3 ...... 280
art. 4 ...... 280
art. 8 ...... 280
art. 9 ...... 280
France-New Zealand. Agreement Implementing Ruling of theSecretary-General of the United Nations on the Solution of the
Rainbow Warrior Dispute ......695. 712. 852
France-New Zealand. Agreement Providing for the Submission of
Disputes Arising from the Rainbow Warrior Affair to theSecretary-General of the United Nations ...... 695

cxviii

TABLE O F TREAT I ES A N D A GR EEM EN T SFrance-United Kingdom. Treaty concerning the Construction andOperation by Private Concessionaires of a Channel Fixed Link
(Treaty of Canterbury)
Protocol concerning Frontier Controls and Policing etc. (1991)......
582-3
art. 38(1)......583
art. 38(2)......583
Protocol (2000)...... 583
Principles on Remote Sensing ...... 488
Single European Act ...... 1173. 1176
Treaty on Assistance in Case of a Nuclear Accident or Radiological
Emergency......797. 800-1
art. 2(1)...... 800
art. 2(2)...... 800
art. 2(5)...... 800
art. 3(a)......800
art. 5 ...... 800
art. 7 ...... 800
art. 8 ...... 801
art. lO(2)...... 800
UK-USSR. Agreement on the Settlement of Mutual Financial andProperty Claims ......750
Vienna Convention on Early Notification of a Nuclear Accident ...... 798
art. 2 ...... 799
art. 5 ...... 799
art. 6 ...... 799
Statements of Voluntary Application ...... 799
Vienna Convention on the Law of Treaties between States andInternational Organizations and between International
Organizations ...... 811. 812. 858-60
art. 8(2)...... 821
art. 66(2)...... 860
art. 73 ...... 859
art. 74(3)...... 860
1987
ASEAN Manila Declaration ......1185
Belgium. Canada. Italy. Netherlands. USSR. Agreement on the
Resolution of Practical Problems with respect to Deep Sea Mining
Areas ......564-5
Exchange of Notes (FRG. UK. USA) ...... 565

TABLE O F TREATIES A N D AGREEMENTS

cxix

European Convention for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment ......303. 320. 337-40
art. 1 ...... 338
art. 2 ...... 338
art. 5 ...... 338
art. 7 ...... 338
art. 8 ...... 339
art. 9(1)...... 339
art. 10(2)...... 339
art. l l ( 1 )...... 339
art. 12 ...... 339
Protocol 1 ...... 337
Protocol 2 ...... 337
Natural Rubber Agreement ......1213
OAS Agreement Establishing an International Verification andFollow-up Commission (Contadora Process) (Esquipulas 11)......
935, 1112
SAARC Regional Convention on Suppression of Terrorism ......
1052
UK-Hungary, Investment Agreement ......748
198718Denmark-UK, Agreement on Early Notification of a Nuclear Accident
and Exchange of Information Concerning the Operation andManagement of Nuclear Facilities...... 799
Norway-UK, Agreement on Early Notification of a Nuclear Accident
and Exchange of Information Concerning the Operation andManagement of Nuclear Facilities......799
1988
Canada, ESRO Member States, Japan, USA, Agreement on Space
Stations ...... 484
art. 22 ...... 484
Convention for the Regulation of Antarctic Mineral Resource
Activities...... 457-8
art. l(15)...... 766, 767
art. 7 ...... 764
art. 8 ...... 764
art. 8(2)...... 919
Convention for the Suppression of Unlawful Acts Against the Safety of
Maritime Navigation ...... 549, 599, 1049
Protocol (1989)...... 549, 599

CXX

TABLE OF TREATIES A N D AGREEMENTS

Protocol for the Suppression of Unlawful Acts Against the Safety of
Fixed Platforms Located on the Continental Shelf ...... 1049
Vienna Convention Against Illicit Traffic in Narcotic Drugs andPsychotropic Substances ......553. 599
1989
ACP-EEC Convention (Lome IV) ......1173
Base1 Convention on the Control of Transboundary Movements ofHazardous Wastes and Their Disposal ...... 755
art. 4 ...... 804
art. 6 ...... 804
art. 13 ...... 772
Chad-Libya. Framework Agreement on the Peaceful Settlement of the
Territorial Dispute ...... 915
Concluding Document of the Vienna Follow-Up to the Helsinki
Conference on Security and Cooperation in Europe (1975)......
347-8
Convention on the Rights of the Child ...... 284.295. 584
art. 2(1)...... 268
art. 6 ...... 307
art. 7 ...... 307. 587
art. 13 ...... 307
art. 14 ...... 307
art. 19 ...... 307
art. 24 ...... 307
art. 29 ...... 756
art. 32 ...... 307
art. 33 ...... 307
art. 38 ...... 307
art. 43 ...... 307-8
art. 44 ...... 308
art. 45 ...... 308
Optional Protocol on the Involvement of Children in Armed Conflict(2000)...... 308. 1061
Optional Protocol on the Question of the Sale of Children. Child
Prostitution and Child Pornography (2000)...... 308
Decisions of the Sofia CSCE Conference on the Environment ......756
European Charter on Environment and Health ......757
ILC Draft Articles on the Diplomatic Courier and Diplomatic Bag
art. 3(2)...... 676
art. 10 ...... 678

TABLE O F TREATIES A N D AGREEMENTS

cxxi

art. 17 ...... 678
art. 18 ...... 678-9
art. 21 ...... 679
art. 28 ...... 678
ILO Convention 109 (Indigenous and Tribal Populations in
Independent Countries) ......278
art. l(2)...... 278
art. l(3)...... 278
International Convention on Salvage ...... 808
UK-USSR, Bilateral Investment Treaty......748-9
USA-USSR, Agreement on Bering Straits Regional Commission ......515
1990
Agreement Establishing the European Bank for Reconstruction andDevelopment
art. 2(1)...... 778
arts. 46-55 ......1206
Bergen Ministerial Declaration on Sustainable Development ......776
Cairo Declaration on Human Rights in Islam ...... 366
Charter of Paris for a New Europe ...... 349. 936. 1179
Concluding Document of the Copenhagen Follow-Up to the Helsinki
Conference on Security and Cooperation in Europe (1975)......
348-9
Dublin Declaration on the Environmental Imperative ......757
ECE Code of Conduct on Accidental Pollution of Transboundary Inland
Waters ...... 767. 770
France. FRG. GDR. UK. USA. USSR. Treaty on the Final Settlement withrespect to Germany...... 869
FRG-France. UK. USA. Agreement on the Settlement of Certain Matters
Relating to Berlin ...... 206
FRG-GDR. Treaty Establishing a Monetary. Economic and Social
Union ......205. 869
FRG-GDR. Treaty on the Establishment of German Unity (Unification
Treaty) ...... 205. 869
art. 1 ...... 870
art. 7 ...... 870
art. 8 ...... 870
art. 11 ...... 870. 876. 877
art. 12 ...... 870. 877
art. 21 ...... 896
art. 22 ...... 896

cxxiiTABLE O F TREATIES A N D A GR EEM EN T S

art. 23 ...... 901
Exchange of Notes Relating to the Presence of Allied Troops inBerlin ...... 206
FRGIGDR. France. UIZ. USA. USSR. Treaty on the Final Settlement with
Respect to Germany...... 302-6. 1067
International Convention on Oil Pollution Preparedness. Response andCooperation ...... 779. 808
International Convention on the Protection of the Rights of All MigrantWorkers and Members of Their Families
art. 2 ...... 309
art. 3 ...... 309
art. 18 ...... 309
art. 22 ...... 310
art. 25 ...... 309
art. 26 ...... 309
art. 28 ...... 310
art. 30 ...... 310
art. 31 ...... 310
art. 73 ...... 310
art. 76 ...... 310
art. 77 ...... 310
Model Status of Forces Agreement for Peacekeeping Operations ......
1115
USA-USSR. Maritime Boundary Agreement ......521
Yemen. People's Democratic Republic-Yemen Arab Republic. Merger
Agreement ......868
1991
Argentina. Brazil. Paraguay. Uruguay. Mercosur Treaty Protocol of
Brasilia (1991)......941
Belarus. Russia. Ukraine. Minsk Agreement ......866
art. 5 ...... 873. 1181
art. 6 ...... 1181
art. 7 ...... 1181
Canada-USA. Air Quality Agreement ...... 783
Convention on Environmental Impact Assessment in a Transboundary
Context (ESRO)...... 757
art. 2 ...... 767
art. 3 ...... 773
art. 3(4)...... 775
art. 3(8)...... 775

TABLE O F TREATIES A N D A GR EEM EN T S

cxxiiiart. 5 ...... 775
art. 6(1)...... 775
art. 7 ...... 776
Appendix I ...... 775
Appendix I11......775
Appendix V...... 776
Convention on the Marking of Plastic Explosives for the Purpose of
Detection ...... 467, 472
Declaration of Minimum Humanitarian Standards (UNSub-Commission on the Prevention of Discrimination andProtection of Minorities)
art. 3 ...... 1076
art. 4 ...... 1076
art. 6 ...... 1076
art. 8 ...... 1076
art. 10 ......1076
art. 12 ......1076
art. 14 ......1076
European Commission-USA, Agreement Regarding the Application ofCompetition Laws ...... 618
ILC Draft Articles on Jurisdictional Immunities of States and Their
Property ......632, 657, 658, 663
art. 2 ( l ) ( b )...... 653, 655
art. 2(l)(c)......646
art. 2(2)...... 633, 646
art. 8 ...... 660
art. 9 ...... 660
art. 10 ...... 645
art. 12 ...... 648
art. 17 ...... 660
art. 18 ...... 661, 663
Inter-American Convention on the Elimination of All Forms ofDiscrimination against Persons with Disabilities ...... 359
Model Status of Forces Agreement for Peacekeeping Operations ...... 1116OAU Convention on the Ban of the Import into Africa and the Controlof Transboundary Movement and Management of Hazardous
Wastes within Africa (Bamako Convention) ......804
art. 4(3)...... 777
Paris Peace Agreements (Cambodia) ...... 208
Yamoussoukro IV Accord (Libya) ......1158

cxxiv

TABLE O F TREAT I ES A N D A GR EEM EN T S

1992
Agenda 21 (Rio)para. 8 ...... 778
para. 39 ...... 778
Agreement on the European Economic Area ......1174
Convention on Biological Diversity (Rio) ......455. 754. 755. 777
preamble ...... 778
art. 1 ...... 778
art. 8 ...... 778
art. 11 ...... 778
art. 121 ...... 778
art. 161 ...... 778
art. 171 ...... 778
art. 181 ...... 778
Convention on the Protection of the Black Sea Against Pollution ...... 806
Convention on the Protection of the Marine Environment of the Baltic
Sea Area ...... 806
Convention for the Protection of the Marine Environment of theNorth-East Atlantic ...... 806
art. 9 ...... 799
Convention on the Protection and Use of Transboundary Watercourses
and International Lakes
art. l ( 1 )...... 791
art. l ( 2 )...... 767
art. 2 ...... 764
art. 2(5)...... 777. 779
Convention on the Transboundary Effects of Industrial Accidents ......
779. 805
art. l(g)...... 805
art. 2(2) ......805
art. 4 ...... 805
art. 6 ...... 805
art. 7 ...... 805
art. 8 ...... 805
art. 10 ...... 805
Annex I ...... 805
Annex I1......805
Annex I11...... 805
Annex IV...... 805

TABLE OF TREATIES A N D AGREEMENTS

CXXV

Annex V...... 805
Annex IX ......805
Czech Republic-Slovakia, Treaty for the General Delimitation of theCommon State Frontiers ......873
Decisions of the Helsinki CSCE Conference ...... 349-50
Declaration on the Rights of Persons Belonging to National or Ethnic.
Religious and Linguistic Minorities (UNGA resolution 471135) ......
277
art. 1 ...... 277
Declaration and Treaty establishing the Southern African Development
Community (SADC)
2001 Protocol Establishing an Organ on Politics. Defence and Security
Cooperation ...... 933-4
art. 2(f)...... 934
art. 3 ...... 934
art. 4 ...... 934
art. 5 ...... 934
art. 6 ...... 934
art. 7 ...... 934
art. 11 (2)...... 934
art. 11 (3)...... 934
European Charter for Regional or Minority Languages ...... 340
art. 15 ...... 340
art. 16 ...... 340. 341
art. 17 ...... 340
art. 20 ...... 341
European Convention on the Participation of Foreigners in Public Lifeat Local Level ...... 343
Framework Agreement on Enhancing ASEAN Economic
Cooperation ...... 1185
International Convention on Civil Liability for Oil Pollution Damage
Protocol on Liability: see Convention on Civil Liability for Oil
Pollution Damage (1969)
International Sugar Agreement ...... 1213
Mozambique-RENAMO rebels. Peace Agreement ......1106. 1112
North American Free Trade Agreement (NAFTA)
Chapter 11 ...... 941-2
art. 1110 ...... 744
art. 1120 ...... 944

cxxviTABLE O F TREATIES A N D AGREEMENTS

art. 1131 ...... 942
art. 1132 ...... 942
Chapter 14 ...... 941-2
Chapter 19 ...... 941-2
arts. 1903-5 ...... 942
Chapter 20 ...... 941-2
art. 2001 ...... 942
art. 2002 ...... 942
arts. 2003-8...... 942
art. 2018 ...... 942
art. 2019 ...... 943
OSCE Convention on Conciliation and Arbitration ......937
art. 1 ...... 937
art. 2 ...... 937
art. 3 ...... 937
art. 4 ...... 937
art. 25 ...... 937
art. 26 ...... 937
art. 26(1)...... 937
art. 31 ...... 937
Rio Declaration on Environment and Development
Principles
1 ......757
2 ......759. 762
3 ...... 281. 778
4 ......778
7 ......772. 777
9 ......798
13...... 772
14 ......803
15 ...... 776-7
16 ...... 779
18 ...... 773
19 ...... 98. 773
27 ...... 98. 772. 778
Statement of Principles for a Global Consensus on the Management.
Conservation and Sustainable Development of All Types of Forests(Rio)...... 778
Treaty on European Union (Maastricht Treaty) ......162. 345. 1173-4.
1176

TABLE O F TREATIES A N D AGREEMENTS

cxxvii

Title I
art. 6 ...... 345
art. 7 ...... 345
art. A...... 216
art. F(2)......345
Title V...... 345. 1170
Title VI
art. K.l ......345
art. K.2 ......345
Title VIII
art. 49 ......345
UN Framework Convention on Climate Change ...... 767.78 7-9
art. l(8)...... 787
art. 2 ...... 787
art. 3(1)...... 777
art. 3(3)...... 777
art. 3(4)...... 777-8
art. 4 ...... 778
art. 4(1)...... 787
art. 4(2)...... 787, 788
art. 4(8)...... 788
art. 7 ...... 788
arts. 8-10 ...... 788
art. 12 ...... 778
Annex I ......787
Annex I1......788
Kyoto Protocol (1997)...... 789
USA-Belarus, Kazakhstan, Russia, Ukraine, Agreement for Admission to
START......881
1993
Alma Ata Declaration ...... 866. 873
Charter Establishing the Commonwealth of Independent States(CIS) ...... 215-16
art. 1 ...... 216. 1181
art. 21 ...... 216. 1181
art. 22 ...... 216. 1181
art. 23 ...... 216. 1181
art. 27 ......1181
art. 28 ...... 1181

cxxviii

TABLE O F TREATIES A N D A GR EEM EN T S

art. 30 ...... 1181
art. 31 ...... 1181
art. 32 ...... 1181
art. 33 ...... 1181
China-UK, Exchange of Notes with regard to Liability for Damages
Arising During the Launch Phase of Asiasat Satellite ...... 483
CIS Treaty on Economic Union ......216. 1181-2
Convention for the Conservation of Southern Bluefin Tuna ...... 570 art.
16 ...... 570-1
Convention on the Prohibition of the Development. Production.
Stockpiling and Use of Chemical Weapons and on Their
Destruction ...... 1067. 1068
Cotonou Peace Agreement (Libya) ......1158
Council of Europe Convention on Civil Liability for Environmental
Damage ......799
art. 2(7)...... 767
art. 2(10)...... 767
Declaration of Principles Relevant to the Use of Nuclear Power Sourcesin Outer Space (UNGA resolution 47/68) ...... 483-4
Holy See-Israel. Fundamental Agreement ......219
Indian Ocean Tuna Commission Agreement ...... 560
Israel-Palestine Liberation Organization. Declaration of Principles ......
221
Israel-Palestine Liberation Organization. Exchange of Letters of Mutual
Recognition and Commitment to the Peace Process ...... 221
OAU Declaration on a Mechanism for Conflict Prevention.
Management and Resolution (Cairo Declaration) ...... 931
Rwanda-UN. Agreement on the Status of UN Mission ......1116
Statute of the International Criminal Court for the Former Yugoslavia(ICTY)
arts. 2-5 ......239
art. 3 ...... 1070
art. 3(a)......1065
art. 4 ...... 263
art. 5 ...... 596
art. 7 ...... 239. 656
art. 7(3)...... 236
art. 7(4)...... 237
art. 29 ...... 141

TABLE O F TREATIES A N D A GR EEM EN T S

cxxix

Treaty Establishing the Common Market for Eastern and Southern
Africa (Comesa)......941
Vienna Declaration and Programme of Action ...... 261. 280. 302. 308.
311
1994
Agreement Establishing the World Trade Organization ......1167-8
Annex 2 (Dispute Settlement Understanding) ......940-1
Agreement on the Implementation of the Seabed Provisions of the 1982
Convention on the Law of the Sea ...... 565-6
art. 1 ...... 565
art. 2 ...... 565
art. 4 ...... 565
art. 7 ...... 565
art. 45 ......565
art. 155(1)...... 565
Annex ......566
Arab Charter on Human Rights ...... 365-6
art. 8 ...... 366
art. 9 ...... 366
art. 13 ...... 366
art. 25 ...... 366
art. 27 ...... 366
art. 28 ...... 366
art. 40 ...... 366
art. 41 ...... 366
Bosnia and Herzegovina-Croatia. Provisional Agreement Concerning
the Establishment of a Confederation ...... 21
Chad-Libya. Agreement concerning the Practical Modalities for the
Implementation of the ICJ Judgment of 3 February 1994
art. 1 ...... 915
art. 6 ...... 915
Convention on Nuclear Safetyart. 2(1)...... 801
art. 4 ...... 801
art. 5 ...... 801
art. 7 ...... 801
art. 7(2)...... 801
art. 8 ...... 801
art. 9 ...... 801

CXXX

TABLE OF TREATIES A N D AGREEMENTS

arts. 10-19 ......801
arts. 20-5 ...... 801
art. 28 ...... 801
Convention on the Preservation and Management of Pollock Resourcesin the Central Bering Sea ......560
Convention on the Safety of United Nations and Associated Personnel
art. 4 ...... 1115
art. 6 ...... 1115
art. 9 ...... 600, 1115
art. 10 ...... 600. 601. 1115
arts. 13-15 ...... 1115
art. 14 ...... 601
art. 17 ...... 1115
Decisions of the Budapest OSCE Conference ...... 351. 1179
Declaration on the Elimination of Violence against Women. its Causes
and Consequences (UNGA resolution 481104)...... 302
Declaration on Measures to Eliminate International Terrorism (UNGA
resolution 49160)......1049
Draft UN Declaration on the Rights of Indigenous Peoples
art. 3 ...... 278
art. 4 ...... 278
art. 6 ...... 278
art. 7 ...... 278
art. 8 ...... 278-9
arts. 25-30 ...... 279
European Energy Charter Treaty
art. l ( 6 )...... 740. 748
art. 13 ...... 744
art. 19 ...... 759
art. 26(4)...... 944
ILA Revised Draft Articles for a Convention on State Immunity......633.
655
Inter-American Convention on Forced Disappearances of Persons ......
358
art. 13 ...... 358
art. 14 ...... 358
Inter-American Convention on the Prevention. Punishment andEradication of Violence Against Women ...... 302
art. 7 ...... 359
art. 10 ...... 358

TABLE O F TREATIES A N D AGREEMENTS

cxxxi

art. 11 ...... 358
art. 12 ...... 358
Israel-Jordan. Treaty of Peace ...... 452
art. 14(3)...... 515
art. 18 ...... 754
Annex I ......583
Annex I1......754
Annex IV...... 754
Israel-Palestine Liberation Authority. Interim Agreement for Further
Transfer of Powers ...... 222
Israel-Palestine Liberation Organization. Cairo Agreement Providing
for the Withdrawal of Israeli Forces from Jericho and the Gaza Stripand the Transfer of Authority to a Palestine Authority...... 221-2
Protocol (1995) for the Transfer of Additional Powers ...... 222
Statute of the International Criminal Court for Rwanda (ICTR)
art. 2 ...... 263
arts. 2-4 ...... 240
art. 3 ...... 596. 1078
art. 4 ...... 1074
art. 6 ...... 240. 656
art. 6(3)...... 236
art. 6(4)...... 237
art. 28 ......596
UN Convention to Combat Desertification ......756
1995
Agreement for the Implementation of the Provisions of the UN
Convention on the Law of the Sea (1982) Relating to theConservation and Management of Straddling Fish Stocks andHighly Migratory Fish Stocks ......557-9
art. l(3)...... 558. 559
art. 5 ...... 558. 777
art. 6 ...... 558. 777
art. 8 ...... 558
art. 17(3)...... 559
art. 19 ......559
art. 20 ...... 798
art. 22 ...... 559
art. 22(l)(f)...... 552
art. 23 ......559
CIS Agreement for the Defence of External Borders ...... 1182

cxxxii

TABLE O F TREATIES A N D A GR EEM EN T S

CIS Convention on Human Rights and Fundamental Freedoms ...... 216.
352-3
art. 14 ...... 352
art. 17 ...... 352
art. 21 ...... 352
art. 29 ...... 352
art. 34 ...... 352
Council of Europe Agreement on Illicit Traffic by Sea ...... 553
Council of Europe Framework Convention for the Protection of
National Minorities ...... 320. 340-3
art. 4 ...... 341
art. 5 ...... 341
art. 7 ...... 341
art. 8 ...... 341
art. 9 ...... 341
art. lO(2)...... 342
art. 11 (3)...... 342
art. 14(2)...... 342
art. 15 ...... 342
art. 24 ...... 342
art. 25 ...... 342
art. 26 ...... 342
Dayton General Framework Agreement for Peace......351. 384, 937-8.
1159. 1170
Agreement on Military Aspects
art. 10 ......209
Annex 1-B ...... 938
Annex 2 ...... 214
art. V...... 103
Annex 3...... 937
Annex 4 ...... 214
Annex 6...... 209. 353-4. 938
art. I1...... 353
art. VIII ...... 353
art. X......353. 354
art. XI ......354
Annex 7 ...... 209
Annex 10 ......209
Draft Inter-American Commission Declaration on the Rights ofIndigenous Peoples...... 279. 359

TABLE O F TREATIES A N D AGREEMENTS

cxxxiii

European Convention on the Exercise of Children's Rights ......343
European Convention on Simplified Extradition Procedure ...... 611
Final Declaration of the Final Conference on the Pact on Stability inEurope ...... 1180
Memorandum of Understanding Concerning Establishment of theInter-Organization Programme for the Sound Management ofChemicals ......805
Treaty on the Southeast Asia Nuclear Weapon-Free Zone ...... 544.
1067
Ukraine-USA. Exchange of Notes Relating to Bilateral Agreements
between the Two States ......881
1996

African Nuclear Weapon-Free Treaty (Pelindaba)......544. 1067
Convention on Extradition between the Member States of the European
Union ...... 611
ILC Draft Code of Crimes against the Peace and Security of Mankind
art. 8 ...... 596
art. 9 ...... 596
art. 16 ......597
art. 17 ......597. 1039
art. 18 ......597
art. 19 ......597
art. 20 ......597
art. 20(d)...... 1065
1997

Amsterdam Treaty amending the Treaty on European Union. theTreaties establishing the European Communities and certain
related Acts ...... 162. 345
Consolidated Treaty Establishing the European Community (Treaty of
Amsterdam)art. 17 ...... 723
art. 20 ...... 723
arts. 32-8 ...... 1173
arts. 220-45 ...... 1177
arts. 224-5 ......1177
art. 225(a)......1177
art. 226 ......1177
art. 227 ......1177
art. 234 ......1177

cxxxiv

TABLE O F TREATIES A N D A GR EEM EN T S

art. 281 ...... 1188
art. 282 ...... 1190
Consolidated Treaty Establishing the European Union (Treaty of
Amsterdam) Title I. article 4 ...... 1176
Convention for the Suppression of Terrorist Bombing ......1049. 1050
art. 1 ...... 610
EU-USA. Memorandum of Understanding Regarding the Applicationof Competition Laws ...... 618
European Convention on Nationality ......584
art. 3(2)...... 725
art. 18 ...... 909
art. 19 ...... 909
ILC Preliminary Conclusions on Reservations to Normative Multilateral
Treaties Including Human Rights Treaties ...... 830-1
Israel-Palestine Liberation Authority. Hebron Agreement ......222
Joint Convention on the Safety of Spent Fuel Management and on the
Safety of Radioactive Waste Management ......801. 805
Law of the Non-Navigational Uses of International Watercourses ......
792-5
art. l(2)...... 792
art. 2 ...... 791
art. 2(1) ...... 792
art. 5 ...... 102. 793
art. 6 ...... 102. 771. 793
art. 7 ...... 793
art. 8 ...... 102. 793
art. 9 ...... 793
art. 11 ...... 793
arts. 11-17...... 794
art. 12 ...... 794
art. 14 ...... 793
art. 15 ...... 793
art. 18 ...... 794
art. 19 ...... 794
art. 21(1)...... 794
art. 22 ...... 794
art. 23 ...... 794
Annex I ...... 793
Annex I11...... 793

TABLE OF TREATIES A N D AGREEMENTSCXXXVOttawa Convention on the Prohibition of the Use. Stockpiling.
Production and Transfer of Anti-Personnel Mines and on their
Destruction ...... 1068
1998
Arab Convention for the Suppression of Terrorism ......1052
Convention on Access to Information. Public Participation in
Decision-Making and Access to Justice in Environmental Matters(Aarhus) ...... 757-8
art. 1 ...... 758
art. 9 ...... 758
art. lO(2)...... 758
art. 15 ...... 758
Protocol for Registration of Releases into the Environment (2003)......
758
Geneva Agreements on Afghanistan ......922. 1111
Israel-Palestine Liberation Authority. Wye River Agreement ......222
Rotterdam Convention on the Prior Informed Consent Procedure for
Certain Hazardous Chemicals and Pesticides in International
Trade ...... 804
Statute of the International Criminal Court
art. 5 ...... 238. 596
arts. 6-8 ...... 238
art. 8 ...... 1078
art. 8(c)......1074
art. 9 ...... 238
art. 25 ...... 238
art. 27 ...... 656
art. 28 ...... 236
art. 33 ...... 237
art. 36(8)(a)(iii)......63
1999
Convention of the Organization of the Islamic Conference on
Combating International Terrorism ......1052
Convention for the Suppression of the Financing of Terrorism ......1049.
1050
European Social Charter (Revised)...... 337
ILC Draft Articles on Nationality of Natural Persons in Relation to a
Succession of Statesart. 1 ...... 909

cxxxvi

TABLE O F TREATIES A N D A GR EEM EN T S

art. 4 ...... 910
art. 5 ...... 910
art. 8 ...... 911
art. 11 ...... 910
art. 12 ...... 910
art. 13 ...... 910
art. 16 ...... 910
art. 20 ...... 910
art. 21 ...... 910
art. 22 ...... 911
art. 23 ...... 911
art. 24 ...... 911
art. 26 ...... 911
Israel-Palestine Liberation Authority, Protocol Establishing Safe-Passage
between Gaza and the West Bank ...... 222
Israel-Palestine Liberation Authority, Sharm el Sheikh
Memorandum ...... 222
Montreal Convention for the Regulation of International Carriage by Air
art. 3(2)...... 602
art. 8 ...... 611
art. 20 ...... 472
art. 21 ...... 471-2
2000
European Charter of Fundamental Rights ...... 345-6
art. 20 ...... 345
art. 21 ...... 345
art. 52(3)...... 346
ILA International Instrument on the Protection of the Environment
from Damage Caused by Space Debris (Buenos Aires) ......790-1
art. 4(e)......920
art. 8 ...... 791
2001
African Union, Constitutive Act
art. 3 ...... 1184
art. 4 ...... 1184
Protocol on Politics, Defence and Security Cooperation ...... 447
Convention on the Conservation and Management of Highly
Migratory Fish Stocks in the Western and Central Pacific Ocean ......
560

TABLE O F TREATIES A N D A GR EEM EN T S

cxxxvii

Convention on International Interests in Mobile Equipment ......467. 489
Convention on Persistent Organic Pollutants (Stockholm) ......783
Declaration on the Misuse of Civil Aircraft as Weapons of Destruction(ICAO)...... 478
ILC Draft Articles on Prevention of Transboundary Harm from
Hazardous Activities ...... 764. 765. 768-71. 777
art. 1 ...... 766. 769
art. 2 ...... 769
art. 4 ...... 770
art. 5 ...... 770
art. 6 ...... 770
art. 7 ...... 774
art. 9 ...... 770
art. 10 ...... 770-1
art. 12 ...... 770
art. 13 ...... 770
art. 14 ...... 770
art. 17 ...... 770
art. 67 ...... 770
art. 87 ...... 770
ILC Draft Articles on State Responsibility (including earlier drafts) ......
696. 700
art. 1 ...... 697
art. 2 ...... 697
art. 3 ...... 697
art. 4 ...... 701
art. 5 ...... 702
art. 6 ...... 702
art. 7 ...... 703-4
art. 8 ...... 704-5
art. 9 ...... 705
art. 10 ...... 706
art. 10 bis...... 717
art. 12 ...... 697
art. 13 ...... 697
art. 14 ...... 697
art. 15 ...... 698
art. 16 ...... 698
art. 17 ...... 698
art. 18 ...... 698. 710

cxxxviii

T A BLE O F T R EA T IES A N D A G R E E M E N T S

art . 19 ...... 721
art . 19 [I9961...... 720
art . 21 ...... 708
art . 22 ...... 708
art . 23 ...... 710
art . 23(2)...... 710
art . 24 ...... 711
art . 24(2)...... 711
art . 25 ...... 712
art . 30 ...... 714
art . 31(2)...... 718
art . 34 ...... 715-16
art . 35 ...... 716
art . 36(1)...... 717-18
art . 36(2)...... 718
art . 37 ...... 720
art . 37(3)...... 720
art . 39 ...... 716
art . 40 [I9961...... 713
art . 40(2)...... 721
art . 41 ...... 721
art . 41(3)...... 721
art . 42 ...... 713
art . 44 ...... 722, 730
art . 45 ...... 713
art . 46 ...... 713
art . 47 ...... 713
art . 48 ...... 714
art . 49 ...... 709
art . 50 ...... 709
art . 51 ...... 710
art . 52 ...... 710
art . 57 ...... 696
art . 58 ...... 696
art . 60 ...... 708
art . 70 ...... 708
OCSE Declaration and Plan o f Action o n Combating Terrorism ......1052
Treaty o f Nice ......162, 345, 1175
Enlargement Protocol ...... 1177
Yugoslav Agreement on Succession Issues ...... 892

TABLE O F TREAT I ES A N D A GR EEM EN T S

Annex A
art. 2 ...... 892
art. 3 ...... 892
art. 3(1)...... 895
art. 3(2)...... 895. 900
art. 6 ...... 893
art. 7 ...... 892
Annex Bart. 4(3)...... 892
Annex Cart. 2 ...... 904
Annex D ......900
Appendix ...... 897
2002
Charter of the Sierra Leone Special Court
art. 2(a) ...... 240
art. 2(c)......240
arts. 2-5 ...... 241
art. 3 ...... 240
art. 4 ...... 240
art. 6 ...... 240
art. 10 ...... 241
ILC Draft Articles on Diplomatic Protection
art. 1 ...... 722
art. 3 ...... 724, 726
art. 4(2) ...... 726
art. 5(1)...... 727
art. 6 ...... 727
art. 7 ...... 723
Inter-American Convention against Terrorism ...... 1052
Protocol Relating to the Establishment of the Peace and Security
Council of the African Union ......447. 931-2
art. 2 ...... 932
art. 4 ...... 932
art. 5 ...... 932
art. 6 ...... 932
art. 7 ...... 932
art. 10 ...... 932
art. 11 ...... 932

cxxxixcX~

TABLE OF TREATIES A N D AGREEMENTS

art. 12 ...... 932
arts. 13-15...... 932
art. 16 ...... 932
art. 22 ...... 931
UN-Sierra Leone (Establishment of Sierra Leone Special Court)(Security Council resolution 1315 (2000))...... 240
art. 1 ...... 240

ABBREVIATIONS

AFDI
AJIL
All ER
ALR

Annuaire
AU
Australian YIL
B&C
BCLC
BFSP
BPIL
Bull.
Burr.
BYIL
Cal
Canadian YIL
Cass. Crim.
CCC
Cd, Cmd or Cmnd
Ch.
C1. Ct.
CLJ
CLR
CMLR

Law Reports, Appeal Cases
Annual Digest and Reports of Public
International Law Cases (now International Law
Reports)
Annuaire Fran~aisde Droit International
American Journal of International Law
All England Law Reports
Argus Law Reports (1895-1959); Australian
Argus Law Reports (1960-73); Australian Law
Reports (1973- )Annuaire de 1'Institut de Droit International
African Union
Australian Yearbook of International Law
Barnewall Cresswell (English Reports)
Butterworths Company Law Cases
British and Foreign State Papers
British Practice in International Law
Bulletin
Burrow's Reports
British Year Book of International Law
California Reports
Canadian Yearbook of International Law
Cour de Cassation, France, Criminal
Canadian Criminal Cases
UK Command Papers
Law Reports, Chancery Division
US Court of Claims Reports
Cambridge Law JournalCommonwealth Law Reports
Common Market Law Reports

LIST OF ABBREVIATIONS

Co.Litt.
COMECONCr App R
CranchCrim. L. Forum
Crim. LR
C.Rob.
Dall.
Dir. Mar.
DLKDod.
DUSPILEC
ECHR
ECOSOC
ECR
ECSC
EEC
EJIL
Encyclopedia
ER
Euratom
EWCA Civ.
EWHC Admin.
Ex.D.
F.2d
Fam.
FA0
FCO
FCR
Finnish YIL
E(J.1
FLR
ESupp.
GAOR
GDR
German YIL
HC Deb.

Coke on Littleton (First Institute)Council for Mutual Economic AssistanceCriminal Appeal Reports
Cranch Reports, United States Supreme Court
Criminal Law Forum
Criminal Law Review
C. Robinson's Admiralty Reports
Dallas, Pennsylvania and United States
Reports
Diritto Marittimo, Italy
Dominion Law Reports
Dodson's Admiralty Reports
Digest of US Practice in International Law
European Communities
European Convention on Human Rights
Economic and Social Council
European Court Reports
European Coal and Steel Community
European Economic Community
European Journal of International Law
Encyclopedia of Public International Law
English Reports
European Atomic Energy Community
England and Wales, Court of Appeal, Civil
England and Wales, High Court
Law Reports, Exchequer Division
Federal Reporter (Second Series)
Law Reports, Family Division
Food and Agriculture Organisation
Foreign and Commonwealth Office
Federal Court Reports (Australia)
Finnish Yearbook of International Law
Faculty of Advocates
Family Law Reports
Federal Supplement
General Assembly Official Records
German Democratic Republic
German Yearbook of International Law
House of Commons Debates

LIST OF ABBREVIATIONSHLC
HL Deb.
HMSO
HR
HRJ
HRLJ
HRQ
ICAO
ICJ
ICLQ
ICR
ICRC
ICSID
ICTY
IJIL
ILA
ILC
ILM
ILO
ILR

Iran-US CTR
ITU
KB
L.Ed.
LL. R
LNOJ
LNTS
LQR
LR A&E
MLR
NATO
NE
Netherlands YIL

cxliiiHouse of Lords Reports (Clark)
House of Lords Debates
Her Majesty's Stationery OfficeHague Academy of International Law, Recueil
des Cours
Human Rights Journal
Human Rights Law Journal
Human Rights QuarterlyInternational Civil Aviation Organisation
International Court of JusticeInternational and Comparative Law
Quarterly
Industrial Cases Reports
International Committee of the Red Cross
International Centre for the Settlement of
Investment Disputes
International Criminal Tribunal for the Former
Yugoslavia
Indian Journal of International Law
International Law Association
International Law Commission
International Legal Materials
International Labour Organisation
International Law Reports (see also Annual
Digest and Reports of Public International Law
Cases)
Iran-United States Claims Tribunal Reports
International Telecommunications Union
Law Reports, King's Bench Division
US Supreme Court, Reports, Lawyers' Edition
Lloyd's Law Reports
League of Nations Official Journal
League of Nations Treaty Series
Law Quarterly Review
Law Reports: Admiralty and Ecclesiastical
Modern Law Review
North Atlantic Treaty Organisation
Northeastern Reporter
Netherlands Yearbook of International Law

LIST OF ABBREVIATIONS

NGO
NILR
NLM
NQHR
NY
NYS
NZLR
OAS
OAU
OECD
OECS
OR
P.
PAIGC
PASIL
PCA
PC1J
PD
Pet.
PLO
QB
RecChl

RFDA
RGDIP
RIAA

SA
SC
SCOR
SCR

Non-governmental organisation
Netherlands International Law Review
National Liberation Movement
Netherlands Quarterly of Human Rights
New York Reports
New York Supplement
New Zealand Law Reports
Organisation of American States
Organisation of African Unity
Organisation for Economic Co-operation andDevelopment
Organisation of Eastern Caribbean States
Ontario Reports
Law Reports, Probate, Divorce and Admiralty
Division, 1891Partido Africano da Independencia da Guine e
Cabo Verde
Proceedings of the American Society ofInternational Law
Permanent Court of Arbitration
Permanent Court of International Justice
Law Reports, Probate, Divorce and Admiralty
Division, 1875-90
Peter's United States Supreme Court Reports
Palestine Liberation Organisation
Law Reports, Queen's Bench Division
Recommendation of the Committee of
Ministers on the European Charter for Regionalor Minority Languages
Revue Frantaise de Droit Administratif
Revue Franqaise de Droit International Public
United Nations Reports of International
Arbitral Awards
Justiciary cases in vols. of Session Cases,
1873-98
South African Reports
Supreme Court
Security Council Official Records
Supreme Court Reports (Canada)LIST OF ABBREVIATIONS

S. Ct.
SR (NSW)
Stat.
TFSC
TRNC
UIZHL
UKMIL

UNCLOS
UNESCO
UNJYB
UNTS
US
US Av R
US and C Av R
USC
USLW
Va. JIL
Ves. Jun.
VR
Wheat
WHO
WLR
YBWA
ZaoRV

Supreme Court Reporter
New South Wales, State Reports
United States Statutes at Large'Turkish Federated State of Cyprus''Turkish Republic of Northern Cyprus'
United Kingdom, House of Lords
United Kingdom Materials in International
Law
United Nations Conference of International
Organisation
United Nations Conference on the Law of the
Sea
United Nations Educational, Scientific andCultural Organisation
United Nations Juridical Yearbook
United Nations Treaty Series
United States Reports (Supreme Court)
United States Aviation Reports
United States and Canadian Aviation Reports
United States CodeUnited States Law Weekly
Virginia Journal of International Law
Vesey Junior's Chancery Reports
Victoria Reports
Wheaton, United States Supreme Court Reports
World Health Organisation
Weekly Law Reports
Yearbook of World Affairs
Zeitschrift fiir auslandisches offentliches Recht
und Volkerrecht

The nature and development of international law

In the long march of mankind from the cave to the computer a central role
has always been played by the idea of law - the idea that order is necessary
and chaos inimical to a just and stable existence. Every society, whether
it be large or small, powerful or weak, has created for itself a frameworkof principles within which to develop. What can be done, what cannot
be done, permissible acts, forbidden acts, have all been spelt out within
the consciousness of that community. Progress, with its inexplicable leaps
and bounds, has always been based upon the group as men and women
combine to pursue commonly accepted goals, whether these be hunting
animals, growing food or simply making money.
Law is that element which binds the members of the community together in their adherence to recognised values and standards. It is both
permissive in allowing individuals to establish their own legal relations
with rights and duties, as in the creation of contracts, and coercive, as
it punishes those who infringe its regulations. Law consists of a series ofrules regulating behaviour, and reflecting, to some extent, the ideas andpreoccupations of the society within which it functions.
And so it is with what is termed international law, with the important difference that the principal subjects of international law are nationstates, not individual citizens. There are many contrasts between thelaw within a country (municipal law) and the law that operates outside and between states, international organisations and, in certain cases,
individuals.
International law itself is divided into conflict of laws (or private international law as it is sometimes called) and public international law(usually just termed international law).' The former deals with thosecases, within particular legal systems, in which foreign elements obtrude,
raising questions as to the application of foreign law or the role of foreign
This term was first used by J. Bentham: see Introduction to the Principles o f morals andLegislation, London, 1780.

2

I N T E R N A T I O N A L LAW

c o u r k 2 For example, if two Englishmen make a contract in France tosell goods situated in Paris, an English court would apply French law asregards the validity of that contract. By contrast, public international law
is not simply an adjunct of a legal order, but a separate system a l t ~ g e t h e r , ~and it is this field that will be considered in this book.
Public international law covers relations between states in all their myriad forms, from war to satellites, and regulates the operations of the many
international institutions. It maybe universal or general, in which case thestipulated rules bind all the states (or practically all depending upon thenature of the rule), or regional, whereby a group of states linked geographically or ideologically may recognise special rules applying only to them,for example, the practice of diplomatic asylum that has developed to its
greatest extent in Latin A m e r i ~ aThe
. ~ rules of international law must be
distinguished from what is called international comity, or practices such as
saluting the flags of foreign warships at sea, which are implemented solely
through courtesy and are not regarded as legally binding5 Similarly, themistake of confusing international law with international morality must
be avoided. While they may meet at certain points, the former discipline
is a legal one both as regards its content and its form, while the concept ofinternational morality is a branch of ethics. This does not mean, however,that international law can be divorced from its values.
In this chapter and the next, the characteristics of the international
legal system and the historical and theoretical background necessary to aproper appreciation of the part to be played by the law in internationallaw will be examined.

Law and politics in the world community
It is the legal quality of international law that is the first question to beposed. Each side to an international dispute will doubtless claim legal justification for its actions and within the international system there is no independent institution able to determine the issue and give a final decision.
Virtually everybody who starts reading about international law does sohaving learned or absorbed something about the principal characteristicsof ordinary or domestic law. Such identifying marks would include theexistence of a recognised body to legislate or create laws, a hierarchy of* See e.g. C. Cheshire and P. North, Private Irlterrlational Latv, 13th edn, London, 1999.
See the Serbian Loans case, PCIJ, Series A, No. 14, pp. 41-2.
See f ~ ~ r t hbelow,
erp. 87.
j North Sea Continental Shelf cases, ICJ Reports, 1969, p. 44; 41 ILR, p. 29. See also
M. Akehurst, 'Custom as a Source of International Law', 47 BYIL, 1974-5, p. 1.

DEVELOPMENT OF INTERNATIONAL LAW

3

courts with compulsory jurisdiction to settle disputes over such laws andan accepted system of enforcing those laws. Without a legislature, judiciaryand executive, it would seem that one cannot talk about a legal order.6
And international law does not fit this model. International law has nolegislature. The General Assembly of the United Nations comprising delegates from all the member states exists, but its resolutions are not legallybinding save for certain of the organs of the United Nations for certain purpose^.^ There is no system of courts. The International Court ofJustice does exist at The Hague but it can only decide cases when both sides
agree8 and it cannot ensure that its decisions are complied with. Above
all there is no executive or governing entity. The Security Council of theUnited Nations, which was intended to have such a role in a sense, has attimes been effectively constrained by the veto power of the five permanent
members (USA; USSR, now the Russian Federation; China; France; andthe United ~ i n g d o m )Thus,. ~ if there is no identifiable institution either
to establish rules, or to clarify them or see that those who break them arepunished, how can what is called international law be law?
It will, of course, be realised that the basis for this line of argument is thecomparison of domestic law with international law, and the assumption ofan analogy between the national system and the international order. And
this is at the heart of all discussions about the nature of international law.
At the turn of the nineteenth century, the English philosopher John
Austin elaborated a theory of law based upon the notion of a sovereignissuing a command backed by a sanction or punishment. Since international law did not fit within that definition it was relegated to the categoryof 'positive rn~rality'.'~This concept has been criticised for oversimplifying and even confusing the true nature of law within a society and foroveremphasising the role of the sanction within the system by linking it
to every rule." This is not the place for a comprehensive summary ofAustin's theory but the idea of coercion as an integral part of any legal
order is avital one that needs looking at in the context of international law.
See generally, R. Dias, Jurisprudence,5th edn, London, 1985, andH. L. A. Hart, The Conceptof Latv, Oxford, 1961.
/ See article 17(1) of the United Nations Charter. See also D. rohnson, 'The Effect of Resolutions of the General Assembly of the United Nations: 32 BYIL, 1955-6, p. 97 and below,
chapter 22.
See article 36 of the Statute of the International Court of Justice and below, chapter 19.
See e.g. Bowetti Law of Irlterrlational Institt~tions(eds. P.Sands and P.Klein), 5th edn,
London, 2001, and below, chapter 23.
l o See J. A ~ ~ s t iThen , Province ofJtlrisprudence Deterrrlined (ed. H. L. A. Hart), London, 1954,
pp. 134-42.
l 1 See e.g. Hart, Corlcept o f l a w , chapter 10.

'

4

I N T E R N A T I O N A L LAW

The role of force
There is no unified system of sanctions12 in international law in the sensethat there is in municipal law, but there are circumstances in which theuse of force is regarded as justified and legal. Within the United Nations
system, sanctions maybe imposed by the Security Council upon the determination of a threat to the peace, breach of the peace or act of aggression.13
Such sanctions may be economic, for example those proclaimed in 1966
against ~hodesia,l%rmilitary as in the Korean war in 19.50," or indeed
both, as in 1990 against 1raq.16
Coercive action within the framework of the UN is rare because
it requires co-ordination amongst the five permanent members of the
Security Council and this obviously needs an issue not regarded by anyof the great powers as a threat to their vital interests.
Korea was an exception and joint action could only be undertaken
because of the fortuitous absence of the USSR from the Council as aprotest at the seating of the Nationalist Chinese representatives."
Apart from such institutional sanctions, one inay note the bundle ofrights to take violent action known as self-help.I8 This procedure to resort
to force to defend certain rights is characteristic of primitive systems oflaw with blood-feuds, but in the domestic legal order such procedures andmethods are now within the exclusive control of the established authority.
States may use force in self-defence, if the object of aggression, and may
take action in response to the illegal acts of other states. In such cases theSee e.g. W. M. Reisman, 'Sanctions and Enforcement' in The Future ofthe Interniztional
Legal Order (eds. C. Black and R. A. Falk), New York, 1971, p. 273; 1. Brierly, 'Sanctions',
17 Transactions of tlie Groti~sSociety, 1932, p. 68; Hart, Concept of Law, pp. 211-21;
A. D'Amato, 'The Neo-Positivist Concept of International Law', 59 AJIL, 1965, p. 321;
G. Fitzmaurice, 'The Foundations of the Authority of International Law and the Problem
of Enforcement', 19 MLR, 1956, p. 1, and The Effectiveness o f International Decisions (ed.
S. Schwebel), Leiden, 1971.
" Chapter VII of the United Nations Charter. See below, chapter 22.
l 4 Security Council resolution 221 (1966). Note also Security Council resolution 418 (1977)
imposing a mandatory arms embargo on South Africa.
e 7 J~lly
1950. See D. W. Bowett, United
Security Council resolutions of25 June, 27 J ~ m andNations Forces, London, 1964.
l6 Security Council resolutions 661 and 678 (1990). See The Kuwait Crisis: Basic Documents(eds. E. Lauterpacht, C. Greenwood, M. Weller and D. Bethlehem), Cambridge, 1991, pp.
88 and 98. See also below, chapter 22.
l 7 See E. Luard, A History of the United Nations, vol. I, The Years of Western Dornination
1945-55, London, 1982, pp. 229-74, and below, chapter 22.
l8 See D. W. Bowett, Self-Defence in International Law, Manchester, 1958, and I. Brownlie,
International Law and the Use of Force by States, Oxford, 1963.

DEVELOPMENT OF INTERNATIONAL LAW

5states themselves decide whether to take action and, if so, the extent of
their measures, and there is no supreme body to rule on their legality orotherwise, in the absence of an examination by the International Courtof Justice, acceptable to both parties, although illterllational law does lay
down relevant rules.'Accordingly those writers who put the element of force to the forefrontof their theories face many difficulties in describing the nature, or rather
the legal nature of international law, with its lack of a coherent, recognised and comprehensive framework of sanctions. To see the sanctionsof international law in the states' rights of self-defence and reprisals2' isto misunderstand the role of sanctions within a system because they areat the disposal of the states, not the system itself. Neither must it be forgotten that the current trend in international law is to restrict the use offorce as far as possible, thus leading to the absurd result that the moreforce is controlled in international society, the less legal international law
becomes.
Since one cannot discover the nature of international law by reference
to a definition of law predicated upon sanctions, the character of theinternational legal order has to be examined in order to seek to discoverwhether in fact states feel obliged to obey the rules of international law
and, if so, why. If, indeed, the answer to the first question is negative,that states do not feel the necessity to act in accordance with such rules,
then there does not exist any system of international law worthy of thename.
The international system2'
The key to the search lies within the unique attributes of the international
system in the sense of the network of relationships existing primarily,
if not exclusively, between states recognising certain common principles
l9'O

See below, chapter 19. See also M. Barkin, Law Without Sanctions, New Haven, 1967.
See e.g. H. Kelsen, General Theory of Law and State, London, 1946, pp. 328 ff.
See L. Henkin, How Nations Behave, 2nd edn, New York, 1979, and Henkin, International
Law: Politics artd Values, Dordrecht, 1995; M. A. Kaplan and N. Katzenbach, The Political
Foundations of International Law, New York, 1961; C. Mr.renks, The Cornmoll Law o f
Mankirtd, London, 1958; W. Friedmann, The Changirtg Structure of International Latv,
New York, 1964; A. Sheikh, International Laiv artd Natior~alBehaviour, New York, 1974;
0 . Schachter, International Latv in Theory and Practice, Dordrecht, 1991; T. M. Franck,
The Power o f Legitimacy Among Nations, Oxford, 1990; R. Higgins, Problems and Process,Oxford, 1994, and Oppenheirn'.c International Law (eds. R. Y. Jennings and A. D. llktts),
9th edn, London, 1992, vol. I, chapter 1.

6

I N T E R N A T I O N A L LAW

and ways of doing things.22 While the legal structure within all but themost primitive societies is hierarchical and authority is vertical, the international system is horizontal, consisting of over 190 independent states,
all equal in legal theory (in that they all possess the characteristics ofsovereignty) and recognising no one in authority over them. The law is
above individuals in domestic systems, but international law only exists
as between the states. Individuals only have the choice as to whether toobey the law or not. They do not create the law. That is done by specificinstitutions. In international law, on the other hand, it is the states themselves that create the law and obey or disobey it.23This, of course, has
profound repercussions as regards the sources of law as well as the meansfor enforcing accepted legal rules.
International law, as will be shown in succeeding chapters, is primarily
formulated by international agreements, which create rules binding up on
the signatories, and customary rules, which are basically state practices
recognised by the community at large as laying down patterns of conductthat have to be complied with.
However, it may be argued that since states themselves sign treaties andengage in action that they may or may not regard as legally obligatory,
international law would appear to consist of a series of rules from whichstates may pick and choose. Contrary to popular belief, states do observe
international law, and violations are comparatively rare. However, such
violations (like armed attacks and racial oppression) are well publicisedand strike at the heart of the system, the creation and preservation ofinternational peace and justice. But just as incidents of murder, robberyand rape do occur within national legal orders without destroying thesystem as such, so analogously assaults upon international legal rules
point up the weaknesses of the system without denigrating their validity
or their necessity. Thus, despite the occasional gross violation, the vast
majority of the provisions of international law are f ~ l l o w e d . ' ~-- As to the concept of 'international community', see e.g. G. Abi-Saab, 'Whither the77

International Community?', 9 EJIL, 1998, 17. 248, and B. Simma and A. L. Paulus, 'The
"International Community": Facing the Challenge of Globalisation', 9 EJIL, 1998, p. 266.
See also P. Weil, 'Le Droit International en Qui.te de son Identite: 237 HR, 1992 VI,
p. 25.
2' This leads Rosenne to refer to international law as a law of co-ordination, rather than, as ininternal law, a law of subordination, Practice and Mcthodx ofInternationa1Law, Dordrecht,
1984, p. 2.
24 See H. Morgenthau, Politics ArnongNations, 5th edn, New York, 1973, pp. 290-1; Heilkin,
HOWNations Behave, pp. 46-9; 1. Brierly, The Outlook for International Law, Oxford, 1944,
p. 5, and P. Tessup, A Modern Law of Nations, New York, 1948, pp. 6-8.

DEVELOPMENT OF INTERNATIONAL LAW

7

In the daily routine of international life, large numbers of agreements
and customs are complied with. However, the need is felt in the hectic
interplay of world affairs for some kind of regulatory framework or rules
network within which the game can be played, and international law fulfils
that requirement. States feel this necessity because it imports an elementof stability and predictability into the situation.
Where countries are involved in a disagreement or a dispute, it is handy
to have recourse to the rules of international law even if there are conflicting interpretations since at least there is a common frame of reference andone state will be aware of how the other state will develop its argument.
They will both be talking a common language and this factor of communication is vital since misunderstandings occur so easily and often withtragic consequences. Where the antagonists dispute the understanding ofa particular rule and adopt opposing stands as regards its implementation, they are at least on the same wavelength and communicate by meansof the same phrases. That is something. It is not everything, for it is a
mistake as well as inaccurate to claim for international law more than it
can possibly deliver. It can constitute a mutually understandable vocabulary book and suggest possible solutions which follow from a study ofits principles. What it cannot do is solve every problem no matter how
dangerous or complex merely by being there. International law has not
yet been developed, if it ever will, to that particular stage and one should
not exaggerate its capabilities while pointing to its positive features.
But what is to stop a state from simply ignoring international law whenproceeding upon its chosen policy? Can a legal rule against aggression,for example, of itself prevail over political temptations? There is no international police force to prevent such an action, but there are a series ofother considerations closely bound up with the character of internationallaw which might well cause a potential aggressor to forbear.
There is the element of reciprocity at work and a powerful weapon it
can be. States quite often do not pursue one particular course of action
which might bring them short-term gains, because it could disrupt themesh of reciprocal tolerance which could very well bring long-term disadvantages. For example, states everywhere protect the immunity of foreign
diplomats for not to do so would place their own officials abroad at risk.25
This constitutes an inducement to states to act reasonably and moderater
25 See Case Concerning L nited States Diplomatic and Consular Staff in Teheran, ICT Reports,

1980, p. 3; 61 ILR, p. 502. See also the US Supreme Court decision in Boo5 v. Burr)) 99
L. Ed. 2d 333,345-6 (1988); 121 ILR, p. 499.

8

I N T E R N A T I O N A L LAW

demands in the expectation that this will similarly encourage other statesto act reasonably and so avoid confrontations. Because the rules can ultimately be changed by states altering their patterns of behaviour andcausing one custom to supersede another, or by mutual agreement, a certain definite reference to political life is retained. But the point must be
made that a state, after weighing up all possible alternatives, might very
well feel that the only method to protect its vital interests would involvea violation of international law a i d that responsibility would just have tobe taken. Where survival is involved international law may take second
place.
Another significant factor is the advantages, or 'rewards', that may occur
in certain situations from an observance of international law. It may encourage friendly or neutral states to side with one country involved in a
conflict rather than its opponent, and even take a more active role thanmight otherwise have been the case. In many ways, it is an appeal to public
opinion for support and all states employ this tactic.
In many ways, it reflects the esteem in which law is held. The Soviet
Union made cdnsiderable use of legal arguments in its effort to establish
its non-liability to contribute towards the peacekeeping operations of
the United ~ a t i o n s and, ~ ~the Americans too, justified their activities
with regard to ~ u b anda ~~ i~e t n a m " by reference to international law.
In some cases it may work and bring considerable support in its wake, inmany cases it will not, but in any event the very fact that all states do it isa constructive sign.
A further element worth mentioning in this context is the constant formulation of international business in characteristically legal terms. Pointsof view and disputes, in particular, are framed legally with references toprecedent, international agreements and even the opinions of juristic
authors. Claims are pursued with regard to the rules of international law
and not in terms of, for example, morality or ethics.29This has brought
into being a class of officials throughout governmental departments, in
26 See Certain Expenses of the United Nations, ICJ Reports, 1962, p. 151; 34 ILR, p. 281, and

R. Higgins, United Nations Peace-Keeping Docunlents and Comnlentary, Oxford, 4 vols.,
1969-81.
See e.g. A. Chayes, The Cllban L\lissile Crisis, Oxford, 1974, and Henkin, How Nations
Behave, pp. 279-302.
See e.g. The Vietnam lVur and International Latv (ed. R. A. Falk), Princeton, 4 vols., 196876; J. N. Moore, Law and the Indo-China Iliar, Charlottesville, 1972, and Henkin, Howhrutions Behave, pp. 303-12.
"'eeHart, Concept of Law, p. 223.

''

DEVELOPMENT OF INTERNATIONAL LAW

9addition to those working in international institutions, versed in international law and carrying on the everyday functions of government ina law-oriented way. Many writers have, in fact, emphasised the role ofofficials in the actual functioning of law and the influence they have upon
the legal process.30
Having come to the conclusion that states do observe internationallaw and will usually only violate it on an issue regarded as vital to theirinterests, the question arises as to the basis of this sense of ~bligation.~'
The nineteenth century, with its business-oriented philosophy, stressed
the importance of the contract, as the legal basis of an agreement freely
entered into by both (or all) sides, and this influenced the theory of consent in international law.32States were independent, and free agents, andaccordingly they could only be bound with their own consent. There wasno authority in existence able theoretically or practically to impose rules
upon the various nation-states. This approach found its extreme expression in the theory of auto-limitation, or self-limitation, which declaredthat states could only be obliged to comply with international legal rules
if they had first agreed to be so obliged.33
Nevertheless, this theory is most unsatisfactory as an account of why
international law is regarded as binding or even as an explanation of theinternational legal system.34 To give one example, there are about 100
states that have come into existence since the end of the Second World
War and by no stretch of the imagination can it be said that such states
have consented to all the rules of international law formed prior to theirestablishment. It could be argued that by 'accepting independence', statesconsent to all existing rules, but to take this view relegates consent to therole of a mere fiction."
See e.g. M. S. McDougal, H. Lasswell and I\! M. lleisman, 'The \\'orld Constitutive Processof Authoritative Decision' in International Luiv Essays (eds. M . S. McDougal and I\: M.
Reisman), New York, 1981, p. 191.
See e.g. J. Brierly, Tlze Basis ofobligation in International Latv, Oxford, 1958.
See Mr.Friedmann, Legal Theory, 5th edn, London, 1967, pp. 573-6. See also the Lotus
case, PCIJ, Series A, No. 10, p. 18.
33 E.g. G. lellinek, Allgenleine Rechtslehre, Berlin, 1905.
"'eealso Hart, Concept of Laiv, pp. 219-20. But see P. \Veil, 'Towards Relative Normativity
77AJIL,1983, p. 413 and responses thereto, e.g. R. A. Falk, ' T o l a a t
in InternationalLa~v?',
Extent are International La~vand International Lawyers Ideologically Neutral?' in Change
Law-Making (eds. A. Cassese and J. nreiler), 1989, p. 137,
and Stability in Ii~teri~utionaland A. Pellet, 'The Normative Dilemma: Will and Consent in International Law-Making',
12 Australian YIL, 1992, p. 22.
" See further below, p. 86.
'O

''
''

10

I N T E R N A T I O N A L LAW

This theory also fails as an adequate explanation of the international
legal system, because it does not take into account the tremendous growth
in international institutions and the network of rules and regulations thathave emerged from them within the last generation.
To accept consent as the basis for obligation in international law36begs
the question as to what happens when consent is withdrawn. The state's
reversal of its agreement to a rule does not render that rule optional orremove from it its aura of legality. It merely places that state in breach of
its obligations under international law if that state proceeds to act uponits decision. Indeed, the principle that agreements are binding (pacta suntserva~zda)upon which all treaty law must be based cannot itself be based
upon consent.37
One current approach to this problem is to refer to the doctrine of conensu us.^' This reflects the influence of the majority in creating new norms
of international law and the acceptance by other states of such new rules.
It attempts to put into focus the change of emphasis that is beginning totake place from exclusive concentration upon the nation-state to a consideration of the developing forms of international co-operation wheresuch concepts as consent and sanction are inadequate to explain what ishappening.
Of course, one cannot ignore the role of consent in international law.
To recognise its limitations is not to neglect its significance. Much ofinternational law is constituted by states expressly agreeing to specificnormative standards, most obviously by entering into treaties. This cannot be minimised. Nevertheless, it is preferable to consider consent asimportant not only with regard to specific rules specifically accepted(which is not the sum total of international law, of course) but in thelight of the approach of states generally to the totality of rules, understandings, patterns of behaviour and structures underpinning and constituting the international system.39 In a broad sense, states accept orconsent to the general system of international law, for in reality withoutthat no such system could possibly operate. It is this approach which may
See e.g. J. S. Watson, 'State Consent and the Sources of International Obligation', PASIL,
1992, p. 108.
" See below, chapter 3.
" See e.g. A. D'Amato, 'On Consensus', 8 Canadian YIL, 1970, p. 104. Note also the'gentleman's agreement o n consensus' in the Third UN Conference o n the Law of the
Sea: see L. Sohn, 'Voting Procedures in United Nations Conferences for the Codificationof International Law', 69 AJIL, 1975, p. 318, and UN Doc. AlConf.621WP.2.
"'eee.g. J. Charney, 'Universal International Law', 87 ATIL, 1993, p. 529.

DEVELOPMENT OF INTERNATIONAL LAW

11

be characterised as consensus or the essential framework within which
the demand for individual state consent is transmuted into community
acceptance.
It is important to note that while states from time to time object toparticular rules of international law and seek to change them, no state
has sought to maintain that it is free to object to the system as a whole.
Each individual state, of course, has the right to seek to influence byword or deed the development of specific rules of international law, but
the creation of new customary rules is not dependent upon the express
consent of each particular state.

The function of politics
It is clear that there can never be a complete separation between law andpolicy. No matter what theory of law or political philosophy is professed,
the inextricable bonds linking law and politics must be recognised.
Within developed societies a distinction is made between the formulation of policy and the method of its enforcement. In the United Kingdom,
Parliament legislates while the courts adjudicate and a similar division is
maintained in the United States between the Congress and the courts system. The purpose ofsuch divisions, of course, is to prevent a concentrationof too much power within one branch of government. Nevertheless, it is
the political branch which makes laws and in the first place creates thelegal system. Even within the hierarchy of courts, the judges have leeway
in interpreting the law and in the last resort make decisions from amongst
a number of alternatives." This position, however, should not be exaggerated because a number of factors operate to conceal and lessen theimpact of politics upon the legal process. Foremost amongst these is thepsychological element of tradition and the development of the so-called'law-habit'.4' A particular legal atmosphere has been created, which is buttressed by the political system and recognises the independent existence of
law institutions and methods of operation characterised as 'just' or 'legal'.
In most countries overt interference with the juridical process would be
regarded as an attack upon basic principles and hotly contested. The
use of legal language and accepted procedures together with the prideof the legal profession reinforce the system and emphasise the degree
40 See e.g. R. Dworkin, TakingRights Seriously, London, 1977.

" See e.g. K. Lleu~ellyn,The Cornrnon Law Tradition, Boston, 1960, and generally D. Lloyd,
Introduction to Jt~risprudence,4th edn, London, 1979.

12

I N T E R N A T I O N A L LAW

of distance maintained between the legislative-executive organs and the
judicial s t r u ~ t u r e . ~ ~However, when one looks at the international legal scene the situation
changes. The arbiters of the world order are, in the last resort, the states
and they both make the rules (ignoring for the moment the secondary, if
growing, field of international organisations) and interpret and enforce
them.
While it is possible to discern an 'international legal habit' amongst
governmental and international officials, the machinery necessary to enshrine this does not exist.
Politics is much closer to the heart of the system than is perceived
within national legal orders, and power much more in evidence.43The
interplay of law and politics in world affairs is much more complex anddifficult to unravel, and signals a return to the earlier discussion as to why
states comply with international rules. Power politics stresses competition, conflict and supremacy and adopts as its core the struggle for survival
and infl~ence.~"nternational law aims for harmony and the regulationof disputes. It attempts to create a framework, no matter how rudimentary, which can act as a kind of shock-absorber clarifying and moderatingclaims and endeavouring to balance interests. In addition, it sets out aseries of principles declaring how states should behave. Just as any domestic community must have a background of ideas and hopes to aim at,even if few can be or are ever attained, so the international community,
too, must bear in mind its ultimate values.
However, these ultimate values are in a formal sense kept at arm's lengthfrom the legal process. As the International Court noted in the South- West
Africu case,45'It is a court of law, and can take account of moral principles
only in so far as these are given a sufficient expression in legal form. Law
exists, it is said, to serve a social need; but precisely for that reason it can
do so only through and within the limits of its own discipline. Otherwise,
it is not a legal service that would be rendered.'46
International law cannot be a source of instant solutions to problemsof conflict and confrontation because of its own inherent weaknesses'' See P. Stein and J. Shand, Legal Values irz Western Society, Edinburgh, 1974.
43 See generally Henkin, Ho1.l~Nations Behave, and Schachter, Irlternational Latv, pp. 5-9.

" See G. Schwarzenberger,

Power Politics, 3rd edn, London, 1964, and Schwarzenberger,
International Law, 3rd edn, London, 1957, vol. I, Morgenthau, Politics Among Nations.
4' ICJ Reports, 1966, pp. 6, 34.
But see Higgins' criticism that such a formulatioil may be question-begging with regard
to the identity of such 'limits of its own discipline', Problems, p. 5.

"

DEVELOPMENT OF INTERNATIONAL LAW

I3

in structure and content. To fail to recognise this encourages a utopian
approach which, when faced with reality, willOn the other hand, thecynical attitude with its obsession with brute power is equally inaccurate,
if more depressing.
It is the medium road, recognising the strength and weakness of international law and pointing out what it can achieve and what it cannot,
which offers the best hope. Man seeks order, welfare and justice not only
within the state in which he lives, but also within the international system
in which he lives.
Historical d e v e l ~ p r n e n t ~ ~The foundations of international law (or the law of nations) as it is understood today lie firmly in the development of Western culture and politicalorganisation.
The growth of European notions of sovereignty and the independent
nation-state required an acceptable method whereby inter-state relations
could be conducted in accordance with commonly accepted standards of
behaviour, and international law filled the gap. But although the law ofnations took root and flowered with the sophistication of RenaissanceNote, of course, the important distiilctioil between the existence of an obligation underinternational law and the question of the enforcement of that obligation. Problems withregard to enforcing a duty cannot affect the legal validity of that duty: see e.g. Judge
Weeramantry's Separate Opinion in the Order of 13 September 1993, in the Bosnia case,
ICJ Reports, 1993, pp. 325,374; 95 ILR, pp. 43,92.
48 See in particular A. Nussbaum, A Concise History of the Laiv ofNations, rev, edn, New'lork,
1954; Encyclopedia of Public International Law (ed. R. Bernhardt), Amsterdam, 1984, vol.
VII, pp. 127-273; J. It'. Verzijl, International Laiv in Historical Perspective, Leiden, 10
vols., 1968-79, and hl. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall o f
International Laiv, 1870-1960, Cambridge, 2001. See also W Grewe, The Epochs of International Law, (trans. and rev. M. Byers), New York, 2000; A. Cassese, International Law
in a Divided World, Oxford, 1986, and Cassese, Interrlational Law, Oxford, 2001, p. 19;
Nguyen Quoc Dinh, P. Daillier and A. Pellet, Droit International Public, 7th edn, Paris,
2002, 17. 41; H. Thierry, 'L'Evolution du Droit International: 222 HR, 1990 111, p. 9; P.
Guggenheim, 'Contribution a 1'Histoire des Sources du Droit des Gens', 94 HR, 1958
11, p. 5; A. Truyol y Serra, Histoire de Droit Irlterrlational Public, Paris, 1995; D. Korff,'Introduction a 1'Histoire de Droit International Public', 1 HR, 1923 I, p. 1; P. Le Fur,'Le Developpement Historique de Droit International: 41 HR, 1932 111, 17. 501, and0.Yasuaki, 'IVhen was the Law of International Society Born? An Inquiry of the History of International Law from an Intercirilisational Perpective: 2 Journal of the Historyof International Law, 2000, p. 1. For a general bibliography, see P. Macalister-Smith and
J. Schwietzke, 'Literature and Documentary Sources relating to the History ofInternationa1
Law: 1 Journal of the History of International Laiv, 1999, p. 136.
47

14

I N T E R N A T I O N A L LAW

Europe, the seeds of this particular hybrid plant are of far older lineage.
They reach far back into history.

Early origins
While the modern international system can be traced back some 400 years,
certain of the basic concepts of international law can be discerned in political relationships thousands ofyears ago.49 round 2100 BC, for instance,a solemn treaty was signed between the rulers of Lagash and Umma, thecity-states situated in the area known to historians as Mesopotamia. It
was inscribed on a stone block and concerned the establishment of a defined boundary to be respected by both sides under pain of alienating a
number of Sumerian gods.50The next major instance known of an important, binding, international treaty is that concluded over 1,000 years
later between Rameses I1 of Egypt and the king of the Hittites for theestablishment of eternal peace and brotherhood." Other points coveredin that agreement signed, it would seem, at Kadesh, north of Damascus,
included respect for each other's territorial integrity, the termination of astate of aggression and the setting up of a form of defensive alliance.
Since that date many agreements between the rival Middle Eastern
powers were concluded, usually aimed at embodying in a ritual form astate of subservience between the parties or attempting to create a politicalalliance to contain the influence of an over-powerful empire.j2
The role of ancient Israel must also be noted. A universal ethical stancecoupled with rules relating to warfare were handed down to other peoples
and religions and the demand for justice and a fair system of law founded
upon strict morality permeated the thought and conduct of subsequent generation^.^^ For example, the Prophet Isaiah declared that sworn'' See D. J. Bederman, International Law in Antiquity, Cambridge, 2001.
" Nussbaum, Law of Aiations, pp. 1-2. Note the discovery in the excavated city of Ebla, thecapital of a civilisation at least 4,500 years old, of a copy of a political treaty between Ebla
19 May 1995, 17. 20. Seeand the city of Abarsal: see Tirrles Higher Education St~pplerr~ent,
also R. Cohen, O n Diplomacy in the Ancient Near East: The dmarna Letters, Discussion
Paper of the Centre for the Study of Diplomacy, University of Leicester, 1995.
N~lssbaum,Law ofNations, pp. 1-2.
j2 Preiser emphasises that the era between the seventeenth and fifteenth centuries BC
witnessed something of a competing state system involving five independent (at various
times) states: Encyclopedia of P~lblicInternational Latu, vol. VII, pp. 133-4.
See P. \Veil, 'Le J~tdaismeet le Developpernent du Droit International: 151 HR, 1976, p. 253,
and S. Rosenne, 'The Illfluence of Judaism on International Law: Neder1and.c Tijdschrift
voor Internationaal Recht, 1958, p. 119.

""

DEVELOPMENT OF INTERNATIONAL LAW

15agreements, even where made with the enemy, must be p e r f ~ r m e dPeace.~~and social justice were the keys to man's existence, not power.
After much neglect, there is now more consideration of the cultures andstandards that evolved, before the birth of Christ, in the Far East, in the
1ndian5' and ~ h i n e s civilisations.
e~~Many of the Hindu rules displayed agrowing sense of morality and generosity and the Chinese Empire devoted
much thought to harmonious relations between its constituent parts. Regulations controlling violence and the behaviour of varying factions withregard to innocent civilians were introduced and ethical values instilledin the education of the ruling classes. In times of Chinese dominance, aregional tributary-states system operated which fragmented somewhat intimes of weakness, but this remained culturally alive for many centuries.
However, the predominant approach of ancient civilisations was geographically and culturally restricted. There was no conception of an international community of states co-existing within a defined framework.
The scope for any 'international law' of states was extremely limited andall that one can point to is the existence of certain ideals, such as the sanctity of treaties, which have continued to this day as important elements insociety. But the notion of a universal community with its ideal of worldorder was not in evidence.
The era of classical Greece, from about the sixth century BC and onwards for a couple of hundred years, has, one must note, been of overwhelming significance for European thought. Its critical and rational turnof mind, its constant questioning and analysis of man and nature and its
See Nussbaun~,Law ofNations, p. 3.
Ibid. See also C. H. Alexandrowicz, Au Introduction to the History of the Law of Natious
in the East Indies, Leiden, 1967, and Alexandrowicz, 'The Afro-Asian MTorld and the Law
of Nations (Historical Aspects): 123 HR, 1967, p. 117; L. Chatteriee, hlternational Law
arid Inter-State Relations in Ancient India, 1958; Nagendra Singh, 'The Distinguishing
Characteristics of the Concept of the Law of Nations as it Developed in Ancient India',
Liber Amicoruni for Lord fi7ilbe?force (eds. A. Bos and I. Brownlie), Oxford, 1987, p. 91;
Nagendra Singh, bldia and International Law, New Delhi, 1969, and P. Bandyopadhyay,
International Law and Custoni in Ancient Iridia, 1982.
' 6 N~lssbaum,
La~vofiVations,p. 4, andLiuTchoanPas, LeDroitdes Gensetde la CkilleAlltique,
Paris, 2 vols., 1926. See also P. Gong, Tlie Standard o f 'Civilisation' iri International Society,
1984, pp. 130-63; pp. 164-200 with regard to rapan; pp. 201-37 with regard to Siam;
I. C. Y. Hsu, China's Entrance into the Family ofNations, Harvard, 1960, and K. Iriye, 'The
Principles of International Law in the Light of Confucian Doctrine', 120 HR, 1967, p. 1.See
also C. F. Amerasinghe, 'South Asian Antecedents of International Law' in International
Laiv - Theory and Practice (ed. K. Welleils), The Hague, 1998, p. 3, and E. Y.-J. Lee, 'Early
Development of Modern Iilternational Law in East Asia-115th Special Reference to China,
Japan and Korea', 4 Journal of the History of International Law, 2002, p. 42.
'4

5'

16

I N T E R N A T I O N A L LAW

love of argument and debate were spread throughout Europe and theMediterranean world by the Roman Empire which adopted Hellenic culture wholesale, and penetrated Western consciousness with the Renaissance. However, Greek awareness was limited to their own competitive
city-states and colonies. Those of different origin were barbarians notdeemed worthy of association.
The value of Greece in a study of international law lies partly in thephilosophical, scientific and political analyses bequeathed to mankind
and partly in the fascinating state of inter-relationship built up within
the Hellenistic world.57Numerous treaties linked the city-states together
in a network of commercial and political associations. Rights were often
granted to the citizens of the states in each other's territories and rules
regarding the sanctity and protection of diplomatic envoys developed.
Certain practices were essential before the declaration of war, and thehorrors of war were somewhat ameliorated by the exercise, for example,of religious customs regarding sanctuaries. But no overall moral approachsimilar to those emerging from Jewish and Hindu thought, particularly,
evolved. No sense of a world community can be traced to Greek ideology
in spite of the growth of Greek colonies throughout the Mediterraneanarea. This was left to the able administrators of the Roman ~ m p i r e . ' ~The Romans had a profound respect for organisation and the law.59
The law knitted together their empire and constituted a vital source ofreference for every inhabitant of the far-flung domain. The early Romanlaw (the jus civile) applied only to Roman citizens. It was formalistic andhard and reflected the status of a small, unsophisticated society rooted in
the soil.
It was totally unable to provide a relevant background for an expanding,developing nation. This need was served by the creation and progressive
augmentation of the jusgentium. This provided simplified rules to govern
the relations between foreigners, and between foreigners and citizens. The
instrument through which this particular system evolved was the official
known as the Praetor Peregrinus, whose function it was to oversee all legal
relationships, including bureaucratic and commercial matters, within theempire.
" Nussbaum, Law of Nations, pp. 5-9. See also G. Tenekides, 'Droit International et Com-munautes Federales dans la Grece des Cites', 90 HR, 1956, p. 469, and Er~cyclopediaof
Public International Law, vol. VII, p p 154-6.
" Encyclopedia, pp. 136-9, and Nussbaum, Law ofNations, pp. 10-16.
j9 See e.g. A. Jolowicz, Hixtorical Introduction to Rornan Latu, 3rd edn, London, 1972. See
also A. T\'atson, International Law in Archaic Rome, Baltimore, 1993.

DEVELOPMENT OF INTERNATIONAL LAW

I7

The progressive rules of the jus gentium gradually overrode the narrowjus civile until the latter system ceased to exist. Thus, the jus gentium
became the common law of the Roman Empire and was deemed to be ofuniversal application.
It is this all-embracing factor which so strongly distinguishes the
Roman from the Greek experience, although, of course, there was noquestion of the acceptance of other nations on a basis of equality and thejus gentium remained a 'national law' for the Roman Empire.
One of the most influential of Greek concepts taken up by the Romans
was the idea of Natural ~ a w . This~ ' was formulated by the Stoic philosophers of the third century BC and their theory was that it constituted abody of rules of universal relevance. Such rules were rational and logical,
and because the ideas and precepts of the 'law of nature' were rooted inhuman intelligence, it followed that such rules could not be restricted to
any nation or any group but were of worldwide relevance. This elementof universality is basic to modern doctrines of international law and the
Stoic elevation of human powers of logical deduction to the supreme pinnacle of 'discovering' the law foreshadows the rational philosophies of theWest. In addition to being a fundamental concept in legal theory, Natural
Law is vital to an understanding of international law, as well as being an
indispensible precursor to contemporary concern with human rights.
Certain Roman philosophers incorporated those Greek ideas ofNatural
Law into their own legal theories, often as a kind of ultimate justificationof the jus gentium, which was deemed to enshrine rational principles
common to all civilised nations.
However, the law of nature was held to have an existence over and abovethat of the jusgentium. This led to much confusion over the exact relationship between the two ideas and different Roman lawyers came to different
conclusions as to their identity and characteristics. The important factors
though that need to be noted are the theories of the universality of law
and the rational origins of legal rules that were founded, theoretically atleast, not on superior force but on superior reason.
The classical rules of Roman law were collated in the Corpus Juris Civilis,
a compilation of legal material by a series of Byzantine philosophers completed in AD 534.61 Such a collection was to be invaluable when the
60 See e.g. Lloyd, Introduction to Jurisprudence, pp. 79-169.

generally with regard to Byrantium, M. De Taube, 'L'Apport de Byzance au
Developpement du Droit International Occidental: 67 HR, 1939, p. 233, and S. Verosta,'International Law in Europe and Western Asia between 100-650 AD: 113 HR, 1964,
p. 489.

61 See

18

I N T E R N A T I O N A L LAW

darkness of the early Middle Ages, following the Roman collapse, began
gradually to evaporate. For here was a body of developed laws ready madeand awaiting transference to an awakening Europe.
At this stage reference must be made to the growth of slam.^^ Its approach to international relations and law was predicated upon a stateof hostility towards the non-Moslem world and the concept of unity,
Dar al-Islam, as between Moslem countries. Generally speaking, humanerules of warfare were developed and the 'peoples of the book' (Jews andChristians) were treated better than non-believers, although in an inferior
position to Moslems. Once the period of conquest was over and power was
consolidated, norms governing conduct with non-Moslem states began
to develop. The law dealing with diplomats was founded upon notions of
hospitality and safety (aman), while rules governing international agreements grew out of the concept of respecting promises made."
The Middle Ages and the Renaissance
The Middle Ages were characterised by the authority of the organised
Church and the comprehensive structure of power that it ~ o m m a n d e d . ~ ~All Europe was of one religion, and the ecclesiastical law applied to all,notwithstanding tribal or regional affiliations. For much of the period,
there were struggles between the religious authorities and the rulers ofthe Holy Roman Empire.
These conflicts were eventually resolved in favour ofthe Papacy, but the
victory over secularism proved of relatively short duration. Religion and acommon legacy derived from the Roman Empire were strongly unifying
influences, while political and regional rivalries were not. But before arecognised system of international law could be created, social changes
were essential.
Of particular importance during this era were the authority of
the Holy Roman Empire and the supranational character of canon'' See e.g. M. A1 Ghunaimi, The Muslim Conception of International Latv and the Western
Approach, The Hague, 1968; A. Draz, 'Le Droit International Public et 1'Islam: 5 Revue
Egypfienne de Droit International, p. 17; H . Khadduri, 'Islam and the Modern Law of
Nations: 50 AJIL, 1956, p. 358, and Khadduri, M'czr and Peace in the Latv of Islarn, 2nd edn,
Baltimore, 1962, and S. Mahmassani, 'The Principles of International Law in the Light
of Islaillic Doctrine: 117 HR, 1966, p. 205. See also 'L'Asile et les Refi~giesdam la Tradition Musulmane: Report of the Sixty-Ninth Conference, International Law Association,
London, 2000, p. 305.
63 See Encyclopediu, pp. 141-2, and Nussbaum, Law ofNations, pp. 51-4.
64 Nussba~un,
Laiv ofNations, pp. 17-23, and Encyclopedia, pp. 143-9.

DEVELOPMENT OF INTERNATIONAL LAW

I9

law.65 Nevertheless, commercial and maritime law developed apace.
English law established the Law Merchant, a code of rules covering foreign
traders, and this was declared to be of universal application."
Throughout Europe, mercantile courts were set up to settle disputes
between tradesmen at the various fairs, and while it is not possible tostate that a Continental Law Merchant came into being, a network ofcommon regulations and practices weaved its way across the commercial fabric of Europe and constituted an embryonic international trade
Similarly, maritime customs began to be accepted throughout theContinent. Founded upon the Rhodian Sea Law, a Byzantine work, manyof whose rules were enshrined in the Rolls of Oleron in the twelfth
century, and other maritime textbooks, a series of commonly applied
customs relating to the sea permeated the naval powers of the Atlantic andMediterranean coasts.68
Such commercial and maritime codes, while at this stage merely expressions of national legal systems, were amongst the forerunners of international law because they were created and nurtured against a backcloth ofcross-national contacts and reflected the need for rules that would coverinternational situations.
Such rules, growing out of the early Middle Ages, constituted the seedsof international law, but before they could flourish, European thought
had first to be developed by that intellectual explosion known as theRenaissance.
This complex of ideas changed the face of European society andushered in the modern era of scientific, humanistic and individualistic
The collapse ofthe Byzantine Empire centred on Constantinople before
the Turkish armies in 1453 drove many Greek scholars to seek sanctuary
in Italy and enliven Western Europe's cultural life. The introduction of
printing during the fifteenth century provided the means to disseminate
65 Note in particular the influence of the Church on the rules governing warfare and thebinding nature of agreements: see Nussbaum, Law ofNations, pp. 17-18, and Encyclopedia,
pp. 146-7.
66 See G. Holdnvorth, A History of English Law, London, 1924, vol. 5, pp. 60-3.
67 Ibid., pp. 63-129.
Nussbaum, Lutv of Nutions, pp. 29-31. Note also the influence of the Consolato del Mare,composed in Barcelo~lain the mid-fourteenth century, and the Maritime Code of MTisby(approx. 1407) followed by the Hanseatic League.
See e.g. Friedmann, Changing Structure, pp. 114-16.

20

I N T E R N A T I O N A L LAW

knowledge, and the undermining of feudalism in the wake of economic
growth and the rise of the merchant classes provided the background to
the new inquiring attitudes taking shape.
Europe's developing self-confidence manifested itself in a sustained
drive overseas for wealth and luxury items. By the end of the fifteenth
century, the Arabs had been ousted from the Iberian peninsula and theAmericas reached.
The rise of the nation-states of England, France and Spain in particular characterised the process of the creation of territorially consolidated
independent units, in theory and doctrine, as well as in fact. This led toa higher degree of interaction between sovereign entities and thus theneed to regulate such activities in a generally acceptable fashion. The pursuit of political power and supremacy became overt and recognised, as
Machiavelli's The Prince (1513) demonstrated.
The city-states of Italy struggled for supremacy and the Papacy too
became a secular power. From these hectic struggles emerged many of thestaples of modern international life: diplomacy, statesmanship, the theoryof the balance of power and the idea of a community of states."
Notions such as these are immediately appreciable and one can identify
with the various manoeuvres for political supremacy. Alliances, betrayals, manipulations of state institutions and the drive for power are notunknown to us. We recognise the roots of our society.
It was the evolution of the concept of an international communityof separate, sovereign, if competing, states, that marks the beginning ofwhat is understood by international law. The Renaissance bequeathed theprerequisites of independent, critical thought and a humanistic, secularapproach to life as well as the political framework for the future. But
it is the latter factor which is vital to the subsequent growth of international law. The Reformation and the European religious wars that followedemphasised this, as did the growing power of the nations. In many ways
these wars marked the decline of a continental system founded on religion
and the birth of a continental system founded on the supremacy of thestate.
Throughout these countries the necessity was felt for a new conceptionof human as well as state relationships. This search was precipitated, as has
been intimated, by the decline of the Church and the rise of what might
be termed 'free-thinking'. The theory of international law was naturally'O

See e.g. G. Mattingley, Renaissance Diplomacy, London, 1955.

DEVELOPMENT OF INTERNATIONAL LAW

21

deeply involved in this reappraisal of political life and it was tremendously
influenced by the rediscovery of Greco-Roman ideas. The Renaissancestimulated a rebirth of Hellenic studies and ideas of Natural Law, in particular, became popular.
Thus, a distinct value-system to underpin international relations wasbrought into being and the law of nations was heralded as part of theuniversal law of nature.
With the rise ofthe modern state and the emancipation of international
relations, the doctrine of sovereignty emerged. This concept, first analysed
systematically in 1576 in the Six Livres de la Rkpubliqueby Jean Bodin, wasintended to deal with the structure of authority within the modern state.
Bodin, who based his study upon his perception of the politics of Europe
rather than on a theoretical discussion of absolute principles, emphasised
the necessity for a sovereign power within the state that would make thelaws. While such a sovereign could not be bound by the laws he himself
instituted, he was subject to the laws of God and of nature."
The idea of the sovereign as supreme legislator was in the course oftime transmuted into the principle which gave the state supreme power
vis-a-vis other states. The state was regarded as being above the law. Suchnotions as these formed the intellectual basis of the line of thought known
as positivism which will be discussed later.72
The early theorists of international law were deeply involved with theideas of Natural Law and used them as the basis of their philosophies.
Included within that complex of Natural Law principles from which they
constructed their theories was the significant merging of Christian andNatural Law ideas that occurred in the philosophy of St Thomas Aquinas.73
He maintained that Natural Law formed part of the law of God, and was
the participation by rational creatures in the Eternal Law. It complemented
that part of the Eternal Law which had been divinely revealed. Reason,declared Aquinas, was the essence of man and thus must be involved in
the ordering of life according to the divine will. Natural Law was the fountof moral behaviour as well as of social and political institutions, and it
led to a theory of conditional acceptance of authority with unjust laws
being unacceptable. Aquinas' views of the late thirteenth century can be" See A. Gardot, 'Jean Bodin Sa Place Parmi les Fondateurs du Droit International: 50 HR,-''

1934, p. 549. See also, for a discussioil of sovereignty and the treaty-making power in thelate middle ages, T. Meron, 'The Authority to Make Treaties in the Late Middle Ages', 89
AJIL, 1995, p. 1.
7 3 Surrlrna Theologin, English edn, 1927.
Below, pp.24.

22

I N T E R N A T I O N A L LAW

regarded as basic to an understanding of present Catholic attitudes, butshould not be confused with the later interpretation of Natural Law whichstressed the concepts of natural rights.
It is with such an intellectual background that Renaissance scholars
approached the question of the basis and justification of a system ofinternational law. Maine, a British historical lawyer, wrote that the birth ofmodern international law was the grandest function of the law of nature
and while that is arguable, the point must be taken.74International law
began to emerge as a separate topic to be studied within itself, althoughderived from the principles of Natural Law.

The founders of modern international law
The essence of the new approach to international law can be traced backto the Spanish philosophers of that country's Golden ~ g e . "The leading
figure of this school was Francisco Vitoria, Professor of Theology at the
University of Salamanca (1480-1546). His lectures were preserved by his
students and published posthumously. He demonstrated a remarkably
progressive attitude for his time towards the Spanish conquest of theSouth American Indians and, contrary to the views prevalent until then,maintained that the Indian peoples should be regarded as nations with
their own legitimate interests. War against them could only be justified on
the grounds of a just cause. International law was founded on the universal
law of nature and this meant that non-Europeans must be included within
its ambit. However, Vitoria by no means advocated the recognition of
the Indian nations as equal to the Christian states of Europe. For him,
opposing the work of the missionaries in the territories was a just reason
for war, and he adopted a rather extensive view as to the rights of the
Spaniards in South America. Vitoria was no liberal and indeed acted onbehalf of the Spanish Inquisition, but his lectures did mark a step forwardin the right direction.jh
74--

H. Maine, Ancient Law, London, 1861, pp. 56 and 64-6.

" Note Preiser's view that '[tlhere was hardly a single important problem of internationallaw until the middle of the 17th century which was not principally a problem of Spain andthe allied Habsburg countries': Encyclopedia, p. 150. See also Nussbaum, Law of Nations,pp. 79-93.
76 Nussbaum, Latv of Nations, pp. 79-84, and Encyclopedia, pp. 151-2. See also F. Vitoria,
De Indis et de Jure B d i Relectiones, Classics of International Law, IVashington, DC, 1917,
and J. B. Scott, The Spanish Origin of International Law, Francisco de Vitoria and his Law
of Nations, IVashingtoi~,DC, 1934.

DEVELOPMENT OF INTERNATIONAL LAW

23

Suarez (1548-1617) was a Jesuit and Professor of Theology who wasdeeply immersed in medieval culture. He noted that the obligatory character of international law was based upon Natural Law, while its substancederived from the Natural Law rule of carrying out agreements enteredinto.77
From a totally different background but equally, if not more, influential
was Alberico Gentili (1552-1608). He was born in Northern Italy and fled
to England to avoid persecution, having converted to Protestantism. In
1598 his De Jure Belli was published.78 It is a comprehensive discussionof the law of war and contains a valuable section on the law of treaties.
Gentili, who became a professor at Oxford, has been called the originatorof the secular school of thought in international law and he minimised
the hitherto significant theological theses.
It is, however, Hugo Grotius, a Dutch scholar, who towers over thisperiod and has been celebrated, if a little exaggeratedly, as the father ofinternational law. He was born in 1583 and was the supreme Renaissanceman. A scholar of tremendous learning, he mastered history, theology,
mathematics and the law.79His primarywork was the De Jure Belli ac Pacis,
written during 1623 and 1624. It is an extensive work and includes rather
more devotion to the exposition of private law notions than would seemappropriate today. He refers both to Vitoria and Gentili, the latter being ofspecial influence with regard to many matters, particularly organisationof material.
Grotius finally excised theology from international law and emphasised
the irrelevance in such a study of any conception of a divine law. He
remarked that the law of nature would be valid even if there were no God:a statement which, although suitably clothed in religious protestation,
was extremely daring. The law of nature now reverted to being founded
exclusively on reason. Justice was part of man's social make-up and thus
not only useful but essential. Grotius conceived of a comprehensive system
of international law and his work rapidly became a university textbook.
However, in many spheres he followed well-trodden paths. He retained
the theological distinction between a just and an unjust war, a notion thatN~lssbaum,Law ofNations, pp. 84-91. See also ibid., pp. 92-3 regarding the work ofAyala(1548-84).
78 Ibid. pp. 94-101. See also A. Van der Molen, Alberico Gerltili and the Development ofInternational Law, 2nd edn, London, 1968.
7 ~ u s s b a u i nLaw
, ofNations, pp. 102-14. See also Mr. S. M. Knight, The Life and Works of
Hugo Grotius, London, 1925, and 'Commemoration of the Fourth Century of the Birth ofGrotius' (various articles), 182 HR, 1984, pp. 371-470.
77

24

I N T E R N A T I O N A L LAW

was soon to disappear from treatises on international law, but which insome way underpins modern approaches to aggression, self-defence andliberation.
One of his most enduring opinions consists in his proclamation of thefreedom of the seas. The Dutch scholar opposed the 'closed seas' conceptof the Portuguese that was later elucidated by the English writer John
Selden" and emphasised instead the principle that the nations could not
appropriate to themselves the high seas. They belonged to all. It must,of course, be mentioned, parenthetically, that this theory happened toaccord rather nicely with prevailing Dutch ideas as to free trade and theneeds of an expanding commercial empire.
However, this merely points up what must not be disregarded, namelythat concepts of law as ofpolitics and other disciplines are firmly rooted in
the world of reality, and reflect contemporary preoccupations. No theory
develops in avacuum, but is conceived and brought to fruition in a definite
cultural and social environment. To ignore this is to distort the theory
itself.

Positivism and naturalism
Following Grotius, but by no means divorced from the thought of previous scholars, a split can be detected and two different schools identified. On the one hand there was the 'naturalist' school, exemplified bySamuel Pufendorf (1632-94),~~
who attempted to identify internationallaw completely with the law of nature; and on the other hand there werethe exponents of 'positivism', who distinguished between internationallaw and Natural Law and emphasised practical problems and current
state practices. Pufendorf regarded Natural Law as a moralistic system,
and misunderstood the direction of modern international law by denying
the validity of the rules about custom. He also refused to acknowledge
treaties as in any way relevant to a discussion of the basis of internationallaw. Other 'naturalists' echoed those sentiments in minimising or ignoring the actual practices of states in favour of a theoretical construction ofabsolute values that seemed slowly to drift away from the complexities ofpolitical reality.
One of the principal initiators of the positivist school was Richard
Zouche (1590-1660), who lived at the same time as Pufendorf, but in
80 In Mare Clau.cum Sive de Dorninio Maris, 1635.

On the Laiv ofNature and ofNations, 1672. See also Nussbaum, Law ofNations, pp. 147-50.

DEVELOPMENT OF INTERNATIONAL LAW

25~ n g l a n dWhile. ~ ~ completely dismissingNatura1Law, he paid scant regard
to the traditional doctrines. His concern was with specific situations andhis book contains many examples from the recent past. He elevated the lawof peace above a systematic consideration of the law of war and eschewed
theoretical expositions.
In similar style Bynkershoek (1673-1743) stressed the importance ofmodern practice and virtually ignored Natural Law. He made great contributions to the developing theories of the rights and duties of neutrals
in war, and after careful studies of the relevant facts decided in favour ofthe freedom of the seas.83
The positivist approach, like much of modern thought, was derived
from the empirical method adopted by the Renaissance. It was concerned
not with an edifice of theory structured upon deductions from absolute
principles, but rather with viewing events as they occurred and discussing
actual problems that had arisen. Empiricism as formulated by Locke and~ u m e denied'~
the existence of innate principles and postulated that ideas
were derived from experience. The scientific method of experiment andverification of hypotheses emphasised this approach.
From this philosophical attitude, it was a short step to reinterpretinginternational law not in terms of concepts derived from reason but rather
in terms of what actually happened between the competing states. Whatstates actually do was the key, not what states ought to do given basic
rules of the law of nature. Agreements and customs recognised by thestates were the essence of the law of nations.
Positivism developed as the modern nation-state system emerged, after
the Peace of Westphalia in 1648, from the religious w a n 8 ' It coincided,
too, with theories of sovereignty such as those propounded by Bodin and~ o b b e s , which'~
underlined the supreme power of the sovereign and led
to notions of the sovereignty of states.
Elements of both positivism and naturalism appear in the works ofVattel(1714-67), a Swiss lawyer. His Droit des Gens was based on Natural
Law principles yet was practically oriented. He introduced the doctrineof the equality of states into international law, declaring that a smallN~lssbaum,Laiv of hrations, pp. 165-7.

S"bid.,

pp. 167-72.

S4 See Friedmann, Legal Theory, pp. 253-5.

See L. Gross, 'The Peace of TVestphalia 1648-1948; 42 AJIL, 1948, p. 20; Renegotiating
Westphalia (eds. C . Harding and C. L. Lim), The Hague, 1999, especially chapter 1, and
S. Beaulac, 'The Westphalian Legal Orthodoxy- Myth or Reality?',2 Journal of the History
oflnternational Latv, 2000, p. 148.
86 Leviathan, 1651.

26

I N T E R N A T I O N A L LAW

republic was no less a sovereign than the most powerful kingdom, justas a dwarf was as much a man as a giant. By distinguishing between lawsof conscience and laws of action and stating that only the latter were ofpractical concern, he minimised the importance of Natural ~ a w . ~ ~Ironically, at the same time that positivist thought appeared to demolishthe philosophical basis of the law of nature and relegate that theory tohistory, it re-emerged in a modern guise replete with significance for the
future. Natural Law gave way to the concept of natural rights.88
It was an individualistic assertion of political supremacy. The idea ofthe social contract, that an agreement between individuals pre-dated andjustified civil society, emphasised the central role of the individual, andwhether such a theorywas interpreted pessimistically to demand an absolute sovereign as Hobbes declared, or optimistically to mean a conditional
acceptance of authority as Locke maintained, it could not fail to be a revolutionary doctrine. The rights of man constitute the heart of the Americans9 and French Revolutions and the essence of modern democraticsociety.
Yet, on the other hand, the doctrine of Natural Law has been employed
to preserve the absoluteness of sovereignty and the sanctity of private
possessions. The theoryhas areactionary aspect because it couldbe argued
that what was, ought to be, since it evolved from the social contract or
was divinely ordained, depending upon how secular one construed thelaw of nature to be.

The nineteenth century
The eighteenth century was a ferment of intellectual ideas and rationalist philosophies that contributed to the evolution of the doctrine ofinternational law. The nineteenth century by contrast was a practical, expansionist and positivist era. The Congress of Vienna, which marked theconclusion of the Napoleonic wars, enshrined the new international orderwhich was to be based upon the European balance of power. Internationallaw became Eurocentric, the preserve ofthe civilised, Christian states, into
which overseas and foreign nations could enter only with the consent of" See Nussbaum, Law of Nations, pp. 156-64. See also N. Onuf, 'Civitas Maxima: Wolff,

Vattel and the Fate of Republicanism', 88 AJIL, 1994, p. 280.
See e.g. 1. Finnis, Natural Law and Natural Rights, Oxford, 1980, and R. Tuck, Natural
Rights Theories, Cambridge, 1979.
"'eee.g. N. Oiluf and 0 . Onuf, Federal Lrn:nions,Modern World, Madison, 1994.

DEVELOPMENT OF INTERNATIONAL LAW

27

and on the conditions laid down by the Western powers. Paradoxically,
whilst international law became geographically internationalised throughthe expansion of the European empires, it became less universalist inconception and more, theoretically as well as practically, a reflection of~ u r o p e a nvalues.90This theme, the relationship between universalism andparticularism, appears time and again in international law. This century
also saw the coming to independence of Latin America and the forging
of a distinctive approach to certain elements of international law by thestates of that region, especially with regard to, for example, diplomatic
asylum and the treatment of foreign enterprises and national^.^'There are many other features that mark the nineteenth century.
Democracy and nationalism, both spurred on by the wars of the French
revolution and empire, spread throughout the Continent and changed
the essence of international relation^.^' No longer the exclusive concernof aristocratic klites, foreign policy characterised both the positive and thenegative faces of nationalism. Self-determination emerged to threaten themultinational empires of central and eastern Europe, while nationalism
reached its peak in the unifications of Germany and Italy and began to
exhibit features such as expansionism and doctrines of racial superiority. Democracy brought to the individual political influence and a say
in government. It also brought home the realities of responsibility, forwars became the concern of all. Conscription was introduced throughout
the Continent and large national armies replaced the small professionalf~rces.~The' Industrial Revolution mechanised Europe, created the economic dichotomy of capital and labour and propelled Western influence
throughout the world. All these factors created an enormous increasein the number and variety of both public and private international institutions, and international law grew rapidly to accommodate them.94
The development of trade and communications necessitated greater international co-operation as a matter of practical need. In 1815, the Final
See Nussbaum, LawofAkztions, pp. 186-250, and, e.g., C. H. Alexandrowicz, TheEuropeanAfrican Confrontation, Leiden, 1973.
" See below, chapters 3 and 14 respectively. See also H. Gros Espiell, 'La Doctrine du Droit
International en Amerique Latine avant la Premiere Conference Panamericaine: 3 Journal
o f t h e History oflnternational Law, 2001, p. 1.
92 See especially A. Cobban, The Nation State and hTational SelJ-Determination, London,
1969.
93 G. Best, Humanity in Warfare, London, 1980; Best, War.and Law Since 1945, Oxford, 1994,
and S. Bailey, Prohibitions and Restraints in War, Oxford, 1972.
94 See e.g. Bo~vett'.cLaw of International In.ctit~~tion.c,and The Evolution of International
Organisations (ed. E . Luard), Oxford, 1966.

28

I N T E R N A T I O N A L LAW

Act of the Congress of Vienna established the principle of freedom ofnavigation with regard to international waterways and set up a Central
Commission ofthe Rhine to regulate its use. In 1856 a commission for the
Danube was created and a number of other European rivers also became
the subject ofinternational agreements and arrangements. In 1865 the International Telegraphic Union was established and in 1874 the Universal
Postal ~ n i o n . ~ 'European conferences proliferated and contributed greatly to the development of rules governing the waging of war. The International Committee of the Red Cross, founded in 1863, helped promote the series ofGeneva Conventions beginning in 1864 dealing with the 'humanisation'of conflict, and the Hague Conferences of 1899 and 1907 established thePermanent Court of Arbitration and dealt with the treatment of prisoners
and the control of warfare.9Wumerous other conferences, conventions
and congresses emphasised the expansion of the rules of internationallaw and the close network of international relations. In addition, theacademic study of international law within higher education developedwith the appointment of professors of the subject and the appearance ofspecialist textbooks emphasising the practice of states.
Positivist theories dominate this century. The proliferation of the powers of states and the increasing sophistication of municipal legislation
gave force to the idea that laws were basically commands issuing from asovereign person or body. Any question of ethics or morality was irrelevant to a discussion of the validity of man-made laws. The approach wastransferred onto the international scene and immediately came face toface with the reality of a lack of supreme authority.
Since law was ultimately dependent upon the will of the sovereign innational systems, it seemed to follow that international law depended
upon the will of the sovereign states.
This implied a confusion of the supreme legislator within a state withthe state itself and thus positivism had to accept the metaphysical identityof the state. The state had a life and will of its own and so was able todominate international law. This stress on the abstract nature of the state
did not appear in all positivist theories and was a late devel~pment.~'
It was the German thinker Hegel who first analysed and proposed
the doctrine of the will of the state. The individual was subordinate to
95 See further below, chapter 23.

" See below, chapter 2.

96

See further below, chapter 21.

DEVELOPMENT OF INTERNATIONAL LAW

59

the state, because the latter enshrined the 'wills' of all citizens and had
evolved into a higher will, and on the external scene the state was sovereignand supreme." Such philosophies led to disturbing results in the twentieth century and provoked a re-awakening of the law of nature, dormant
throughout the nineteenth century.
The growth of international agreements, customs and regulations induced positivist theorists to tackle this problem of international law andthe state; and as a result two schools ofthought emerged.
The monists claimed that there was one fundamental principle which
underlay both national and international law. This was variously positedas 'right' or social solidarity or the rule that agreements must be
carried out (pacta sunt servanda). The dualists, more numerous andin a more truly positivist frame of mind, emphasised the element ofconsent.
For Triepel, another German theorist, international law and domestic(or municipal) law existed on separate planes, the former governing international relations, the latter relations between individuals and between
the individual and the state. International law was based upon agreements
between states (and such agreements included, according to Triepel, both
treaties and customs) and because it was dictated by the 'common will'of the states it could not be unilaterally altered.99
This led to a paradox. Could this common will bind individual statesand, if so, why? It would appear to lead to the conclusion that the will of
the sovereign state could give birth to a rule over which it had no control.
The state will was not, therefore, supreme but inferior to a collectionof states' wills. Triepel did not discuss these points, but left them open
as depending upon legal matters. Thus did positivist theories weaken
their own positivist outlook by regarding the essence of law as beyond
juridical description. The nineteenth century also saw the publication ofnumerous works on international law, which emphasised state practiceand the importance of the behaviour of countries to the development ofrules of international law.'OO
98 See e.g. S. Avineri, Hegel's Tlzeory of tlze Modern State, London, 1972, and Friedmann,

Legal Theory, pp. 164-76.
Friedmann Legal Theory, pp. 576-7. See also below, chapter 4.
loo See e.g. H. M'heaton, Elernerzts ofInternatiorza1 Laiv, Ne~v
York, 1836; \1'. E. Hall, A Treatise
oil Iilterilational Law, Oxford, 1880; Von Martens, Volkerrecht, Berlin, 2 vols., 1883-6;
Pradier-Fodtrt, Trait6 de Droit Iilterilutional Public, Paris, 8 vols., 1855-1906; and Fiore,
I1 Diritto Iilterilazionale Codificato e la Szla Sailzione Giuridica, 1890.
99

30

I N T E R N A T I O N A L LAW

The twentieth century
The First World War marked the close of a dynamic and optimistic century. European empires ruled the world and European ideologies reigned
supreme, but the 1914-18 Great War undermined the foundations ofEuropean civilisation. Self-confidence faded, if slowly, the edifice weakened and the universally accepted assumptions of progress were increasingly doubted. Self-questioning was the order of the day and law as well
as art reflected this.
The most important legacy of the 1919 Peace Treaty from the point ofview of international relations was the creation of the League of~ations."'
The old anarchic system had failed and it was felt that new institutions
to preserve and secure peace were necessary. The League consisted of an
Assembly and an executive Council, but was crippled from the start by
the absence of the United States and the Soviet Union for most of its lifeand remained a basically European organisation.
While it did have certain minor successes with regard to the maintenance of international order, it failed when confronted with determinedaggressors. Japan invaded China in 1931 and two years later withdrew
from the League. Italy attacked Ethiopia, and Germany embarked unhindered upon a series of internal and external aggressions. The Soviet Union,
in a final gesture, was expelled from the organisation in 1939 following
its invasion of Finland.
Nevertheless much useful groundwork was achieved by the League inits short existence and this helped to consolidate the United Nations later
on.lo2The Permanent Court of International Justice was set up in 1921 at
The Hague and was succeeded in 1946 by the International Court of Justice.lo3The International Labour Organisation was established soon after
the end ofthe First World War and still exists today, and many other international institutions were inaugurated or increased their work during thisperiod.
Other ideas of international law that first appeared between the wars
included the system of mandates, by which colonies of the defeated p owers
were administered by the Allies for the benefit of their inhabitants rather
than being annexed outright, and the attempt was made to provide a formof minority protection guaranteed by the League. This latter creation was
See Nussbaum, Law ofNations, pp. 251-90, and below, chapter 22.
See also G. Scott, The Rise and Fall of the League of Nations, London, 1973.
lo' See below, chapter 19.
lo'lo'DEVELOPMENT OF INTERNATIONAL LAW

3l

not a great success but it paved the way for later concern to secure humanrights.lo4
After the trauma of the Second World War the League was succeeded in1946 by the United Nations Organisation, which tried to remedy many ofthe defects of its predecessor. It established its site at New York, reflecting
the realities of the shift of power away from Europe, and determined to
become a truly universal institution. The advent of decolonisation fulfilled
this expectation and the General Assembly of the United Nations currently
has 191 member states.'05
Many of the trends which first came to prominence in the nineteenth century have continued to this day. The vast increase in thenumber of international agreements and customs, the strengthening of
the system of arbitration and the development of international organisations have established the essence of international law as it exists
today.

Communist approaches to international law
Classic Marxist theory described law and politics as the means whereby
the ruling classes maintained their domination of society. The essenceof economic life was the ownership of the means of production, and all
power flowed from this control. Capital and labour were the opposing
theses and their mutual antagonism would eventually lead to a revolution
out of which a new, non-exploitive form of society would emerge.'06
National states were dominated by the capitalist class and would have todisappear in the re-organising process. Indeed, the theory was that law
and the state would wither away once a new basis for society had been
establishedlo7and, because classical international law was founded upon
the state, it followed that it too would go.
However, the reality ofpower and the existence of the USSR surroundedby capitalist nations led to a modification in this approach. The international system of states could not be changed overnight into a socialist
order, so a period of transition was inevitable. Nevertheless basic changes
were seen as having been wrought.
""eebelow, chapter 6.

lo5 Following the admission of Timor-Leste (the former East Timor) on 27 September 2002.
lo6 See Lloyd, Introdtlction to Jurisprudence,chapter 10, and Friedmann, Legal Theory, chapter

lo'

29.
Engels, Anti-Dtlhring, quoted in Lloyd, Introduction to Jurisprudence, pp. 773-4.

32

I N T E R N A T I O N A L LAW

Professor Tunkin, for example, emphasised that the Russian October
revolution produced a new series of international legal ideas. These, it isnoted, can be divided into three basic, interconnected groups: (a) principles of socialist internationalism in relations between socialist states,(6) principles of equality and self-determination of nations and peoples, primarily aimed against colonialism, and (c) principles of peaceful co-existence aimed at relations between states with different social
systems.'08
We shall briefly look at these concepts in this section, but first a historical
overview is necessary.
During the immediate post-revolution period, it was postulated that atransitional phase had commenced. During this time, international law
as a method of exploitation would be criticised by the socialist state, but
it would still be recognised as a valid system. The two Soviet theorists
Korovin and Pashukanis were the dominant influences in this phase. The
transitional period demanded compromises in that, until the universal
victory of the revolution, some forms of economic and technical cooperation would be required since they were fundamental for the existenceof the international social order.lO' Pashukanis expressed the view thatinternational law was an interclass law within which two antagonisticclass systems would seek accommodation until the victory of the socialist
system. Socialism and the Soviet Union could still use the legal institutions
developed by and reflective of the capitalist system.110However, with therise of Stalinism and the 'socialism in one country' call, the position
hardened. Pashukanis altered his line and recanted. International law was
not a form of temporary compromise between capitalist states and the
USSR but rather a means of conducting the class war. The Soviet Union
was bound only by those rules of international law which accorded with
its purposes."'
Theory oflnternational Law, London, 1974, p. 4, and International Law (ed. G. I . Tnnkin),
Moscow, 1986, chapter 3. See also B. S. Chimni, Irzternational Law and World Order, New
Delhi, 1993, chapter 5; K. Grzybowski, Soviet Public International Latv, Leiden, 1970,
especially chapter 1, and generally H. Baade, The Soviet Irr~pacton International Law,
Leiden, 1964, and Friedmann, Legal Theory, pp. 3 2 7 4 0 . See also R. St. J. Macdonald,'Rummaging in the Ruins, Soviet International Law and Policy in the Early Years: Is
Anything Left?' in Wellens, Irlterrlatiorial Law, p. 6 1.
lo' ~ ~ ~ n kTheory
i n , of International Law, p. 5.
' l o Ibid., pp. 5-6. See also H. Babb and J. Hazard, Soviet Legal Philosophy, Cambridge, M A ,1951.
11' Grzybowski, Soviet Public International Law, pp. 6-9.
'Ox

DEVELOPMENT OF INTERNATIONAL LAW

33

The new approach in the late 1930s was reflected politically in Russia's
successful attempt to join the League of Nations and its policy of wooing
the Western powers, and legally by the ideas of Vyshinsky. He adopted amore legalistic view of international law and emphasised the Soviet acceptance of such principles as national self-determination, state sovereignty
and the equality of states, but not others. The role of international law did
not constitute a single international legal system binding all states. The
Soviet Union would act in pursuance of Leninist-Stalinist foreign policy
ideals and would not be bound by the rules to which it had not given
express ~ o n s e n t . " ~The years that followed the Second World War saw a tightening up
of Soviet doctrine as the Cold War gathered pace, but with the death of
Stalin and the succession of Khrushchev a thaw set in. In theoretical terms
the law of the transitional stage was replaced by the international law ofpeaceful co-existence. War was no longer regarded as inevitable between
capitalist and socialist countries and a period of mutual tolerance andco-operation was inaugurated.'13
Tunkin recognised that there was a single system of international law of
universal scope rather than different branches covering socialist and capitalist countries, and that international law was founded upon agreements
between states which are binding upon them. He defined contemporary
general international law as:
the aggregate of norms which are created by agreement between statesof different social systems, reflect the concordant wills of states and havea generally democratic character, regulate relations between them in theprocess of struggle and co-operation in the direction of ensuring peace andpeaceful co-existence and freedom and independence of peoples, and are
secured when necessary by coercion effectuated by states individually orcollecti~ely.~~"It is interesting to note the basic elements here, such as the stresson state sovereignty, the recognition of different social systems and theaim of peaceful co-existence. The role of sanctions in law is emphasised
and reflects much of the positivist influence upon Soviet thought. Such
Ibid., p. 9 .
Ibid., pp. 16-22. See also R. Higgins, Corlflict of Interests, London, 1964, part 111.
' I 4 Theory ofInternationa1 Law, p. 251. See also G. I. Tunkin, 'Co-existence and International
Law: 95 HR, 1958, pp. 1,51ff., and E. McWhinney, 'Contemporary Soviet General Theoryof International Law: Reflections on the Tunkin Era', 25 Canadian YIL, 1989, p. 187.
'I2
'I'

34

I N T E R N A T I O N A L LAW

preoccupations were also reflected in the definition of international law
contained in the leading Soviet textbook by Professor Kozhevnikov andothers where it was stated that:international law can be defined as the aggregate ofrules governingrelations
between states i n the process of their conflict a n d co-operation, designed
to safeguard their peaceful co-existence, expressing the will of the rulingclasses of these states a n d defended in case of need by coercion applied bystates individually o r collectively.11"

Originally, treaties alone were regarded as proper sources of internationallaw but custom became accepted as a kind of tacit or implied agreementwith great stress laid upon opinio juris or the legally binding element ofcustom. While state practice need not be general to create a custom, its
recognition as a legal form must be.'I6
Peaceful co-existence itself rested upon certain basic concepts, for example non-intervention in the internal affairs of other states and thesovereignty of states. Any idea of a world authority was condemned as a
violation of the latter principle. The doctrine of peaceful co-existence wasalso held to include such ideas as good neighbourliness, international cooperation and the observance in good faith of international obligations.
The concept was regarded as based on specific trends of laws of societal
development and as a specific form of class struggle between socialism
and capitalism, one in which armed conflict is precluded.'17 It was an
attempt, in essence, to reiterate the basic concepts of international law
in a way that was taken to reflect an ideological trend. But it must beemphasised that the principles themselves have long been accepted by theinternational community.
While Tunkin at first attacked the development of regional systems
of international law, he later came round to accepting a socialist law
which reflected the special relationship between communist countries.
The Soviet interventions in eastern Europe, particularly in Czechoslovakia in 1968, played a large part in augmenting such views.'18 In theInternational Law, Moscow, 1957, p. 7.
Theory of International Latv, p. 118. See also G. I. T~lnkin,'The Contemporary Soviet
Theory of International Law', Current Legal Problems, London, 1978, p. 177.
11' Tunkin, 'Soviet Theory', pp. 35-48. See also F. Vallat, 'International Law - A Forward
Look', 18 YBTVA, 1964, p. 251; J. Hazard, 'Codifying Peacefill Co-existence: 55 ATIL, 1961,
pp. 111-12; E. McIl"ninney, Peaceful Co-existence and Soviet-Western International Law,
1964, and K . Grzybowski, 'Soviet Theory of International Law for the Seventies', 77 AJIL,
1983, p. 862.
118 See Grzybowski, Soviet Ptlblic International Law, pp. 16-22.

DEVELOPMENT OF INTERNATIONAL LAW

35

Soviet view relations between socialist (communist) states represented anew, higher type of international relations and a socialist internationallaw. Common socio-economic factors and a political community createdan objective basis for lasting friendly relations whereas, by contrast, international capitalism involved the exploitation of the weak by the strong.
The principles of socialist or proletarian internationalism constituted aunified system of international legal principles between countries of thesocialist bloc arising by way of custom and treaty. Although the basic
principles of respect for state sovereignty, non-interference in internalaffairs and equality of states and peoples existed in general internationallaw, the same principles in socialist international law were made morepositive by the lack of economic rivalry and exploitation and by increased
co-operation. Accordingly, these principles incorporated not only material obligations not to violate each other's rights, but also the duty toassist each other in enjoying and defending such rights against capitalist
threats.'19
The Soviet emphasis on territorial integrity and sovereignty, while designed in practice to protect the socialist states in a predominantly capitalist environment, proved of great attraction to the developing nationsof the Third World, anxious too to establish their own national identities
and counteract Western financial and cultural influences.
With the decline of the Cold War and the onset of perestroika (restructuring) in the Soviet Union, a process of re-evaluation in the fieldof international legal theory took place.l2' The concept of peaceful coexistence was modified and the notion of class warfare eliminated fromthe Soviet political lexicon. Global interdependence and the necessity
for international co-operation were emphasised, as it was accepted thatthe tension between capitalism and socialism no longer constituted the
major conflict in the contemporary world and that beneath the former
dogmas lay many common interests.121The essence of new Soviet thinking was stated to lie in the priority of universal human values and theresolution of global problems, which is directly linked to the growing
importance of international law in the world community. It was alsollY
Tunkin,Theory oflrlterrlational Law, pp. 431-43.

120 See, for example, Perestroika and International Law (eds. A. Carty and G. Danilenko),

Edinburgh, 1990; R. Miillerson, 'Sources of International Law: New Tendencies in Soviet
Thinking: 83 AJIL, 1989, p. 494; V. Vereshchetin and R. Miillerson, 'International Law inan Interdependent World', 28 Columbia Journal of Transnational Laiv, 1990, p. 291, and
R. Quigley, 'Perestroika and International Law', 82 AJIL, 1988, p. 788.
12' I7ereschetin and Miillerson, 'Iilternational Law', p. 292.

36

I N T E R N A T I O N A L LAW

pointed out that international law had to be universal and not artificially divided into capitalist, socialist and Third World 'international law'systems.122
Soviet writers and political leaders accepted that activities such as theinterventions in Czechoslovakia in 1968 and Afghanistan in 1979 were
contrary to international law, while the attempt to create a state based on
the rule of law was seen as requiring the strengthening of the international
legal system and the rule of law in international relations. In particular,a renewed emphasis upon the role of the United Nations became evident
in Soviet policy.123
The dissolution of the Soviet Union in 1991 marked the end of theCold War and the re-emergence of a system of international relations
based upon multiple sources of power untrammelled by ideological determinacy. From that point,124Russia as the continuation of the former
Soviet Union (albeit in different political and territorial terms) enteredinto the Western political system and defined its actions in terms of its own
national interests free from principled hostility. The return to statehoodof the Baltic states and the independence of the other former republics of
the Soviet Union, coupled with the collapse ofYugoslavia, has constituteda political upheaval of major significance. The Cold War had imposed adualistic superstructure upon international relations that had had implications for virtually all serious international political disputes and had
fettered the operations of the United Nations in particular. Although theSoviet regime had been changing its approach quite significantly, theformal demise both of the communist system and of the state itself
altered the nature of the international system and this has inevitably had
consequences for international law.125The ending of inexorable superpower confrontation has led to an increase in instability in Europe andemphasised paradoxically both the revitalisation and the limitations of
the United Nations.
While relatively little has previously been known of Chinese attitudes, a
few points can be made. Western concepts are regarded primarily as aimed
at preserving the dominance of the bourgeois class on the internationallZ2 Ibid.

123 See Quigley, 'Perestroika', p. 794.

124 See e.g. R. Mtillerson, International Law, Rights artd Politics, London, 1994. See also The

End of the Cold War (eds. P. Allan and K. Goldmann), Dordrecht, 1992, and 14T. M.
Reisman, 'International Law after the Cold War: 84 AJIL, 1990, p. 859.
125 See e.g. R. Bilder, 'International Law in the "New World Order": Some Preliminary
Reflections: 1 Florida State University Journal o f Tranxnational Law and Policy, 1992,
p. 1.

DEVELOPMENT OF INTERNATIONAL LAW

37

scene. Soviet views were partially accepted but since the late 1950s andthe growing estrangement between the two major communist powers,
the Chinese concluded that the Russians were interested chiefly in maintaining the status quo and Soviet-American superpower supremacy.
The Soviet concept of peaceful co-existence as the mainstay of contemporary international law was treated with particular suspicion anddisdain.' 2h
The Chinese conception of law was, for historical and cultural reasons,very different from that developed in the West. 'Law' never attained theimportant place in Chinese society that it did in European civili~ation.'~'A sophisticated bureaucracylaboured to attain harmony and equilibrium,
and a system of legal rights to protect the individual in the Western sense
did not really develop. It was believed that society would be best servedby example and established morality, rather than by rules and sanctions.
This Confucian philosophy was, however, swept aside after the successfulcommunist revolution, to be replaced by strict Marxism-Leninism, with
its emphasis on class warfare.lZ8
The Chinese seem to have recognised several systems of internationallaw, for example, Western, socialist and revisionist (Soviet Union), andto have implied that only with the ultimate spread of socialism would
a universal system be possible.129International agreements are regarded
as the primary source of international law and China has entered into
many treaties and conventions and carried them out as well as othernations.130 One exception, of course, is China's disavowal of the so-called'unequal treaties' whereby Chinese territory was annexed by other powers,
in particular the Tsarist Empire, in the nineteenth century.13'
I2"ee
H. Chiu, 'Communist China's Attitude towards International La~v',60 AJIL, 1966,
p. 245; 1. K. Fairbank, The Chinese World Order, Cambridge, 1968; J. Cohen, China's
Practice ofI~iterr~ationalLaw, Princeton, 1972; Anglo-Chinese Educational Trust, China'sWorld View, London, 1979; J. Cohen and H. Chiu, People's China and International Law,
Princeton, 2 vols., 1974, and C. Kim, 'The People's Republic of China and the Charterbased International Legal Order', 72 AJIL, 1978, p. 317.
12' See Lloyd, Introdtlction to Jurisprudence, pp. 760-3; S. Van der Sprenkel, Legal Institutionsin Northern China, New York, 1962, and R. Unger, Law in Modern Society, New York,
1976, pp. 86-109.
lZ8 Lloyd, Introdtrction to Jurisprudence, and H. Li, 'The Role of Law in Communist China',
China Quarterly, 1970,p. 66, cited in Lloyd, Introduction to Jurisprudence, pp. 801-8.
12' See e.g. Cohen and Chiu, Peoplci China, pp. 62-4.
130 Ihid., pp. 77-82, and part VIII generally.
13' See e.g. I. Detter, 'The Problem of Unequal Treaties', 15 ICLQ 1966, p. 1069; Nozari,
Unequal Treaties in International Law, 1971; Chiu, 'Communist China's Attitude: pp. 23967, and Chen, State Succession Relating to Lrnequal Treaties, Hamden, 1974.

38

I N T E R N A T I O N A L LAW

On the whole, international law has been treated as part of international
politics and subject to considerations of power and expediency, as well as
ideology. Where international rules conform with Chinese policies andinterests, then they will be observed. Where they do not, they will beignored.
However, now that the isolationist phase of its history appears to be
over, relations with other nations established and its entry into the United
Nations secured, Communist China appears to be adopting a more cautious approach in international relations. This appears to have led to alegalisation of its view of international law as occurred with the Soviet
Union, and as China seeks in a multi-power world to increase its influenceand power.

T h e Third WorldIn the evolution of international affairs since the Second World War oneof the most decisive events has been the disintegration of the colonial
empires and the birth of scores of new states in the so-called Third World.
This has thrust onto the scene states which carry with them a legacy of
bitterness over their past status as well as a host ofproblems relating to their
In such circumstances itsocial, economic and political deve10pment.l~~
was only natural that the structure and doctrines of international law
would come under attack. The nineteenth century development of thelaw of nations founded upon Eurocentrism and imbued with the valuesof Christian, urbanised and expanding ~ u r o p edid
' ~ not,~ understandably
enough, reflect the needs and interests of the newly independent statesof the mid- and late twentieth century. It was felt that such rules had
encouraged and then reflected their subjugation, and that changes wererequired.134
See e.g. R. P. Anand, 'Attitude of the Afro-Asian States Towards Certain Problems of International Law', 15 ICLQ, 1966, p. 35; T. 0 . Elias, New Horizons in International Law,
Leiden, 1980, and Higgins, Conflictoflrlterests,part 11.See also Hague Academy of International Law, Colloque, The Future of International Law in a Mtrlticultural World, especiallyp p 117-42, and Henkin, How Nations Behave, pp. 121-7.
13' See e.g. Verzijl, International Law in Historical Perspective, vol. I, pp. 435-6. See also B.
Roling, International Latv in an Expanded World, Leiden, 1960, p. 10.
""heconverse of this has been the view of some writers that the universalisation of international law has led to a dilution of its content: see e.g. Friedmann, Changing Structure,p. 6; J. Stone, Quest for Survival: The Role of Law and Foreign Policy, Sydney, 1961, p. 88,
and J. Brierly, The Law ofNations, 6th edn, Oxford, p. 43.
'j2

DEVELOPMENT OF INTERNATIONAL LAW

39

It is basically those ideas of international law that came to fruition in
the nineteenth century that have been so clearly rejected, that is, thoseprinciples that enshrined the power and domination of the west.13' The
underlying concepts of international law have not been discarded. On
the contrary. The new nations have eagerly embraced the ideas of thesovereignty and equality of states and the principles of non-aggression
and non-intervention, in their search for security within the bounds of acommonly accepted legal framework.
While this new internationalisation of international law that has occurred in the last fifty years has destroyed its European-based homogeneity, it has emphasised its universalist scope.'j6 The composition of,for example, both the International Court of Justice and the Security
Council of the United Nations mirrors such developments. Article 9 of
the Statute of the International Court of Justice points out that the main
forms of civilisation and the principal legal systems of the world must
be represented within the Court, and there is an arrangement that of
the ten non-permanent seats in the Security Council five should go to
Afro-Asian states and two to Latin American states (the others going toEurope and other states). The composition ofthe International Law Commission has also recently been increased and structured upon geographic
lines.'j7
The influence of the new states has been felt most of all within the
General Assembly, where they constitute a majority of the 191 member
states.13' The content and scope of the various resolutions and declarations emanating from the Assembly are proof of their impact and containa record of their fears, hopes and concerns.
The Declaration on the Granting of Independence to Colonial Countries and Peoples of 1960, for example, enshrined the right of colonies toobtain their sovereignty with the least possible delay and called for therecognition of the principle of self-determination. This principle, which
is discussed elsewhere in this book,139is regarded by most authorities asa settled rule of international law although with undetermined borders.
See e.g. Alexandrowicz, Et~ropean-A4fricarlConfrontation.
See F. C. Okoye, International Laiv and the Netv African States, London, 1972; T. 0.Elias,
Africa and the Development of Iriternational Law, Leiden, 1972, and Erlcyclopedia ofpublic
Irlterrlational Law, vol. VII, 1984, pp. 205-51.
137 By General Assembly resolution 36139, twenty-one of the thirty-four members are to benationals of Afro-Asian-Latin American states.
138 See above, footnote 105.
13' See below, chapter 5 , p. 225.
'j5

40

I N T E R N A T I O N A L LAW

Nevertheless, it symbolises the rise of the post-colonial states and theeffect they are having upon the development of international law.
Their concern for the recognition of the sovereignty of states is complemented by their support of the United Nations and its Charter andsupplemented by their desire for 'economic self-determination' or theright of permanent sovereignty over natural resource^.'^' This expansionof international law into the field of economics was a major developmentof the twentieth century and is evidenced in myriad ways, for example, by
the creation of the General Agreement on Tariffs and Trade, the United
Nations Conferences on Trade and Development, and the establishmentof the International Monetary Fund and World Bank.
The interests of the new states of the Third World are often in conflictwith those of the industrialised nations, witness disputes over nationalisations. But it has to be emphasised that, contrary to many fears expressedin the early years of the decolonisation saga, international law has notbeen discarded nor altered beyond recognition. Its framework has beenretained as the new states, too, wish to obtain the benefits of rules suchas those governing diplomatic relations and the controlled use of force,
while campaigning against rules which run counter to their perceived
interests.
While the new countries share a common history of foreign dominance and underdevelopment, compounded by an awakening of national
identity, it has to be recognised that they are not a homogenous group.
Widely differing cultural, social and economic attitudes and stages ofdevelopment characterise them, and the rubric of the 'Third World'
masks diverse political affiliations. On many issues the interests of the newstates conflict with each other and this is reflected in the different positions
adopted. The states possessing oil and other valuable natural resources
are separated from those with few or none and the states bordering on
oceans are to be distinguished from landlocked states. The list of diversity
is endless and variety governs the make-up of the southern hemisphereto a far greater degree than in the north.
It is possible that in legal terms tangible differences in approach may
emerge in the future as the passions of decolonisation die down and theWestern supremacy over international law is further eroded. This trend
will also permit a greater understanding of, and greater recourse to,historical traditions and conceptions that pre-date colonisation and an'" See below, chapter 14, p. 737.

D E V E L O P M E N T O F I N T E R N A T I O N A L LAW

41

increasing awareness of their validity for the future development of international law.141
In the medium term, however, it has to be recognised that with the endof the Cold War and the rapid development of Soviet (then Russian)American co-operation, the axis of dispute is turning from East-West
to North-South. This is beginning to manifest itself in a variety ofissues ranging from economic law to the law of the sea and human rights,
while the impact of modern technology has hardly yet been appreciated.'42 Together with such factors, the development of globalisation has
put additional stress upon the traditional tension between universalism
and p articularism.'" Globalisation in the sense of interdep endence ofa high order of individuals, groups and corporations, both public andprivate, across national boundaries, might be seen as the universalisationof Western civilisation and thus the triumph of one special particularism.
On the other hand, particularism (in the guise of cultural relativism) has
sometimes been used as a justification for human rights abuses free frominternational supervision or criticism.
Suggestions for further reading

T.M. Franck, The Power of Legitimacy Among Nations, Oxford, 1990
L. Henkin, Irzternutionul Luw: Politics and Values, Dordrecht, 1995
R. Higgins, Problems and Process, Oxford, 1994
A. Nussbaum, A Concise History of the Law of Nutions, revised edition, New York,1954

See e.g. H. Sarin, 'The Asian-African States and the Development of International Law', inHague Academy Colloque, p. 117; Encyclopedia, vol. VII, pp. 205-51, and R. Westbrook,'Islamic International Law and Public International Law: Separate Expressions of M70rld
Order: 33 Va. JIL, 1993, p. 819. See also C. W. Jenks, The Cornmoil Law of Mankind,
Oxford, 1958, p. 169, and Cassese, International Law, pp. 64 ff. Note also the referencesby the Tribunal in the Eritrea/Yernen cases to historic title and regional legal traditions:see the judgment in Phase One: Territorial Sovereignty, 1998, 114 ILR, pp. 1, 37 ff. andPhase Two: Maritime Delimitation, 1999, 119 ILR, pp. 417,448.
142 See e.g. M. Lachs, 'Thoughts on Science, Technology and TITorldLaw', 86 AJIL, 1992,
p. 673.
'43 See Koskenniemi, Gentle Cililizer ofh'ations.

14'International law today

The expanding legal scope of international concern

International law since the middle of the last century has been developingin many directions, as the complexities of life in the modern era havemultiplied. For, as already emphasised, law reflects the conditions andcultural traditions of the society within which it operates. The community
evolves a certain specific set of values - social, economic and political and this stamps its mark on the legal framework which orders life in thatenvironment. Similarly, international law is a product of its environment.
It has developed in accordance with the prevailing notions ofinternational
relations and to survive it must be in harmony with the realities of theage.
Nevertheless, there is a continuing tension between those rules alreadyestablished and the constantly evolving forces that seek changes within
the system. One of the major problems of international law is to determine when and how to incorporate new standards of behaviour and new
realities of life into the already existing framework, so that, on the one
hand, the law remains relevant and, on the other, the system itself is not
too vigorously disrupted.
Changes that occur within the international community can be momentous and reverberate throughout the system. For example, the adventof nuclear arms created a status quo in Europe and a balance of terror
throughout the world. It currently constitutes a factor of unease as certain
states seek to acquire nuclear technology. Another example is the technological capacity to mine the oceans and the consequent questions as to thenature and beneficiaries of exploitation.' The rise of international terrorism has posited new challenges to the system as states and internationalorganisations struggle to deal with this phenomenon while retaining respect for the sovereignty of states and for human rights2 There are several
See below, chapter 11.

See below, chapter 20.

I N T E R N A T I O N A L LAW T O D A Y

43instances of how modern developments demand a constant reappraisalof the structure of international law and its rules.
The scope of international law today is immense. From the regulationof space expeditions to the question of the division of the ocean floor, andfrom the protection of human rights to the management of the international financial system, its involvement has spread out from the primaryconcern with the preservation of peace, to embrace all the interests ofcontemporary international life.
But the raison d'ttre of international law and the determining factor inits composition remains the needs and characteristics of the international
political system. Where more than one entity exists within a system, there
has to be some conception as to how to deal with other such entities,
whether it be on the basis of co-existence or hostility. International law
as it has developed since the seventeenth century has adopted the same
approach and has in general (though with notable exceptions) eschewed
the idea of permanent hostility and enmity. Because the state, while internally supreme, wishes to maintain its sovereignty externally and needs
to cultivate other states in an increasingly interdependent world, it mustacknowledge the rights of others. This acceptance of rights possessed by
all states, something unavoidable in a world where none can stand alone,leads inevitably to a system to regulate and define such rights and, ofcourse, obligations.
And so one arrives at some form of international legal order, no matter how unsophisticated and how occasionally positively di~orderly.~The
current system developed in the context of European civilisation as it progressed, but this has changed. The rise of the United States and the Soviet
Union mirrored the decline of Europe, while the process of decolonisation
also had a considerable impact. More recently, the collapse of the Soviet
Empire and the Soviet Union and the phenomenon of globalisation are
also impacting deeply upon the system. Faced with radical changes in the
structure of power, international law needs to come to terms with new
ideas and challenges.
The Eurocentric character of international law has been gravely weakened in the last sixty years or so and the opinions, hopes and needs of' For views as to the precise definition and characteristics of the international order orsystem or community, see G. Schwarzenberger and E. D. Brown, A Manual of Internatiorial Law, 6th edn, London, 1976, pp. 9-12; H. Yalem, 'The Concept of World Order:
29 YBM'A, 1975, and I. Pogany, 'The Legal Foundations of 14'orld Order: 37 YBWA, 1983,
p. 277.

44

I N T E R N A T I O N A L LAW

other cultures and civilisations are beginning to play an increasing role in
the evolution of world juridical thoughte4International law reflects first and foremost the basic state-oriented
character of world politics. Units of formal independence benefiting fromequal sovereignty in law and equal possession of the basic attributes ofstatehood' have succeeded in creating a system enshrining such values.
Examples that could be noted here include non-intervention in internalaffairs, territorial integrity, non-use of force and equality of voting in the
United Nations General Assembly. However, in addition to this, manyfactors cut across state borders and create a tension in world politics, suchas inadequate economic relationships, international concern for humanrights and the rise in new technological f ~ r c e sState. ~ policies and balancesof power, both international and regional, are a necessary framework
within which international law operates, as indeed are domestic politicalconditions and tensions. Law mirrors the concern of forces within states
and between states.
It is also important to realise that states need law in order to seek
and attain certain goals, whether these be economic well-being, survival
and security or ideological advancement. The system therefore has to becertain enough for such goals to be ascertainable, and flexible enoughto permit change when this becomes necessary due to the confluence offorces demanding it.7
International law, however, has not just expanded horizontally to embrace the new states which have been established relatively recently; it has
extended itself to include individuals, groups and international organisations within its scope. It has also moved into new fields covering such
issues as international trade, problems of environmental protection andouter space exploration.
The growth of positivism in the nineteenth century had the effect offocusing the concerns of international law upon sovereign states. They
alone were the 'subjects' of international law and were to be contrasted
with the status of non-independent states and individuals as 'objects' ofinternational law. They alone created the law and restrictions upon their'See e.g. L. C. Green, 'Is There a Universal International Law Today?',23 CanadianYIL, 1985,
p. 3.
See below, chapter 5, p. 192.
For examples of this in the context of the law relating to territory, see M. N. Shaw, Title to
Territory in Africa: International Legal Issues, Oxford, 1986, pp. 1-11.
See S. Hoffman, 'International Systems and International Law', 14 World Politics, 1961-2,
p. 205.

I N T E R N A T I O N A L LAW T O D A Y

45

independence could not be presumed.' But the gradual sophistication of
positivist doctrine, combined with the advent of new approaches to thewhole system of international relations, has broken down this exclusiveemphasis and extended the roles played by non-state entities, such asindividuals, multinational firms and international institution^.^ 11 was,of course, long recognised that individuals were entitled to the benefitsof international law, but it is only recently that they have been able to act
directly rather than rely upon their national states.
The Nuremberg and Tokyo Tribunals set up by the victorious Allies
after the close of the Second World War were a vital part of this process.
Many of those accused were found guilty of crimes against humanity
and against peace and were punished accordingly. It was a recognition ofindividual responsibility under international law without the usual interposition of the state and has been reinforced with the establishment of
the Yugoslav and Rwanda War Crimes Tribunals in the mid-1990s andthe International Criminal Court in 1998." Similarly the 1948 Genocide
Convention provided for the punishment of offenders after conviction bynational courts or by an international criminal tribunal." The developing
concern with human rights is another aspect ofthis move towards increasing the role of the individual in international law. The Universal Declaration of Human Rights adopted by the United Nations in 1948 lists a seriesof political and social rights, although it is only a guideline and not legallybinding as such. The European Convention for the Protection of Human
Rights and Fundamental Freedoms signed in 1950 and the International
Covenants on Human Rights of 1966 are of a different nature and binding
upon the signatories. In an effort to function satisfactorily various bodies
of a supervisory and implementational nature were established. Within
the European Union, individuals and corporations have certain rights ofdirect appeal to the European Court of Justice against decisions of thevarious Union institutions. In addition, individuals may appear before
certain international tribunals. Nevertheless, the whole subject has beenhighly controversial, with some writers (for example Soviet theorists prior
to perestroika) denying that individuals may have rights as distinct fromduties under international law, but it is indicative of the trend away fromthe exclusivity of the state.12
Together with the evolution of individual human rights, the rise of international organisations marks perhaps the key distinguishing feature oflo

See the Lotuscase, PCIJ, Series A, No. 10, p. 18.
See further below, chapter 5, pp. 223 ff.
" Ibid.
l 2 See further below, chapter 6.

Ibid.

46

I N T E R N A T I O N A L LAW

modern international law. In fact, international law cannot in the contemporary era be understood without reference to the growth in number andinfluence of such intergovernmental institutions, and of these the mostimportant by far is the United ~ations.'"he UN comprises the vast majority of states (as of April 2003 there were 191 member states) and thatalone constitutes a political factor of high importance in the process of
diplomatic relations and negotiations and indeed facilitates international
co-operation and norm creation. Further, of course, the existence of the
Security Council as an executive organ with powers to adopt resolutions
in certain circumstances that are binding upon all member states is uniquein the history of international relations.
International organisations have now been accepted as possessing
rights and duties of their own and a distinctive legal personality. The
International Court of Justice in 1949 delivered an Advisory opinion14 inwhich it stated that the United Nations was a subject of international law
and could enforce its rights by bringing international claims, in this caseagainst Israel following the assassination of Count Bernadotte, a United
Nations official. Such a ruling can be applied to embrace other international institutions, like the International Labour Organisation and the
Food and Agriculture Organisation, which each have a judicial character of
their own. Thus, while states remain the primary subjects of internationallaw, they are now joined by other non-state entities, whose importance islikely to grow even further in the future.
The growth of regional organisations should also be noted at this stage.
Many of these were created for reasons of military security, for example NATO and the opposing Warsaw Pact organisations, bthers as an
expression of regional and cultural identity such as the Organisation of
African Unity (now the African Union) and the Organisation ofAmerican
States. In a class of its own is the European Union which has gone far
down the road of economic co-ordination and standardisation and hasa range of common institutions serviced by a growing bureaucracy stationed primarily at Brussels. Such regional organisations have added tothe developing sophistication of international law by the insertion of'regional-international law sub-systems' within the universal frameworkand the consequent evolution of rules that bind only member states."l 3 See further below, chapter 22.

Reparation for Injuries Suffered in the Service of the United Nations, ICT Reports, 1949,
p. 174; 16 AD, p. 318.
li See generally below, chapter 23.
l4

I N T E R N A T I O N A L LAW T O D A Y

47

The range of topics covered by international law has expanded handin hand with the upsurge in difficulties faced and the proliferation in thenumber of participants within the system. It is no longer exclusively concernedwith issues relating to the territory or jurisdiction of states narrowly
understood, but is beginning to take into account the specialised problems of contemporary society. Many of these have already been referred
to, such as the vital field of human rights, the growth of an international
economic law covering financial and development matters, concern withenvironmental despoliation, the space exploration effort and the exploitation of the resources of the oceans and deep seabed. One can mention
also provisions relating to the bureaucracy of international institutions(international administrative law), international labour standards, healthregulations and communications controls. Many of these trends may beseen as falling within, or rather reflecting, the phenomenon of globalisation, a term which encompasses the inexorable movement to greaterinterdependence founded upon economic, communications and culturalbases and operating quite independently of national regulation.16 Thisin turn stimulates disputes of an almost ideological nature concerning,for example, the relationship between free trade and environmental protection.17 To this may be added the pressures of democracy and humanrights, both operating to some extent as countervailing influences to theclassical emphasis upon the territorial sovereignty and jurisdiction ofstates.
e.g. A. Giddens, The Consequences of Modernity, Stanford, 1990; S. Sur, 'The State
Between Fragmentation and Globalisation: 8 EJIL, 1997, p. 421; B. Simma and A. Padus,'The "International Conimunitf"' Facing the Challenge of Globalisation. General Conclusions: 9 EJIL, 1998, p. 266, and P. M. Dupuy, 'International Law: Torn Between Coexistence,
Co-operation and Globalisation. General Conclusions: 9 EJIL, 1998, p. 278. See also the
Declaration of Judge Bediaoui in the Advisory Opinion on The Legality of the Threat or
Use ofNuclear IVeapons, ICJ Reports, 1996, pp. 226, 270-1. Note that Philip Bobbitt has
described five developments challenging the nation-state system, and thus in essence characterising the globalisation challenge, as follows: the recognition of human rights as norms
requiring adherence within all states regardless of internal laws; the widespread deployment ofweapons of mass destruction rendering the defence of state borders ineffectual forthe protection of the society within; the proliferation of global and transnational threatstranscending state boundaries such as those that damage the environment or threaten
states through migration, population expansion, disease or famine; the growth of a world
economic regime that ignores borders in the movement of capital investment to a degree that effectively curtails states in the management of their economic affairs; and thecreation of a global communications network that penetrates borders electronically andthreatens national languages, custon~sand cultures, The Shield ofilchilles, New York, 2002,
p. xxii.
" See e.g. Myers 17. Canada, 12 1 ILR, pp. 72, 110.

"' ee

48

I N T E R N A T I O N A L LAW

Modern theories and interpretations
At this point some modern theories as to the nature and role of international law will be briefly noted.

Positive Law and Natural Law
Throughout the history of thought there has been a complex relationshipbetween idealism and realism, between the way things ought to be andthe way things are, and the debate as to whether legal philosophy shouldincorporate ethical standards or confine itself to an analysis of the law as
it stands is a vital one that continues today.18
The positivist school, which developed so rapidly in the pragmatic,
optimistic world of the nineteenth century, declared that law as it exists should be analysed empirically, shorn of all ethical elements. Moralaspirations were all well and good but had no part in legal science. Manmade law must be examined as such and the metaphysical speculationsof Natural Law rejected because what counted were the practical realities, not general principles which were imprecise and vague, not to say
ambiguous.19
This kind of approach to law in society reached its climax with Kelsen's'Pure Theory of Law: Kelsen defined law solely in terms of itself andeschewed any element ofjustice, which was rather to be considered within
the discipline of political science. Politics, sociology and history were all
excised from the pure theory which sought to construct a logical unified
structure based on a formal apprai~al.~'Law was to be regarded as a normative science, that is, consisting ofrules which lay down patterns ofbehaviour. Such rules, or norms, depend
for their legal validity on a prior norm and this process continues until
See e.g. D. Lyons, Ethics and the Rule of Law, London, 1984; R. Dworkin, Taking Rights
Seriously, London, 1977; H . L. A. Hart, The CoriceptofLaw, Oxford, 1961, andP. Stein and J.
Shand, Legal Values in \Vestern Society, Edinburgh, 1974. See also R. Dias, Jurisprudence,
5th edn, London, 1985.
I y See Hart, Concept o f l a w , and Hart, 'Positivism and the Separation of Law and Morals: 71
Harvard Law Review, 1958,p.593. Cf. L. Fuller, 'Positivism and Fidelity to Law - A Reply
to Professor Hart', 71 Harvard Law Review, 1958, p. 630. See also D. Anzilotti, Cours deDroit International, Paris, 1929, and B. Kingsbury, 'Legal Positivism as Normative Politics:
International Society, Balance of Power and Lassa Oppenheim's Positive International
Law: 13 EJIL, 2002, p. 401.
'The Pure Theory of Law: 50 LQR, 1934, pp. 474, 477-85 and 51 LQR, 1935, pp. 51722. See also the articles collected in 'The European Tradition in International Law: Hans
Kelsen', 9 ETIL, 1998, pp. 287 ff.
IS*'

I N T E R N A T I O N A L LAW T O D A Y

49

one reaches what is termed the basic norm of the whole system. This basic
norm is the foundation of the legal edifice, because rules which can be
related back to it therefore become legal rules. To give a simple example,
a court order empowering an official to enforce a fine is valid if the court
had that power which depends upon an Act of Parliament establishing thecourt. A rule becomes a legal rule if it is in accordance with a previous (andhigher) legal rule and so on. Layer builds upon layer and the foundationof it all is the basic norm.21
The weakness of Kelsen's 'pure' system lies primarily in the concept ofthe basic norm for it relies for its existence upon non-legal issues. In fact,
it is a political concept, and in the United Kingdom it would probably be
the principle of the supremacy of ~ a r l i a m e n t . ~ ~This logical, structured system of validity founded upon an extralegal concept encounters difficulties when related to international law.
For Kelsen international law is a primitive legal order because of its lackof strong legislative, judicial and enforcement organs and its consequent
resemblance to a pre-state society. It is accordingly characterised by theuse of self-help." The principles of international law are valid if they canbe traced back to the basic norm of the system, which is hierarchical in
the same sense as a national legal system. For Kelsen, the basic norm is therule that identifies custom as the source oflaw, or stipulates that 'the states
ought to behave as they customarily beha~ed'.'~One of the prime rulesof this category is pacta sunt servanda declaring that agreements must
be carried out in good faith and upon that rule is founded the second
stage within the international legal order. This second stage consists of
the network of norms created by international treaties and conventions
and leads on to the third stage which includes those rules establishedby organs which have been set up by international treaties, for instance,
decisions of the International Court of ~ u s t i c e . ~ ~The problem with Kelsen's formulation of the basic norm of international law is that it appears to be tautological: it merely repeats that states
which obey rules ought to obey those rules.26It seems to leave no room'' Kelsen, Pure Theory.

1. Stone, 'Mystery and Mystique in the Basic Norm', 26 MLR, 1963, p. 34, and J. Raz,
Practical Reason and Norms, Oxford, 1975, pp. 129-31.
General Theory of Law and State, Cambridge, 1946, pp. 328 ff. See also J. Lador-Lederer,'Some Observations on the "Vienna School" in International Law', 17 NILR, 1970,
p. 126.
'4 Kelsen, General Theory of Law and State, pp. 369-70.
" Ibid.
l6 Hart terms this 'mere useless reduplication': Concept oflaiv, p. 230.
22 See''50

I N T E R N A T I O N A L LAW

for the progressive development of international law by new practices
accepted as law for that involves states behaving differently from the way
they have been behaving. Above all, it fails to answer the question as towhy custom is binding.
Nevertheless, it is a model of great logical consistency which helps explain, particularly with regard to national legal systems, the proliferationof rules and the importance of validity which gives as it were a mysticalseal of approval to the whole structured process. It helps illustrate howrule leads to rule as stage succeeds stage in a progression of norms forminga legal order.
Another important element in Kelsen's interpretation of law is his extreme 'monist' stance. International law and municipal law are not two
separate systems but one interlocking structure and the former is supreme.
Municipal law finds its ultimate justification in the rules of internationallaw by a process of delegation within one universal normative system.27
Kelsen's pure theory seemed to mark the end of that particular road,and positivism was analysed in more sociological terms by Hart in his
book The Concept of Law in 1961.
Hart comprehends law as a system of rules, based upon the interactionof primary and secondary rules. The former, basically, specify standardsof behaviour while the latter provide the means for identifying and developing them and thus specify the constitutional procedures for change.
Primitive societies would possess only the primary rules and so would
be characterised by uncertainty, inefficiency and stagnation, but with increasing sophistication the secondary rules would develop and identify
authority and enable the rules to be adapted to changing circumstances
in a regular and accepted manner.28
The international legal order is a prime example of a simple formof social structure which consists only of the primary rules, because of
its lack of a centralised legislature, network of recognised courts withcompulsory jurisdiction and organised means of enforcement. Accordingly, it has no need of, or rather has not yet evolved, a basic norm orin Hart's terminology a rule of recognition, by reference to which thevalidity of all the rules may be tested. Following this train of thought,
Hart concludes that the rules of international law do not as yet constitutea 'system' but are merely a 'set of rules'. Of course, future developments*' General Theory ofLaw and State, pp. 366-8. See further below, chapter 4.
Concept of Law, chapter 5. See also e.g. Dworkin, Taking Rights Seriously; Raz, Practical
Reason, and N . MacCormick, Legal Reasoning and Legal Theory, Oxford, 1978.

I N T E R N A T I O N A L LAW T O D A Y

5l

may see one particular principle, such as pacta sunt seuvanda, elevated tothe state of a validating norm but in the present situation this has not yet
occurred.29
This approach can be criticised for its over-concentration upon rules
to the exclusion of other important elements in a legal system such as
principles and policies," and more especially as regards internationallaw, for failing to recognise the sophistication or vitality of the system.
In particular, the distinction between a system and a set of rules in thecontext of international law is a complex issue and one which is difficult
to delineate.
The strength of the positivist movement waned in the last century as
the old certainties disintegrated and social unrest grew. Law, as always,
began to reflect the dominant pressures of the age, and new theories as
to the role of law in society developed. Writers started examining theeffects of sociological phenomena upon the legal order and the natureof the legal process itself, with analyses of judicial behaviour and themeans whereby rules were applied in actual practice. This was typified
by Roscoe Pound's view of the law as a form of social engineering, balancing the various interests within the society in the most efficacious
way." Law was regarded as a method of social control and conceptual
approaches were rejected in favour of functional analyses. l a a t actually
happened within the legal system, what claims were being brought andhow they were satisfied: these were the watchwords of the sociological
It was in one sense a move away from the ivory tower and into the courtroom. Empirical investigations proliferated, particularly in the UnitedStates, and the sciences of psychology and anthropology as well as sociology became allied to jurisprudence. Such concern with the wider social
context led to the theories of Realism, which treated law as an institutionfunctioning within a particular community with a series of jobs to do. A
study of legal norms within a closed logical system in the Kelsenite vein
was regarded as unable to reveal very much of the actual operation oflaw in society. For this an understanding of the behaviour of courts andthe various legal officials was required. Historical and ethical factors wererelegated to a minor role within the realist-sociological tradition, with its

2'Concept o f l a w , pp. 228-31.

'2

Legal Structure, London, 1974, chapter 4.
Otltlines of Jt~risprudence,5th edn, Cambridge, 1943, pp. 116-19.

30

See Dworkin, Taking Rights Seriously.

" See e.g. Philosophy of Laiv, New Haven, 1954, pp. 42-7. See also M. D. A. Freeman, The

j2

I N T E R N A T I O N A L LAW

concentration upon field studies and 'technical' dissections. Legal rules
were no longer to be accepted as the heart of the legal system.33
Before one looks at contemporary developments of this approach andhow they have affected interpretations of international law, the revival of
Natural ~ a has
w first to be cbnsidered.
In the search for meaning in life and an ethical basis to law, Natural
Law has adopted a variety of different approaches. One of them has beena refurbishment of the principles enumerated by Aquinas and adopted by
the Catholic Church, emphasising the dignity of man and the supremacyof reason together with an affirmation of the immorality (though notnecessarily the invalidity) of law contrary to right reason and the eternal
law of ~ o d A. more
~ ~ formalistic and logic-oriented trend has been
exemplified by writers such as Stammler, who tried to erect a logicalstructure of law with an inbuilt concept of 'Natural Law with a changing
content'. This involved contrasting the concept of law, which was intended
to be an abstract, formal definition universally applicable, with the idea oflaw, which embodies the purposes and direction of the system. This latter
precept varied, of necessity, in different social and cultural context^.^'As distinct from this formal idealist school, there has arisen a sociologically inspired approach to the theme of Natural Law represented by
Geny and Duguit. This particular trend rejected the emphasis upon form,and concentrated instead upon the definition of Natural Law in termsof universal factors, physical, psychological, social and historical, which
dominate the framework of society within which the law operated.36
The discussion of Natural Law increased and gained in importancefollowing the Nazi experience. It stimulated a German philosopher,Radbruch, to formulate a theory whereby unjust laws had to be opposedby virtue of a higher, Natural ~ a w . ~ ~" See e.g. K. Llewellyn, The Conirnon Law Tradition, Boston, 1960, and Jnrispruderice,
Chicago, 1962. See also Mr. Twining, Karl Llewellyrz and tlle Realist Movement, London,
1973, and L. Loevinger, 'Jurirnetrics - The Next Step Forward', 33 Minnesota Latv Review,
1949, p. 455.
j4 See e.g. J. Maritain, Man and tlle State, Paris, 1951, and J. Dabin, General Theory of Latv,
2nd edn, 1950.
See e.g. R. Stammler, Theory ofJustice, New York, 1925, and G. Del Vecchio, Forrnal Baseso f l a w , Boston, 1921.
j6 See e.g. F. Geny, M6thode d'Irlterpr6tatiori et Sources en Droit Priv6 Positif; Paris, 1899, and
L. Duguit, Laiv in the modern State, New York, 1919, and 'Objective Law', 20 Coltlrnbia
Law Review, 1920, p. 817.
" Introduction to Legal Philosophy, 1947. See also Hart, 'Positivism'; Fuller, 'Positivism', andFuller, 'The Legal Philosophy of Gustav Radbruch: 6 Journal of Legal Education, 1954,
p. 481.

''

I N T E R N A T I O N A L LAW T O D A Y

53

As far as international law is concerned, the revival of Natural Law
came at a time of increasing concern with international justice and theformation of international institutions. Many of the ideas and principles
of international law today are rooted in the notion of Natural Law andthe relevance of ethical standards to the legal order, such as the principles
of non-aggression and human rights3'

N e w appr~ache?~
Traditionally, international law has been understood in a historical manner and studied chronologically. This approach was especially marked
in the nineteenth century as international relations multiplied and international conferences and agreements came with increasing profusion.
Between the world wars, the opening of government archives released a
wealth of material and further stimulated a study of diploinatic history,
while the creation of such international institutions as the League of Nations and the Permanent Court of International Justice encouraged an
appreciation of institutional processes.
However, after the Second World War a growing trend appeared intent
upon the analysis of power politics and the comprehension of international relations in terms of the capacity to influence and dominate. The
approach was a little more sophisticated than might appear at first glance,
for it involved a consideration of social and economic as well as political
data that had a bearing upon a state's ability to withstand as well as directpressure^.^' Nevertheless, it was a pessimistic interpretation because of its
centring upon power and its uses as the motive force of inter-state activity.
See H. Lauterpacht, International Latv and Human Rights, London, 1950. Note moregenerally the approach of J. Rawls, A Theory of Justice, Oxford, 1971, and A. LI'Amato,'Intenlational Law and Ratvls' Theory of Justice: 5 Denver Journal qfInternutiona1 Lutv andPolicy, 1975, p. 525. See also J. Boyle, 'Ideals and Things: International Legal Scholarshipand the Prison-house of Language: 26 Har.vard International Laiv Journnl, 1985, p. 327;
A. D'Amato, 'Is International Law Part of Natural Law?: 9 Veru Lex, 1989, p. 8 ; E. Midgley,
The Natural Latv Tradition and tlze Tlzeory of International Relations, London, 1975, and
C. Dominice, 'Le Grand Retour d u Droit Nature1 en Droit des Gens: Melanges Grossen,
1992, p. 399.
39 See e.g. B. S. Chimni, Irzteri~utionnlLatv and World Order, New Delhi, 1993; A. Cassese,
Iizternational Law, Oxford, 2001, chapter 1, and R. Miillerson, OrderiizgAizarclly: blterilational Law in International Society, The Hague, 2000.
40 See e.g. H. Morgenthau, Politics Among Nations, 4th edn, New York, 1967, and K. Thompson, Political Realism and the Crisis of World Politics: An American Appronch to Foreign
Policy, Princeton, 1960. See also A. Slaughter Burley, 'International Law and International
Relations Theory: A Dual Agenda', 87 AJIL, 1993, p. 205; R. Aron, Paix et Gtnerre Entre des18

54

I N T E R N A T I O N A L LAW

The next 'wave of advance', as it has been called, witnessed the successes of the behaviouralist movement. This particular train of thought
introduced elements of psychology, anthropology and sociology into
the study of international relations and paralleled similar developments
within the realist school. It reflected the altering emphasis from analyses
in terms of idealistic or cynical ('realistic') conceptions of the worldpolitical order, to a mechanistic discussion of the system as it operates
today, by means of field studies and other tools of the social sciences.
Indeed, it is more a method of approach to law and society than a theory
in the traditional s e n ~ e . ~ 'One can trace the roots of this school of thought to the changing conceptions of the role of government in society. The nineteenth-century
ethic of individualism and the restriction of state intervention to the veryminimum has changed radically. The emphasis is now more upon the responsibility of the government towards its citizens, and the phenomenal
growth in welfare legislation illustrates this. Rules and regulations controlling wide fields of human activity, something that would have been
unheard of in the mid-nineteenth century, have proliferated throughout
the nations of the developed world and theory has had to try and keep up
with such re-orientations.
Since the law now plays a much deeper role in society with the increasein governmental intervention, impetus has been given to legal theories thatreflect this growing involvement. Law, particularly in the United States, isseen as a tool to effect changes in society and realist doctrine underlines
this. It emphasises that it is community values and policy decisions that
determine the nature of the law and accordingly the role of the judge isthat much more important. He is no longer an interpreter of a body offormal legal rules, but should be seen more as an active element in making
decisions of public policy.
This means that to understand the operation of law, one has to consider
the character of the particular society, its needs and values. Law thus
becomes a dynamic process and has to be studied in the context of society
and not merely as a collection oflegal rules capable ofbeing comprehended
on their own. The social sciences have led the way in this reinterpretationof society and their influence has been very marked on the behavioural
hrationx, Paris, 1984; M . Koskenniemi, The Gentle Civilizer of Nationx, Cambridge, 2001,
chapter 6.
41 See e.g. Contending Approaches to International Politics (eds. K. Knorr and 1. Rosenau),
Prillcetoll 1969, and M! Gould and M. Barkun, International Law and the Social Sciences,
Princeton, 1970.

I N T E R N A T I O N A L LAW T O D A Y

55

method of looking at the law, not only in terms of general outlook but alsoin providing the necessary tools to dissect society and discover the way
it operates and the direction in which it is heading. The interdisciplinary
nature of the studies in question was emphasised, utilising all the social
sciences, including politics, economics and philosophy." In particular
the use of the scientific method, such as obtaining data and quantitative
analysis, has been very much in evidence.
Behaviouralism has divided the field of international relations into
basically two studies, the first being a consideration of foreign policy
techniques and the reasons whereby one particular course of action ispreferred to another, and the second constituting the international systems analysis approach." This emphasises the interaction of the various
players on the international stage and the effects of such mutual pressuresupon both the system and the participants. More than that, it examines
the various international orders that have existed throughout history in
an attempt to show how the dynamics of each particular system have created their own rules and how they can be used as an explanation of both
political activity and the nature 0.f international law. 1; other words, thenature of the international system can be examined by the use of particularvariables in order to explain and to predict the role of international law.
For example, the period between 1848 and 1914 can be treated as the era
ofthe 'balance of power' system. This system depended upon a number offactors, such as a minimum number of participants (accepted as five), who
would engage in a series of temporary alliances in an attempt to bolster
the weak and restrict the strong, for example the coalitions Britain enteredinto to overawe France. It was basic to this system that no nation wishedtotally to destroy any other state, but merely to humble and weaken, andthis contributed to the stability of the order.44
Note Barkun's comment that 'the past theoretical approaches of the legal profession have
involved logical manipulations of a legal corpus more often than the empirical study ofpatterns of human behaviour', Law Without Sanctions, New Haven, 1968, p. 3. See also
R. A. Falk, 'New Approaches to the Study of International Law', in Netv Approaches toInternational Relations (ed. M. A. Kaplan), New York, 1968, pp. 357-80, and J. Frankel,
Contemporary International Theory and the Bellavionr of States, London, 1973, pp. 21-2.
43 See e.g. C. A. A4cClelland, Theory and International Systems, 1966; M. A. Kaplan, Systenl
and Process in International Politics, New York, 1964; M. A. Kaplan and N. Katzenbach,
The Political Foundations of International Law, New York, 1961, and R. A. Falk and C.
Black, The Future of International Legal Order, 1969. See also A. Kiss and D. Shelton, 'Systems Analysis of International Law: A Methodological Inquiry', 17 Netherlands YIL, 1986,
p. 45.
See J. Frankel, International Relations in a Changing World, London, 1979, pp. 152-7, andKaplan and Katzenbach, Political Foundation, pp. 62-70.
42

"

56

I N T E R N A T I O N A L LAW

This system nurtured its own concepts of international law, especiallythat of sovereignty which was basic to the idea of free-floating alliances
and the ability of states to leave the side of the strong to strengthen the
weak. The balance of power collapsed with the First World War and, after
a period of confusion, a discernible, loose 'bipolar' system emerged in theyears following the Second World War.
This was predicated upon the polarisation of capitalism and communism and the consequent rigid alliances that were created. It included theexistence of a Third World of basically non-aligned states, the objects ofrivalry and of competition while not in themselves powerful enough to
upset the bipolar system. This kind of order facilitated 'frontier' conflicts
where the two powers collided, such as in Korea, Berlin and Vietnam,
as well as modified the nature of sovereignty within the two alliancesthus allowing such organisations as NATO and the European Community (subsequently European Union) on the one hand, and the Warsaw
Pact and COMECON on the other, to develop. The other side of thiscoin has been the freedom felt by the superpowers to control wavering
states within their respective spheres of influence, for example, the Soviet
actions in Poland, Hungary and Czechoslovakia and those of the USA
particularly within Latin ~ m e r i c a . ~ "Behaviouralism has been enriched by the use of such techniques asgames theory.46 This is a mathematical method of studying decisionmaking in conflict situations where the parties react rationally in the
struggle for benefits. It can be contrasted with the fight situation, where
the essence is the actual defeat of the opponent (for example, the IsraelArab conflict), and with the debate situation, which is an effort to convince
the participants of the rightness of one's cause. Other factors which aretaken into account include communications, integration, environmentand capabilities. Thus the range and complexity ofthis approach far exceeds that of prior theories.
All this highlights the switch in emphasis that has taken place in theconsideration of law in the world community. The traditional view was
Kaplan and Katzenbach, Political Fourzdatiorzs, pp. 50-5. As far as the systems approachis concerned, see also S. Hoffman, 'International Systems and International Law' in The
Internatiorzal Systern (eds. K. Knorr and S. Verba), Westport, 1961, p. 205; G. Clark and L.
Sohn, World Peace Throtlgh Mbrld Law, 3rd edn, Boston, 1966, and The Strategy o f World
Ordcr (eds. R. A. Falk and S. Mendlovitz), New York, 4 vols., 1966. See now Bobitt, Shicld,
Book 11.
46 See e.g. R. Lieber, Theory and World Politics, London, 1972, chapter 2; Game Theory
and Related Approaches to Social Behaviour (ed. H. Shubik), London, 1964, and W. J. M.
Mackenzie, Politics and Social Sciences, London, 1967.
4'

I N T E R N A T I O N A L LAW T O D A Y

57generally that international law constituted a series of rules restricting theactions of independent states and forming exceptions to state sovereignty.
The new theories tend to look at the situation differently, more fromthe perspective of the international order expanding its horizons than
the nation-state agreeing to accept certain defined limitations upon its
behaviour.
The rise of quantitative research has facilitated the collation and ordering of vast quantities of data. It is primarily a methodological approach
utilising political, economic and social data and statistics, and converting
facts and information into a form suitable for scientific investigation. Suchmethods with their behavioural and quantitative aspects are beginning to
impinge upon the field of international law. They enable a greater depth ofknowledge and comprehension to be achieved and a wider appreciationof all the various processes at work.4'
The behavioural approach to international relations has been translated into international law theory by a number of writers, in particular
Professor McDougal, with some important modifications. This 'policyorientated' movement regards law as a comprehensive process of decisionmaking rather than as a defined set of rules and obligations. It is an active
all-embracing approach, seeing international law as a dynamic system operating within a particular type of world order." It therefore minimises
the role played by rules, for such a traditional conception of international
law 'quite obviously offers but the faintest glimpse of the structures, procedures and types of decision that take place in the contemporary worldcommunity'." It has been emphasised that the law is a constantly evolving
process of decision-making and the way that it evolves will depend on theNote also the functionalist approach to international law. This orientation emphasises
the practical benefits to states of co-operation in matters of mutual interest: see e.g. It'.
Friedmann, A n Introduction to World Politics, 5th edn, London, 1965, p. 57; F. Haas,
Beyond the Nation State, Stanford, 1964; D. Mitrany, A Mbrking Peace System, London,
1946; C. W. Jenks, Law, Freedorrl and Welfare, London, 1964, and J. Stone, Legal Controls uf
International Conflict, London, 1959. See also D. Johnston, 'F~~nctionalism
in the Theoryof International Law', 25 Canadian YIL, 1988, p. 3.
48 See e.g. M. S. McDougal, 'International Law, Power and Policy', 82 HR, 1952,p. 133; M.S.
McDougal, H. Lasswell and W. M. Reisman, 'Theories about International Law: Prologue
to a Configurative Iurisprudence', 8 Va. IIL, 1968,p. 188; M. S. McDougal, 'International
Law and the Future', 50 ~WssissippiLaw Journal, 1979, p. 259, and H. Lasswell and M. S.
McDougal, Jurisprudencefor a Free Society, Yale, 1992. See also G. Scelle, Manuel de Droit
International, Paris, 1948, and Chimili, International Law, chapter 3.
M. S. McDougal and W. M. Reisman, International Law in Contemporur)) Perxpective, New
Haven, 1980, p. 5.
47

"

58

I N T E R N A T I O N A L LAW

knowledge and insight of the decision-maker.'' In other words, it is thesocial process of constant human interaction that is seen as critical andin this process, claims are continually being made in an attempt to maximise values at the disposal of the participants. Eight value-institution
categories have been developed to analyse this process: power, wealth,enlightenment, skill, well-being, affection, respect and rectitude. This list
may be further developed. It is not exhaustive. Law is to be regarded asa product of such social processes.5' International law is the whole process of authoritative decision-making involving crucially the concepts ofauthority and control. The former is defined in terms of the structureof expectation concerning the identity and competence of the decisionmaker, whilst the latter refers to the actual effectiveness of a decision,
whether or not authorised.j2
McDougal's work and that of his followers emphasises the long list ofvalues, interests and considerations that have to be taken into accountwithin the international system by the persons actually faced with making the decisions. This stress upon the so-called 'authoritative decisionmaker', whether he or she be in the United States Department of State,in the British Foreign Office or 'anyone whose choice about an event canhave some international ~ignificance',~~as the person who in effect has tochoose between different options respecting international legal principles,emphasises the practical world of power and authority.
Such a decision-maker is subject to a whole series of pressures andinfluences, such as the values of the community in which that person
operates, and the interests of the particular nation-state s e r v e d . - ~ eor
she will also have to consider the basic values of the world order, for instance human dignity. This approach involves a complex dissection of awide-ranging series of factors and firmly fixes international law within
the ambit of the social sciences, both with respect to the procedures
adopted and the tools of analysis. International law is seen in the following
terms, as" M. S. McDougal, 'The Policy-Oriented Approach to Law', 40 Virginia Quarterly Review,

1964, p. 626. See also E. Suzuki, 'The New Haven School of International Law: An Invitation
to a Policy-Oriented rurisprudence: 1 Yale Studies ill World Public Order; 1974, p. 1.
" Suzuki, 'Policy-Oriented Jurisprudence: pp. 22-3. See also M. S. McDougal, 'Some Basic
Theoretical Concepts about International Law: A Policy-Oriented Framework of Inquiry',
4 Journal of Conflict Resolution, 1960, pp. 337-54.
' 2 M. S. McDougal and H. Lasswell, 'The Identification and Appraisal of Diverse Systems of
Public Order: 53 AJIL, 1959, pp. 1, 9.
McDougal and Reisinan, International Laiv, p. 2.

"

I N T E R N A T I O N A L LAW T O D A Y

59

a comprehensive process of authoritative decision in which rules are continuously made and remade; that the function of the rules of internationallaw is to communicate the perspectives (demands, identifications and expectations) of the peoples of the world about this comprehensive processof decision; and that the national application ofthese rules in particular instances requires their interpretation, like that of any other communication,in terms of who is using them, with respect to whom, for what purposes(major and minor), and in what context.'"

Legal rules articulate and seek to achieve certain goals and this value
factor must not be ignored. The values elnphasised by this school arebasically those of human dignity, familiar from the concepts of Western
democratic society.""ndeed, Reisman has emphasised the Natural Law
origins of this approach as well as the need to clarify a jurisprudence forthose persons whose activities have led to innovations in such fields of international law as human rights and the protection of the environrnent5'j
The policy-oriented movement has been greatly criticised by traditional international lawyers for unduly rninimising the legal content of
the subject and for ignoring the fact that nations generally accept international law as it is and obey its dictate^.^' States rarely indulge in avast behavioural analysis, studiously considering every relevant element
in a particular case and having regard to fundamental objectives like human dignity and welfare. Indeed, so to do may weaken international law,
it has been argued.'' In addition, the insertion of such value-concepts
as 'human dignity' raises difficulties of subjectivity that ill fit within asupp osedly objective analytical structure. Koskenniemi, for example, has
drawn attention to the predilection of the policy-oriented approach tosupport the dominant power.j9
Other writers, such as Professor Falk, accept the basic comprehensive
approach of the McDougal school, but point to its inconsistencies andoverfulsome cataloguing of innumerable interests. They tend to adopt" 4.S. AlcDougal, 14 Footnote', 57 AJIL, 1963, p. 383.
See M. S. McDougal, H. Lasswell and L. C. Chen, Human Rights and Mbrld Public Order,
New Haven, 1980. For a discussion of the tasks required for a realistic inquiry in the lightof defined goals, see M. S. McDougal, 'International Law and the Future: pp. 259, 267.
' 6 'The View from the New Haven School of International Law', PASIL, 1992, p. 118.
j7 See in particular P. Allott, 'Language, Method and the Nature of International Law', 45
BYIL, 1971, p. 79. Higgins has vividly drawn attention to the differences in approach tointernational law adopted by American and British writers: 'Policy Considerations andthe International Judicial Process: 17 ICLQ, 1968, p. 58. See also T. Farer, 'Human Rights
in Law's Empire: The Jurisprudence War: 85 AJIL, 1991, p. 117.
" Allott, 'Language: pp. 128 ff.
jS See Gentle Civilizer ofNations pp. 474 ff.
j5

60

I N T E R N A T I O N A L LAW

a global outlook based upon a deep concern for human welfare andmorality, but with an emphasis upon the importance of legal rules andstr~cture.~'Professor Franck, however, has sought to refocus the essential questionof the existence and operation of the system of international law in termsof inquiring into why states obey international law despite the undeveloped condition of the international legal system's structures, processes
and enforcement me~hanisms.~'
The answer is seen to lie in the conceptof legitimacy. States will obey the rules because they see such rules andtheir institutional framework as possessing a high degree of legitimacy.
Legitimacy itself is defined as 'a property of a rule or rule-making institution which itself exerts a pull towards compliance on those addressed
normatively because those addressed believe that the rule or institution
has come into being and operates in accordance with generally accepted
principles of right process:62 Legitimacy may be empirically demonstrated
but compliance may be measured not only by observing states acting inaccordance with the principle in question, but also by observing the degree to which a violator actually exhibits deference to that principle evenwhile violating it.
Legitimacy will depend upon four specific properties, it is suggested:
determinacy (or readily ascertainable normative content or 'transparency'); symbolic validation (or authority approval); coherence (orconsistency or general application) and adherence (or falling within an
organised hierarchy of rules). In other words, it is proposed that there
exist objectively verifiable criteria which help us to ascertain why international rules are obeyed and thus why the system works. This approachis supplemented by the view that legitimacy and justice as morality are
two aspects of the concept of fairness, which is seen by Franck as themost important question for international law.63Franck, however, has"'See e.g. R. A. Falk, Hzlmrzn Rights and State Sovereignty, New York, 1981, and Fczlk, O n
Htlinan Governance, Cambridge, 1995. See also The United Nations and a Just Tliorld
Order (eds. R. Falk, S. Kim and S. Mendlovitz), Boulder, 1991, and Chimni, Internatioizal
Law, chapter 4. But note the approach of, e.g., J. S. Watson, 'A Realistic Jurisprudence ofInternational Law', 34 YBWA, 1980, p. 265, and M. Lane, 'Demanding Human Rights: A
Change in the World Legal Order', 6 Hofstra LLIIVReview, 1978, p. 269. See also Boyle,'Ideals and Things'.
61 T. M. Franck, The Power of Legitimacy Among Nations, Oxford, 1990. See also Franck,'Fairness in the International Legal and Institutional System', 240 HR, 1993 111, p. 13,
Oxford, 1995,
chapter 2 and Franck, Fairness in blter~lationalLaw and Ii~stit~~tiolls,
chapter 2.
Franck, Legitimacy, p. 24.
Franck, 'Fairness: p. 26.

''"

I N T E R N A T I O N A L LAW T O D A Y

61also drawn attention to the 'emerging right to i n d i v i d ~ a 1 i t ~ ' ~ h i t thehincontext of a 'global identity crisis'65in which the growth of supranational
institutions and the collapse of a range of states combine to undermine
traditional certainties of world order. He notes that persons are increasingly likely to identify themselves as autonomous individuals and that thisis both reflected and manifested in the rise and expansion of international
human rights law and in the construction of multi-layered and freely selected affinities bb While such personal rights are increasingly protectedin both national and international law, the question as to the appropriatebalancing of individual, group and state rights is posed in more urgent
form.
The recurring themes of the relationship between sovereign states andinternational society and the search for a convincing explanation for thebinding quality of international law in a state-dominated world appear
also inveryrecent approaches to international lawtheorywhich fall within
the general critical legal studies framework.67Such approaches have drawn
attention to the many inconsistencies and incoherences that persist within
the internationallegal system. The search for an all-embracing general theory of international law has been abandoned in mainstream thought as
being founded upon unverifiable propositions, whether religiously or sociologically based, and attention has switched to the analysis of particularareas of international law and in particular procedures for the settlementof disputes. The critical legal studies movement notes that the traditional
approach to international law has in essence involved the transposition of'liberal' principles of domestic systems onto the international scene, butthat this has led to further problems.68 Specifically, liberalism tries constantly to balance individual freedom and social order and, it is argued,
64

T. M. Franck, The Empowered Self; Oxford, 1999, p. 1.

"' Ibid., p. 3.

" Ibid., pp. 278-80.

67 See e.g. The Strmcttlre and Processes ofInternationa1 Law(eds. R. St J. Macdonald and D.
Johnston), Dordrecht, 1983; Boyle, 'Ideals andThings'; A. Carty, TheDecuy oflnternational
Law?A Reappraisal ofthe Limits ofLegal Imagination in Ii~ternationalAfairs, Manchester,
1986; D. Kennedy, Internatioizal Legal Strilcttlre, Boston, 1987; M . Koskenniemi, From
Apology to Utopia, Helsinki, 1989; F. 1: Kratochwil, Rules, Norins aizd Decisions: O n the
Coilditioizs of Practical and Legal Reasoiziizg in International Relations and Domestic Affairs, Cambridge, 1989; P. hllott, E L I I I O I ~Oxford,~ L I , 1990; Allott, The Health of Nations,Cambridge, 2002; Theory and Internatioizal Law: Aiz Introdtrctioiz (ed. Allott), London,
1991, and Iizterizational Law (ed. M. Koskenniemi), Aldershot, 1992. See also I. Scobbie,'Towards the Elimination of International Law: Some Radical Scepticism about ScepticalblternaRadicalism', 61 BYIL, 1990, p. 339, and S. Marks, The Riddle ofAll Constit~~tions:tional Law, Democracy and the Critique of Ideology, Cambridge, 2000.
68 See e.g. M. Koskenilieilli in International Law, p, xvi.

62

I N T E R N A T I O N A L LAW

inevitably ends up siding with either one or other of those proposition^.^^Additionally, there are only two possibilities with regard to justice itself,
it is either simply subjective or it is imposed. In either case, liberalism iscompromised as a system.
The critical legal studies approach notes the close relationship thatexists between law and society, but emphasises that conceptual analysis
is also crucial since such concepts are not in themselves independent
entities but reflect particular power relationships. The point is made thatthe nexus between state power and international legal concepts needs tobe taken into consideration as well as the way in which such concepts inthemselves reflect political factors. As Koskenniemi writes, 'a post-realist
theory.. . aims to answer questions regarding the relationship of law andsociety and the legitimacy of constraint in a world of sovereigns as aspectsof one single problem: the problem of power in concept^'.'^ The problem
posed by the growth in the world community and the need to consider therange of different cultures and traditions within that community leads, it
is suggested, to the decline of universality as such and the need to focus
upon the specific contexts of particular problems.
In a more recent work, Koskenniemi has drawn attention not onlyto thecontinuing tension between the universalist and particularist impulses ininternational law,'l but also to the related distinction between formalismand dynamism, or the contrast between rule-oriented and policy-oriented
approaches. It is his view in essence that the latter approach might too
easily be utilised to support a dominant political p ~ s i t i o n . ' ~It is the
typical lawyer's answer in any event to declare that all depends upon theparticular circumstances of the case and this approach is generalised inorder to deal with the question of which of several relevant internationalrules is to predominate. It is in fact a way ofnoting that superior operating
principles are difficult to find or justify and thus concluding that the
search for universal concepts or principles is of little value. In effect, itis proposed that no coherent international system as such actually exists
and that one should rather concentrate upon ad hoc legal concepts asreflecting power considerations and within the confines of the specificcontexts in which the particular questions or issues have arisen. Like thepolicy-oriented approach, the critical legal studies view is to accept that6"~skeniliemi, From Apology to Utopia, p. 52.
O'
Ibid.,p. mi.
See also M. Eyskens, 'Particularism versus Universalism' in International Latv - Theory andPractice (ed. K . Wellens), The Hague, 1998, p. 11.
Gentle Civilizer of Nations.

''I N T E R N A T I O N A L LAW T O D A Y

63international law is more than a set of rules, but it then proceeds toemphasise the indeterminacy as such of law rather than seeing law as acollection of competing norms between which choices must be made.73
One particular area of study in recent years has been that concerned withthe position of women within international law, both in terms of thestructure of the system and the, for example, relative absence of females
from the institutions and processes of international law and in terms of
substantive law, which has until recently paid little attention to the needs
and concerns of women.74
The range of theories and approaches to international law and not least
the emphasis upon the close relationship between international law andinternational relations7' testifies both to the importance of the subject
and the inherent difficulties it faces. International law is clearly much
more that a simple set of rules. It is a culture in the broadest sense in thatit constitutes a method of communicating claims, counter-claims, expectations and anticipations as well as providing a framework for assessing
and prioritising such demands.
International law functions in a particular, concrete world system, involving a range of actors from states to international organisations, companies and individuals, and as such needs to be responsive to the needs
and aspirations of such participants. Law is not the only way in whichissues transcending borders are negotiated and settled or indeed fought
over. It is one of a number of methods for dealing with an existing complex
and shifting system, but it is a way of some prestige and influence for it is" See Higgins, Problems and Process, p. 9.
TheBoilndaries ofIntevnationa1Law: A Feminist Analysis, blanchester, 2000; H . Charlesworth, C. M. Chinkin and S. Wright, 'Feminist
Approaches to International Law', 85 AJIL, 1991, p. 613, and F. Teson, 'Feminism and In-

74 See e.g. H. Charlesworth and C. A'f. Chinkin,ternational Law: A Reply', 33 Va. JIL, 1993, p. 647. See also the 'Final Report on TITomen's
Equality and Nationality in International Law' in Report the Sixty-Ninth Conference,
International Law Association, London, 2000, p. 248. Note that article 25(2) of the Rulesof the European Court of Human Rights requires that the Sections ofthe Court be 'genderbalanced', while article 36(8)a(iii)of the Statute of the International Criminal Court 1998
declares that the selection process for judges of the Court should include the need for a'fair representation of female and male judges'. See also ICC-ASP111Res.- 2 (2002) on theprocedure for nomination of judges which required a minimum number of female andmale candidates.
" See e. g. A,-M. Slaughter, A. S. Tulumello and S. Wood, 'International La~vandInternational
Relations Theory: A New Generation of Interdisciplinary Scholarship: 92 AJIL, 1998, p.
367. See also Bobbitt, Shield, who posits the dying of the nation-state and its replacementby the market-state with consequential changes with regard to both international law and
its institutions, e.g. pp. 353 ff. and 667 ff.

of

64

I N T E R N A T I O N A L LAW

of its very nature in the form of mutually accepted obligations. Law andpolitics cannot be divorced. They are not identical, but they do interact
on several levels. They are engaged in a crucial symbiotic relationship. It
does neither discipline a service to minimise the significance of the other.
Suggestions for further reading
H. Charlesworth and C. Chinkin, The Boznndaries of International Law: A Feminist
Analysis, Manchester, 2000
T. M. Franck, Fairness in International Law and Institutions, Oxford, 1995
T.M. Franck, The Empowered Self; Oxford, 1999
M . Koskenniemi, The Gentle Civilizer of ivations, Cambridge, 2001
S. Marks, The Riddle of All Constitutions: International Law, Democracy and the
Critique of Ideology, Cambridge, 2000
R. hliillerson, Ordering Anarchy: International Law in International Society, The
Hague, 2000

Sources

Ascertainment of the law on any given point in domestic legal orders
is not usually too difficult a process.' In the English legal system, forexample, one looks to see whether the matter is covered by an Act ofParliament and, if it is, the law reports are consulted as to how it has
been interpreted by the courts. If the particular point is not specificallyreferred to in a statute, court cases will be examined to elicit the required
information. In other words, there is a definite method of discovering
what the law is. In addition to verifying the contents of the rules, thismethod also demonstrates how the law is created, namely, by parliamentary legislation or judicial case-law. This gives a degree of certainty to thelegal process because one is able to tell when a proposition has becomelaw and the necessary mechanism to resolve any disputes about the law
is evident. It reflects the hierarchical character of a national legal orderSee generally C. Parry, The Sources and Evidences oflnternational Law, Cambridge, 1965; M .
Ssrensen, Les Sotlrces deDroitInternationa1, Paris, 1946; V. D. Degan, Sources oflnterriationalLaw, The Hague, 1997; Oppenheinl's biternational Law (eds. R.Y. Jennings and A. D. J\'atts),
9th edn, London, 1992, p. 22; I. Brownlie, Principles of Public International Laiv, 5th edn,
Oxford, 1998, chapter 1; Nguyen Quoc Dinh, P. Daillier and A. Pellet, Droit International
Public, 7th edn, Paris, 2002, p. 111; G. M. Danilenko, Law-Making in the I~iterfiational
Cottzmunity, The Hague, 1993; G. I. Tunkin, Theory of International Law, London, 1974,
pp. 89-203; J. W. ITerzijl,International Law iri Historicalperspective, Leiden, 1968, vol. I, p. 1;
H. Lauterpacht, Internatiotlal Law: Collected Papers, Cambridge, 1970, vol. I, p. 58; Change
atid Stability in International Lax)-Making (eds. 4. Cassese and J. \tTeiler),Leiden, 1988;
A. Bos, A Methodology of International Law, Amsterdam, 1984; A. Cassese, InternationalLaw, Oxford, 2001, chapters 6 and 7; M. Virally, 'The Sources of International Law' inMatztral ofPtlblicInternationa1 Laiv (ed. M. Snrensen),London, 1968, p. 116; C. Tomuschat,'Obligations Arising for States Without or Against Their Mrill', 241 HR, 1993, 17. 195; B.
Simma, 'From Bilateralism to Community Interest in International Law: 250 HR, 1994, p.
219; M. Mendelson, 'The International Court of rustice and the Sources of International
Law' in Fifty Years of the International Court ofJustice (eds. A. 1: Lowe and M. Fitzmaurice),
Cambridge, 1996, p. 63; G. Abi-Saab, 'Les Sources du Droit International - Un Essai de
Deconstruction' in Le Droit International dans un Monde en Mt~tation,Montevideo, 1994,
p. 29, and 0 . Schachter, 'Recent Trends in International Law-Making', 12 Australian YIL,
1992.

66

I N T E R N A T I O N A L LAW

with its gradations of authority imparting to the law a large measure ofstability and predictability.
The contrast is very striking when one considers the situation in international law. The lack of a legislature, executive and structure of courts
within international law has been noted and the effects of this will become
clearer as one proceeds. There is no single body able to create laws internationally binding upon everyone, nor a proper system of courts withcomprehensive and compulsory jurisdiction to interpret and extend thelaw. One is therefore faced with the problem of discovering where thelaw is to be found and how one can tell whether a particular proposition amounts to a legal rule. This perplexity is reinforced because of theanarchic nature of world affairs and the clash of competing sovereignties. Nevertheless, international law does exist and is ascertainable.
There are 'sources' available from which the rules may be extracted andanalysed.
By 'sources' one means those provisions operating within the legal
system on a technical level, and such ultimate sources as reason or morality
are excluded, as are more functional sources such as libraries and journals.
What is intended is a survey of the process whereby rules of internationallaw emerge 2
Article 38(1) of the Statute of the International Court of Justice iswidely recognised as the most authoritative statement as to the sources ofinternational law.3 It provides that:s

the Court, whose function is to decide in accordance with international law
such disputes as are submitted to it, shall apply:(a) iiiteriiational conventions, whether general or particular, establishingrules expresslyrecognised by the contesting states; (b) international custom,
as evidence of a general practice accepted as law; (c) the general principles
oflaw recognised by civilised nations; (d) subject to the provisions ofArticle
59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination ofrules of law.

Although this formulation is technically limited to the sources of international law which the International Court must apply, in fact since the' See also, e.g., M. S. McDougal and \V, M. Reisman, 'The Prescribing Function: How International Law is Made', 6 Yale Studies in Iliorld Pllblic Order, 1980, p. 249.
Hudson,See e.g. Brownlie, Principles, p. 3; Oppenheiiiz's Ii~terizutionalLatv, p. 24, and M. 0.
The Permaneizt Court ofInternatioila1 Illstice, New York, 1934, pp. 601 ff.

function of the Court is to decide disputes submitted to it 'in accordancewith international law' and since all member states of the United Nations
are ipso facto parties to the Statute by virtue of article 93 of the United
Nations Charter (states that are non-members of the UN can specifically
become parties to the Statute of the Court: Switzerland was the most obvious example of this until it joined the UN in 2002), there is no serious
contention that the provision expresses the universal perception as to theenumeration of sources of international law.
Some writers have sought to categorise the distinctions in this provision, so that international conventions, custom and the general principlesof law are described as the three exclusive law-creating processes while judicial decisions and academic writings are regarded as law-determining
agencies, dealing with the verification of alleged rules.4 But in reality
it is not always possible to make hard and fast divisions. The different
functions overlap to a great extent so that in many cases treaties (or conventions) merely reiterate accepted rules of customary law, and judgmentsof the International Court of Justice may actually create law in the same
way that municipal judges formulate newlaw in the process ofinterpreting
existing 1aw.j
A distinction has sometimes been made between formal and material s o ~ r c e sThe
. ~ former, it is claimed, confer upon the rules an obligatory character, while the latter comprise the actual content of the rules.
Thus the formal sources appear to embody the constitutional mechanism
for identifying law while the material sources incorporate the essence or
subject-matter of the regulations. This division has been criticised particularly in view of the peculiar constitutional set-up of internationallaw, and it tends to distract attention from some of the more important problems by its attempt to establish a clear separation of substantive
and procedural elements, something difficult to maintain in internationallaw.

' See e.g. G. Schwarzenherger, International Law, 3rd edn, London, 1957, vol. I, pp.
26-7.
There are a nuillher of exaillples of this: see below, chapter 4, p. 128.
See e.g. Brownlie, Principles, p. 1. See also Nguyen Quoc Dinh et al., Droit International
Public, pp. 111-12, where it is noted that 'les sources fort~lellesdu droit sont les proctdes
d'elaboration du droit, les diverses techniques qui autorisent a considerer qu'une rPgle
nppartieilt au droit positif. Les sources rnaterielles constituent les foildeinents sociologiquesdes normes internationales, leur base politique, morale ou economique plus ou moins
explicitee par la doctrine ou les s ~ ~ j edu
t s droit.'I N T E R N A T I O N A L LAW

Introduction
In any primitive society certain rules of behaviour emerge and prescribe
what is permitted and what is not. Such rules develop almost subconsciously within the group and are maintained by the members of thegroup by social pressures and with the aid of various other more tangible
implements. They are not, at least in the early stages, written down or
codified, and survive ultimately because of what can be called an aura of
historical legitimacy.$ As the community develops it will modernise its
code of behaviour by the creation of legal machinery, such as courts andlegislature. Custom, for this is how the original process can be described,
See generally, A. D'Amato, The Concept of Custoin in International Law, Cornell, 1971; M.
Akehurst, 'Custom as a Source of Internatioilal Law', 47 BYIL, 1974-5, p. 1; M. Mendelson,'The Formation of Customary International Law', 272 HR, 1999, p. 159; B. Cheng, 'Custom: The Future of General State Practice in a Divided World' in The Structure and Processofblter~lationalLaw (eds. R. St J. hlacdonald and D. rohnston), Dordrecht, 1983, p. 513;
H. Thirlway International C~lstomaryLatv and Codification, Leiden, 1972; K. Ilrolfke, Custom in Present International Laiv, 2nd edn, 1993, and T\Tolfke,'Some Persistent Controversies Regarding Customary International Lam.: Netherlands YIL, 1993, p. 1; L. Kopelmanas,'Custom as a hfeans of the Creation of International Law', 18 BYIL, 1937, p. 127; H. Lauterpacht, The Development of International Law by the International Court, Cambridge, 1958,
pp. 368-93; 1. Kunz, 'The Nature of Customary International Law', 47 AIIL, 1953, p. 662;
R. J. Dupuy, 'Coutume Sage et Coutume Sauvage: ~\@langesRousseau, Paris, 1974, p. 75; B.
Stern, 'La Coutume au Coeur du Droit International: Melanges Reuter, Paris, 1981, p. 479;
R. Y. rennings, 'Law-Making and Package Deal: Milanges Reuter, p. 347; G. Danilenko, 'The
Theory of International Customary Law', 31 German YIL, 1988, p. 9; Barberis, 'Reflexionss m la Coutume Internationale: AFDI, 1990, p. 9; L. Condorelli, 'Custom' in International
Law: Achievements and Perspectives (ed. M . Bedjaoui), Paris, 1991, p. 206; M. Byers, 'Custom, Power and the Power of Rules', 17 Michigan Jotlrnal ofInternationa1 Law, 1995, p. 109;
H. Thirlway, 'The Law and Procedure of the International Court of Justice: 1960-89 (Parttwo)', 61 BYIL, 1990, pp, 3, 31; P. M. Dupuy, 'Theorie des Sources et Coutume en Droit
International Contemporain' in Le Uroit International dans un Monde en Mutation, Montevideo, 1994, p, 51; D. P.Fidler, 'Challenging the Classic Conception of Custom', German
YIL, 1997, p. 198; R. Miillerson, 'On the Nature and Scope of Customary International La~v:
Austrian Revietv oflnternntional and Ellropean Lnw, 1998, p. 1; M. Byers, Custom, Poiverand the Potver ofRtlles, Cambridge, 1999, and A. Carty, The Decay of International Law?,~Manchester,1986, chapter 3. See also the 'Statement of Principles Applicable to the Formation of General Customary International Law' in Report ofthe Sixty-Ninth Conference,
International Law Association, London, 2000, p. 713.
See e.g. R. Unger, Law in Modern Society, London, 1976, who notes that customary law
can be regarded as 'any recurring mode of interaction among individuals a i d groups,
together with the more or less explicit acknowledgement by these groups and individuals
that such patterns of interaction produce reciprocal expectatioils of conduct that ought tobe satisfied', p. 49. See also R. Dias, Jtnrisprt~deizce,5th edn, London, 1985, chapter 9, and
H. L. A. Hart, The Concept of Law, Oxford, 1961.

SOURCES

69

remains and may also continue to e v ~ l v eIt. ~is regarded as an authentic expression of the needs and values of the community at any giventime.
Custom within contemporary legal systems, particularly in the developed world, is relatively cumbersome and unimportant and often of only
nostalgic value.'' In international law on the other hand it is a dynamic
source of law in the light of the nature of the international system and its
lack of centralised government organs.
The existence of customary rules can be deduced from the practiceand behaviour of states and this is where the problems begin. How can
one tell when a particular line of action adopted by a state reflects a legal
rule or is merely prompted by, for example, courtesy? Indeed, how can
one discover what precisely a state is doing or why, since there is no living'state' but rather thousands of officials in scores of departments exercising
governmental functions? Other issues concern the speed of creation of
new rules and the effect of protests.
There are disagreements as to the value of a customary system in international law. Some writers deny that custom can be significant today
as a source of law, noting that it is too clumsy and slow-moving to accommodate the evolution of international law any more," while others
declare that it is a dynamic process of law creation and more important
than treaties since it is of universal application.12Another view recognisesthat custom is of value since it is activated by spontaneous behaviour andthus mirrors the contemporary concerns of society. However, since international law now has to contend with a massive increase in the pace andvariety of state activities as well as having to come to terms with manydifferent cultural and political traditions, the role of custom is perceived
to be much diminished.I3
There are elements of truth in each of these approaches. Amidst a wide
variety of conflicting behaviour, it is not easy to isolate the emergence ofa new rule of customary law and there are immense problems involved incollating all the necessary information. It is not always the best instrument
See e.g. D. Lloyd, Introduction to Jurisprudence, 4th edn, London, 1979, p. 649, and
H. Maine, Ancient LUIV,London, 1861.
l o See e.g. Dias, Jurisprudence.
l 1 See e.g. h\'. Friedmann, The Changing Structure of International Law, New York, 1964, pp.
121-3. See also I. De Lupis, The Concept oflnternationul Law, Aldershot, 1987, pp. 112-16.
E.g. D'Amato, Concept of Cllstorn, p. 12.
l3 C. De Visscher, Theory und Reality in Public Iizterizutional Luw, 3rd edn, Princeton, 1960,
pp. 161-2.

''

70

I N T E R N A T I O N A L LAW

available for the regulation of complex issues that arise in world affairs,
but in particular situations it may meet the contingencies of modern life.
As will be seen, it is possible to point to something called 'instant' customary law in certain circumstances that can prescribe valid rules without
having to undergo a long period of gestation, and custom can and often
does dovetail neatly within the complicated mechanisms now operating
for the identification and progressive development of the principles ofinternational law.
More than that, custom does mirror the characteristics of the decentralised international system. It is democratic in that all states may sharein the formulation of new rules, though the precept that some are moreequal than others in this process is not without its grain of truth. If the international community is unhappy with a particular law it can be changed
relatively quickly without the necessity of convening and successfully completing a world conference. It reflects the consensus approach to decisionmaking with the ability of the majority to create new law binding upon all,while the very participation of states encourages their compliance withcustomary rules. Its imprecision means flexibility as well as ambiguity.
Indeed, the creation of the concept of the exclusive economic zone in thelaw of the sea may be cited as an example of this process. This is discussed
further in chapter 11. The essence of custom according to article 38 isthat it should constitute 'evidence of a general practice accepted as law:Thus, it is possible to detect two basic elements in the make-up of a custom. These are the material facts, that is, the actual behaviour of states,
and the psychological or subjective belief that such behaviour is 'law'. As
the International Court noted in the Libya/Multu case, the substance ofcustomary law must be 'looked for primarily in the actual practice andopinio juris of states'.14
It is understandable why the first requirement is mentioned, since customary law is founded upon the performance of state activities and theconvergence of practices, in other words, what states actually do. It is thepsychological factor (opinio juris) that needs some explanation. If one left
the definition of custom as state ~racticethen one would be faced with the
problem of how to separate international law from principles of morality
or social usage. This is because states do not restrict their behaviour towhat is legally required. They may pursue a line of conduct purely throughl 4 ICJ Reports, 1985, pp. 13, 29; 81 ILR, p. 239. See also the Advisory

Opinion on the

Legalitj~of the Threat or Uxe ofAiuclear Mieapon.c, ICJ Reports, 1996, pp. 226,253; 110 ILR,
p. 163.

a feeling of goodwill and in the hope of reciprocal benefits. States do nothave to allow tourists in or launch satellites. There is no law imposing
upon them the strict duty to distribute economic aid to developing nations. The bare fact that such things- are done does not mean that they
have to be done.
The issue therefore is how to distinguish behaviour undertaken becauseof a law from behaviour undertaken because of a whole series of otherreasons ranging from goodwill to pique, and from ideological support topolitical bribery. And if customary law is restricted to the overt acts ofstates, one cannot solve this problem.
Accordingly, the second element in the definition of custom has been
elaborated. This is the psychological factor, the belief by a state that behaved in a certain way that it was under a legal obligation to act thatway. It is known in legal terminology as opinio juris sive necessitatis andwas first formulated by the French writer Franqois Geny as an attempt todifferentiate legal custom from mere social usage.15
However, the relative importance ofthe two factors, the overt action andthe subjective conviction, is disputed by various writers.16 Positivists, with
their emphasis upon state sovereignty, stress the paramount importanceof the psychological element. States are only bound by what they haveconsented to, so therefore the material element is minimised to the greater
value of opinio juris. If states believe that a course of action is legal andperform it, even if only once, then it is to be inferred that they havetacitly consented to the rule involved. Following on from this line ofanalysis, various positivist thinkers have tended to minimise many of
the ;equirements bf the overt manifestation, for example, with regard torepetition and duration.17 Other writers have taken precisely the opposite
line and maintain that opinio juris is impossible to prove and thereforeof no tremendous consequence. Kelsen, for one, has written that it is thecourts that have the discretion to decide whether any set of usages is suchas to create a custom and that the subjective perception of theparticularIs

Mithode d'lnterpretation et Sources en Droit Privd Posit8 1899, para. 110.

l6 See e.g. R. Miillerson, 'The Interplay of Objective and Subjective Elements in Customary

Law' in International Law- Theory and Practice (ed. K . TITellens),The Hague, 1998, p. 161.
l7 See e.g. D. Anzilotti, Corso di Diritto Ir~ternazionale,3rd edn, 1928, pp. 73-6; K. Strupp, 'Les

Regles Generales du Droit International de la Paix: 47 HR, 1934, p. 263; Tunkin, Theory ofInternational Law, pp. 113-33, and 'Remarks on the Juridical Nature of Customary Norms
of International Law: 49 California Laiv Review, 1961, pp. 419-21, and B. Cheng, 'United
Nations Resolutions on Outer Space: "Instant" International Customary Law?: 5 Indian
Journal ofInternationa1 Law, 1965, p. 23.

72

I N T E R N A T I O N A L LAW

state or states is not called upon to give the final verdict as to its legality
or not.''T h e material fact
The actual practice engaged in by states constitutes the initial factor to
be brought into account. There are a number of points to be considered
concerning the nature of a particular practice by states, including its duration, consistency, repetition and generality. As far as the duration isconcerned, most countries specify a recognised time-scale for the acceptance of a practice as a customary rule within their municipal systems.
This can vary from 'time immemorial' in the English common law datingback to 1189, to figures from thirty or forty years on the Continent.
In international law there is no rigid time element and it will depend
upon the circumstances ofthe case and the nature ofthe usage in question.
In certain fields, such as air and space law, the rules have developed quickly;
in others, the process is much slower. Duration is thus not the mostimportant of the components of state practice.19 The essence of custom
is to be sought elsewhere.
The basic rule as regards continuity and repetition was laid down in
the Asylum case decided by the International Court of Justice (ICJ) in
1950.~'The Court declared that a customary rule must be 'in accordancewith a constant and uniform usage practised by the States in question'.21
The case concerned Haya de la Torre, a Peruvian, who was sought by
his government after an unsuccessful revolt. He was granted asylum by
Colombia in its embassy in Lima, but Peru refused to issue a safe conduct
to permit Torre to leave the country. Colombia brought the matter before
the International Court of Justice and requested a decision recognisingthat it (Colombia) was competent to define Torre's offence, as to whether'' Theorie du Droit International Coutumier: 1 Revue International de la Theorie du Droit,
1939, pp. 253, 264-6. See also P. Guggenheim, Traite de Droit International Public,
Paris, 1953, pp. 46-8; T. Gihl, 'The Legal Character of Sources of International Law',
1 Scandinavian Studies in Lau: 1957, pp. 53, 84, and Oppenheinz's International Laiu, pp.
27-31.
l Y See D'Amato, Concept of Custom, pp. 56-8 and Akehurst, 'Custom as a Source', pp. 15-16.
Judge Negulesco in an unfortunate phrase emphasised that custom required immemorialusage: Etlropean Corr~rnissionof the Dant~be,PCIT, Series B, No. 14, 1927, p. 105. See also
Brownlie, Principles, p. 5, and the North Sea Continental Shelfcases, ICJ Reports, 1969,
pp. 3,43; 41 ILR, pp. 29, 72.
' O ICJ Reports, 1950, p. 266; 17 ILR, p. 280.
ICJ Reports, 1950, pp. 276-7; 17 ILR, p. 284.

''

it was criminal as Peru maintained, or political, in which case asylum anda safe conduct could be allowed.
The Court, in characterising the nature of a customary rule, held thatit had to constitute the expression of a right appertaining to one state(Colombia) and a duty incumbent upon another (Peru). However, theCourt felt that in the Asylum litigation, state practices had been so uncertain and contradictory as not to amount to a 'constant and uniform
usage' regarding the unilateral qualification of the offence in question.22
The issue involved here dealt with a regional custom pertaining only toLatin America and it may be argued that the same approach need notnecessarily be followed where a general custom is alleged and that in thelatter instance a lower standard of proof would be upheld.23
The ICJ emphasised its view that some degree of uniformity amongst
state practices was essential before a custom could come into existencein the Anglo-Norwegian Fisheries case.'4 The United Kingdom, in its
arguments against the Norwegian method of measuring the breadth of
the territorial sea, referred to an alleged rule of custom whereby a straightline may be drawn across bays of less than ten miles from one projection to the other, which could then be regarded as the baseline for themeasurement of the territorial sea. The Court dismissed this by pointing
out that the actual practice of states did not justify the creation of any
such custom. In other words, there had been insufficient uniformity of
behaviour.
which involved a dispute
In the North Sea Continental Shelf~ases,~'
between Germany on the one hand and Holland and Denmark on theother over the delimitation of the continental shelf, the ICJ remarked
that state practice had to be 'both extensive and virtually uniform in thesense of the provision invoked'. This was held to be indispensable to theformation of a new rule of customary international law.26However, theCourt emphasised in the Nicaragua v. United States case27that it was notnecessary that the practice in question had to be 'in absolutely rigorous
conformity' with the purported customary rule. The Court continued:" Ibid.

23 See further below, p. 87.
Reports, 1951, pp. 116, 131 and 138; 18 ILR, p. 86.
25 ICI Reports, 1969,p. 3; 41 ILR, p. 29.
26 ICJ Reports, 1969, p. 43; 41 ILR, p. 72. Note that the Court was dealing with the creationof a custom on the basis of what had been purely a treaty rule. See Akehurst, 'Custom as a
Source', p. 21, especially footnote 5. See also the Paquete Habana case, 175 US 677 (1900)
and the Lotus case, PCIJ, Series A, No. 10, 1927, p. 18; 4 AD, p. 153.
ICJ Reports, 1986, p. 14; 76 ILR, p. 349.

"' CJ

''

74

I N T E R N A T I O N A L LAW

In order to deduce the existence of customary rules, the Court deems it
sufficient that the co~lductof states should, in general, be consistent withsuch rules, and that instances of state conduct inconsistent with a given
rule should generally have been treated as breaches of that rule, not as
indications of the recognition of a new

The threshold that needs to be attained before a legally binding custom can be created will depend both upon the nature of the alleged ruleand the opposition it arouses. This partly relates to the problem of ambiguity where it is not possible to point to the alleged custom with any
degree of clarity, as in the Asylum case where a variety of conflicting andcontradictory evidence had been brought forward.
On the other hand, an unsubstantiated claim by a state cannot be
accepted because it would amount to unilateral law-making and compromise a reasonably impartial system of international law. If a proposition
meets with a great deal of opposition then it would be an undesirable
fiction to ignore this and talk of an established rule. Another relevant
factor is the strength of the prior rule which is purportedly o ~ e r t h r o w n . ~ ~For example, the customary law relating to a state's sovereignty over its
airspace developed very quickly in the years immediately before and during the First World War. Similarly, the principle of non-sovereignty overthe space route followed by artificial satellites came into being soonafter the launching of the first sputniks. Bin Cheng has argued thatin such circumstances repetition is not at all necessary provided theopinio juris could be clearly established. Thus, 'instant' customary law isp~ssible.~'This contention that single acts may create custom has been criticised,particularly in view of the difficulties ofproving customary rules any otherway but through a series of usage^.^' Nevertheless, the conclusion must bethat it is the international context which plays the vital part in the creationof custom. In a society constantly faced with new situations because of the
dynamics of progress, there is a clear need for a reasonably speedy methodof responding to such changes by a system of prompt rule-formation. In
new areas of law, customs can be quickly established by state practices by
ICI Reports, 1986, p. 98; 76 ILR, p. 432.
See D'Amato, Concept of Custom, pp. 60-1, and Akehurst, 'Custoin as a Source', p. 19. See
Fisheries case, ICJ Reports, 1951, pp. 116, 152; 18
also Judge Alvarez, the Anglo-hTor~vegian
ILR, pp. 86, 105, and Judge Loder, the Lotus case, PCIJ, Series A, No. 10, 1927, pp. 18,34.
30 Cheng, 'United Nations Resolutions'.
See e.g. Nguyen Quoc Diilh et al., Droit International Public, pp. 325-6.
'9''virtue of the newness of the situations involved, the lack of contrary rules
to be surmounted and the overwhelming necessity to preserve a sense ofregulation in international relations.
One particular analogy that has been used to illustrate the generalnature of customary law was considered by de Visscher. He likened thegrowth of custom to the gradual formation of a road across vacant land.
After an initial uncertainty as to direction, the majority of users begin tofollow the same line which becomes a single path. Not long elapses before
that path is transformed into a road accepted as the only regular way,even though it is not possible to state at which precise moment this latterchange occurs. And so it is with the formation of a custom. De Visscher
develops this idea by reflecting that just as some make heavier footprints
than others due to their greater weight, the more influential states of theworld mark the way with more vigour and tend to become the guarantors
and defenders of the way forward.32
The reasons why a particular state acts in a certain way are varied but areclosely allied to how it perceives its interests. This in turn depends upon
the power and role of the state and its international standing. Accordingly,
custom should to some extent mirror the perceptions of the majority ofstates, since it is based upon usages which are practised by nations as theyexpress their power and their hopes and fears. But it is inescapable thatsome states are more influential and powerful than others and that theiractivities should be regarded as of greater significance. This is reflected ininternational law so that custom may be created by a few states, provided
those states are intimately connected with the issue at hand, whether
because of their wealth and power or because of their special relationshipwith the subject-matter of the practice, as for example maritime nations
and sea law. Law cannot be divorced from politics or power and this is
one instance of that p r o p ~ s i t i o n . ~ ~The influence ofthe United Kingdom, for example, on the developmentof the law of the sea and prize law in the nineteenth century when it wasat the height of its power, was predominant. A number of propositions
later accepted as part of international customary law appeared this way.
Among many instances of this, one can point to navigation procedures.

'' De T7isscher,Theory and Reality, p. 149. See also Lauterpacht, Development ofIrlterrlationa1
Lnw, p. 368; P. Cobbett, Leuding Cuses on Irlternutionnl Law, 4th edn, 1922, p. 5, andAkehurst, 'Custom as a Source', pp. 22-3.
33 See e.g. the North Seu Continentnl Shelfcases, ICJ Reports, 1969, pp. 3, 42-3; 41 ILR, pp.
29, 71-3.

76

I N T E R N A T I O N A L LAW

Similarly, the impact of the Soviet Union (now Russia) and the UnitedStates on space law has been paramount.34
One can conclude by stating that for a custom to be accepted andrecognised it must have the concurrence of the major powers in thatparticular field. A regulation regarding the breadth of the territorial sea
is unlikely to be treated as law if the great maritime nations do not agree
to or acquiesce in it, no matter how many landlocked states demand it.
Other countries may propose ideas and institute pressure, but without
the concurrence of those most interested, it cannot amount to a rule ofcustomary law. This follows from the nature of the international system
where all may participate but the views of those with greater power carrygreater weight.
Accordingly, the duration and generality of a practice may take second
place to the relative importance of the states precipitating the formationof a new customary rule in any given field. Universality is not required,but some correlation with power is. Some degree of continuity must be
maintained but this again depends upon the context of operation and thenature of the usage.
Those elements reflect the external manifestations of a practice andestablish that it is in existence and exhibited as such. That does not meanthat it is law and this factor will be considered in the next subsection. But
it does mean that all states who take the trouble can discover its existence.
This factor of conspicuousness emphasises both the importance of thecontext within which the usage operates and the more significant elementsof the overt act which affirms the existence of a custom.
The question is raised at this stage of how significant a failure to act is.
Just how important is it when a state, or more particularly a major state,
does not participate in a practice? Can it be construed as acquiescencein the performance of the usage? Or, on the other hand, does it denoteindifference implying the inability of the practice to become a custom
until a decision one way or the other has been made? Failures to act are inthemselves just as much evidence of a state's attitudes as are actions. They
similarly reflect the way in which a nation approaches its environment.
Britain consistently fails to attack France, while Chad consistently fails tosend a man to the moon. But does this mean that Britain recognises arule not to attack its neighbour and that Chad accepts a custom not to'4

See e.g. Cheng, 'United Nations Resolutions'; C. Christol, The Modern International Law
o f Outer Space, New York, 1982, and Christol, Space Law: Past, Prexent and Future, The
Hague, 1991. See further below, chapter 10.

launch rockets to the moon? Of course, the answer is in the first instance
yes, and in the second example no. Thus, a failure to act can arise fromeither a legal obligation not to act, or an incapacity or unwillingness inthe particular circumstances to act. Indeed, it has been maintained thatthe continued habit of not taking actions in certain situations may leadto the formation of a legal rule.""The danger of saying that a failure to act over a long period createsa negative custom, that is a rule actually not to do it, can be shown by
remarking on the absurdity of the proposition that a continual failure toact until the late 1950s is evidence of a legal rule not to send artificial
satellites or rockets into space. On the other hand, where a particular ruleof behaviour is established it can be argued that abstention from protest
by states may amount to agreement with that rule.
In the particular circumstances ofthe ~ o t ucase36s
the Permanent Courtof International Justice, the predecessor of the International Court ofJustice, laid down a high standard by declaring that abstention could only
give rise to the recognition of a custom if it was based on a conscious duty
to abstain. In other words, states had actually to be aware that they were
not acting a particular way because they were under a definite obligation
not to act that way. The decision has been criticised and would appear
to cover categories of non-acts based on legal obligations, but not torefer to instances where, by simply not acting as against a particular rulein existence, states are tacitly accepting the legality and relevance of thatrule.
It should be mentioned, however, that acquiescence must be based
upon full knowledge of the rule invoked. Where a failure to take a courseof action is in some way connected or influenced or accompanied by alack of knowledge of all the relevant circumstances, then it cannot beinterpreted as acquiescence.

\+%at is state practice?
Some of the ingredients of state activities have been surveyed and attempts
made to place them in some kind of relevant context. But what is statepractice? Does it cover every kind of behaviour initiated by the state, oris it limited to actual, positive actions? To put it more simply, does it
See e.g. Tunkln, Theory of International Law, pp. 116-17. But cf. D'Ainato, Concept ofCustom, pp. 6 1-3 and 88-9
16 PCIJ, Serles A, No. 10, 1927, p. 18; 4 AD, p. 153.
15

78

I N T E R N A T I O N A L LAW

include such things as speeches, informal documents and governmental
statements or is it restricted to what states actually do?
It is how states behave in practice that forms the basis of customarylaw, but evidence of what a state does can be obtained from numerous
sources. A state is not a living entity, but consists of governmental departments and thousands of officials, and state activity is spread throughout
a whole range of national organs. There are the state's legal officers, legislative institutions, courts, diplomatic agents and political leaders. Eachof these engages in activity which relates to the international field andtherefore one has to examine all such material sources and more in order
to discover evidence of what states do.37
The obvious way to find out how countries are behaving is to readthe newspapers, consult historical records, listen to what governmental
authorities are saying and peruse the many official publications. There
are also memoirs of various past leaders, official manuals on legal questions, diplomatic interchanges and the opinions of national legal advisors. All these methods are valuable in seeking to determine actual statepractice.
In addition, one may note resolutions in the General Assembly, comments made by governments on drafts produced by the International
Law Commission, decisions of the international judicial institutions, decisions of national courts, treaties and the general practice of international~r~anisations.~~
International organisations in fact may be instrumental in the creationof customary law. For example, the Advisory Opinion of the International" See e.g. Yearbook ofthe ILC, 1950,vol. 11, pp. 368-72, and the Interhandelcase, ICJ lieports,

1959, p. 27. Note also Brierly's comment that not all contentions put forward on behalfof a state represent that state's settled or impartial opinion, The Law of Nations, 6th edn,
Oxford, 1963, p. 60. See also Brownlie, Principles, p. 5, and Akehurst, 'Custom as a Source',p. 2.
" The United States has produced an extensive series of publications covering its practicein international law. See the Digests of International Law produced by Wharton (1887),
moo re (1906) and LVhiteman (1963-70). From 1973 to 1980 an annual Digest of liSPractice in International Law has been produced, while three composite volumes covering the years 1981-8 have appeared. The series resumed with effect from the year 2000.
See also H. A. Smith, Great Britain und the Law of Nutions, London, 2 vols., 1932-5;
A. D. McNair, Interllational Law Opinions, Cambridge, 3 vols., 1956; C. Parry, British
Digest of Ii~terilutionalLutv, London, 1965, and E. Lauterpacht, British Practice in International Law, London, 1963-7. Several yearbooks now produce sectioils devoted tonational practice, e.g. British Yeczrbook oflnternntionul Lczw and Ailnuaire Frcul(-uisde Droit
International.

Court of Justice declaring that the United Nations possessed international personality was partly based on the actual behaviour of the U N . ~ ~The International Law Commission has pointed out that 'records of the
cumulative practice of international organisations may be regarded as evidence of customary international law with reference to states' relations
to the ~r~anisations'.~'States' municipal laws may in certain circumstances form the basis ofcustomary rules. In the Scotia case decided by the US Supreme Court in
1 8 7 1 , ~a' British ship had sunk an American vessel on the high seas. The
Court held that British navigational procedures established by an Act ofParliament formed the basis of the relevant international custom sinceother states had legislated in virtually identical terms. Accordingly, theAmerican vessel, in not displaying the correct lights, was at fault. Theview has also been expressed that mere claims as distinct from actual
physical acts cannot constitute state practice. This is based on the preceptthat 'until it [a state] takes enforcement action, the claim has little value asa prediction of what the state will actually d ~ 'But
. ~as~has been demonstrated this is decidedly a minority ~iew.~"lairns and conventions ofstates in various contexts have been adduced as evidence of state practiceand it is logical that this should be so,44though the weight to be attachedto such claims, may, of course, vary according to the circumstances. Thisapproach is clearly the correct one since the process of claims and counter-claims is one recognised method by which states communicate to eachother their perceptions of the status of international rules and norms. In
this sense they operate in the same way as physical acts. Whether in abstracto or with regard to a particular situation, they constitute the raw
39 The Reparations case, ICJ Reports, 1949, p. 174; 16 AD, p. 318. See also the Reservations to

the Genocide Conventiorl case, ICJ Reports, 1951, pp. l5,25; 18 ILK, p. 364.
Yearbook oftlze ILC, 1950, vol. 11, pp. 368-72. See also Akehurst, 'Custom as a Source:
p. 12.
14 M7allace170 (1871). See also the Nottebolzm case, ICJ Reports, 1955, pp. 4,22; 22 ILR,
p. 349, and the Paquete Hrzbanrz case, 175 US 677 (1900).
" D'Amato, Concept of Custom, p. 88 and pp. 50-1. See also Judge Read (dissenting), theAnglo-Norwegian Fisheries case, ICJ Reports, 1951, pp. 116, 191; 18 ILR, pp. 86, 132.
" Akehurst, 'Custom as a Source: pp. 2-3. See also Thirlway, Internationnl Customary Law,
p. 58.
'".g.
the Asylinrn case, ICJ Reports, 1950, pp. 266, 277; 17 ILR, p. 280; the Rights of US
Natioiluls in Morocco case, ICJ Reports, 1952, pp. 176, 200, 209; 19 ILR, p. 255, and theNorth Sea Coiltineiztnl Shelfcases, ICJ Reports, 1969, pp. 3, 32-3,47 and 53; 41 ILR, p. 29.
See also the Fisheries Jurisdiction cases, ICJ Reports, 1974, py. 3, 47, 56-8, 81-8, 119-20,
135 and 161; 55 ILR, p. 238.

80

I N T E R N A T I O N A L LAW

material out of which may be fashioned rules of international law.45 It
is suggested that the formulation that 'state practice covers any act orstatements by a state from which views about customary law may be inf e ~ - r e d 'is, ~substantially~correct. However, it should be noted that not allelements of practice are equal in their weight and the value to be given tostate conduct will depend upon its nature and provenance.
Opinio j ~ r i s ~ ~Once one has established the existence of a specified usage, it becomes
necessary to consider how the state views its own behaviour. Is it to be
regarded as a moral or political or legal act or statement? The opinio juris,
or belief that a state activity is legally obligatory, is the factor which turns
the usage into a custom and renders it part of the rules of internationallaw. To put it slightly differently, states will behave a certain way because
they are convinced it is binding upon them to do so.
The Permanent Court of International Justice expressed this point ofview when it dealt with the Lotus case." The issue at hand concerned acollision on the high seas (where international law applies) between the
Lotus, a French ship, and the Boz-Kourt, a Turkish ship. Several people
aboard the latter ship were drowned and Turkey alleged negligence by
the French officer of the watch. When the Lotus reached Istanbul, theFrench officer was arrested on a charge of manslaughter and the caseturned on whether Turkey had jurisdiction to try him. Among the various
arguments adduced, the French maintained that there existed a rule ofcustomary law to the effect that the flag state of the accused (France) had
exclusive jurisdiction in such cases and that accordingly the national stateof the victim (Turkey) was barred from trying him. To justify this, France
referred to the absence of previous criminal prosecutions by such states
But see Thirlway, International Custornary Law, pp. 58-9.
Akehurst, 'Custom as a Source', p. 10. This would also include omissions and silence bystates: ibid.
47 Ibid., pp. 31-42, and D'Amato, Concept of Custom, pp. 66-72. See also Mendelson, 'Formation: 17. 245; Bos, Methodology, pp. 236 ff.; P. Haggenmacher, 'Des Deux Elements duDroit Coutumier dans la Pratique de la Cour Internationale', 91 Revue Gendrale de Droit
Internatiorlal Public, 1985, 17. 5; 0.
Elias, 'The Nature of the Subjective Element in Customary International Law: 44 ICLQ, 1995, p. 501; I. M. Lobo de Souza, 'The Role of State
Consent in the Customary Process: 44 ICLQ, 1995, p. 521, and B. Cheng, 'Opinio Jtiris: A
Key Concept in Interilatioilal Law that is Much Misunderstood' in International Laiv inthe Post-Cold War World (eds. S. Yee and W. Tieya), London, 2001, p. 56.
48 PCIJ, Series A, No. 10, 1927, p. 18; 4 AD, p. 153.
45

46

in similar situations and from this deduced tacit consent in the practicewhich therefore became a legal custom.
The Court rejected this and declared that even if such a practice ofabstention from instituting criminal proceedings could be proved in fact,
it would not amount to a custom. It held that 'only if such abstention
were based on their [the states] being conscious of a duty to abstain would
it be possible to speak of an international custom'." Thus the essential
ingredient of obligation was lacking and the practice remained a practice,nothing more.
A similar approach occurred in the North Sea Continental ~helfcases.~'In the general process of delimiting the continental shelf of the North
Sea in pursuance of oil and gas exploration, lines were drawn dividing
the whole area into national spheres. However, West Germany could notagree with either Holland or Denmark over the respective boundary lines
and the matter came before the International Court of Justice.
Article 6 of the Geneva Convention on the Continental Shelf of 1958
provided that where agreement could not be reached, and unless special
circumstances justified a different approach, the boundary line was tobe determined in accordance with the principle of equidistance from thenearest points of the baselines from which the breadth of the territorial
sea of each state is measured. This would mean a series of lines drawn at
the point where Germany met Holland on the one side and Denmark on
the other and projected outwards into the North Sea. However, because
Germany's coastline is concave, such equidistant lines would converge andenclose a relatively small triangle of the North Sea. The Federal Republic
had signed but not ratified the 1958 Geneva Convention and was therefore
not bound by its terms. The question thus was whether a case could bemade out that the 'equidistance - special circumstances principle' hadbeen absorbed into customary law and was accordingly binding upon
Germany.
The Court concluded in the negative and held that the provision in
the Geneva Convention did not reflect an already existing custom. It wasemphasised that when the International Law Commission had considered this point in the draft treaty which formed the basis of discussion at
Geneva, the principle of equidistance had been proposed with considerable hesitation, somewhat on an experimental basis and not at all as an
emerging rule of customary international law.'' The issue then turned on" PCIJ, Serles A, No. 10, 1927, p. 28; 4 AD, p. 159.
io ICJ Reports, 1969, p. 3; 41 ILR, p. 29.
i' ICJ Reports, 1969, pp. 32-41.

82

I N T E R N A T I O N A L LAW

whether practice subsequent to the Convention had created a customaryrule. The Court answered in the negative and declared that although time
was not of itself a decisive factor (only three years had elapsed before theproceedings were brought):
an indispensable requirement would be that within the period in question,short though it might be, state practice, including that of states whose
interests are specially affected, should have been both extensive andvirtually
uniform in the sense of the provision invoked, and should moreover haveoccurred in such a way as to show a general recognition that a rule of law
or legal obligation is involved.''This approach was maintained by the Court in the Nicaragua case5"
and express reference was made to the North Sea Continental Shelfcases.
The Court noted that:for a new customary rule to be formed, not only must the acts concerned'amount to a settled practice', but they must be accompanied by the opinio
juris sive necessitatis. Either the States taking such action or other States in aposition to react to it, must have behaved so that their conduct is 'evidenceof a belief that this practice is rendered obligatory by the existence of arule of law requiring it. The need for such a belief, i.e. the existence of a
subjective element, is implicit in the very notion of the opinio jtlris jivenecessitatis.''"

It is thus clear that the Court has adopted and maintained a highthreshold with regard to the overt proving of the subjective constituent
of customary law formation.
The great problem connected with the opinio juris is that if it calls
for behaviour in accordance with law, how can new customary rules becreated since that obviously requires action different from or contrary
to what until then is regarded as law? If a country claims a three-mile
territorial sea in the belief that this is legal, how can the rule be changedin customary law to allow claims of, for example, twelve miles, since thatcannot also be in accordance with prevailing law?55Obviously if one takes" Ibid., p. 43. See also e.g. the Asylnrn case, ICJ Reports, 1950, pp. 266, 277; 17 ILR, p. 280,

and the Right of Passage case, ICJ Reports, 1960, pp. 6,42-3; 31 ILR, pp. 23, 55.
ICJ Reports, 1986, y . 14; 76 ILR, p. 349.
'4 ICJ Reports, 1986, pp. 108-9; 76 ILR, pp. 442-3, citing ICJ Reports, 1969, p. 44; 41 ILR,
p. 73.
See Akehurst, 'Custom as a Source', pp. 32-4 for attempts made to deny or minimise theneed for opinio juris.
j3"

a restricted view of the psychological aspects, then logically the law will
become stultified and this demonstrably has not happened.
Thus, one has to treat the matter in terms of a process whereby states
behave in a certain way in the belief that such behaviour is law or is becoming law. It will then depend upon how other states react as to whether
this process of legislation is accepted or rejected. It follows that rigid definitions as to legality have to be modified to see whether the legitimating
stamp of state activity can be provided or not. If a state proclaims a twelvemile limit to its territorial sea in the belief that although- the three-milelimit has been accepted law, the circumstances are so altering that a twelvemile limit might now be treated as becoming law, it is vindicated if otherstates follow suit and a new rule of customary law is established. If otherstates reject the proposition, then the projected rule withers away and theoriginal rule stands, reinforced by state practice and common acceptance.
As the Court itself noted in the Nicaragua case,j6 '[rleliance by a Stateon a novel right or an unprecedented exception to the principle might, if
shared in principle by other States, tend towards a modification of customary international law'. The difficulty in this kind of approach is that it
is sometimes hard to pinpoint exactly when one rule supersedes another,
but that is a complication inherent in the nature of custom. Change israrely smooth bu;rather spasmodic.
This means taking a more flexible view of the opinio juris and tying it
more firmly with the overt manifestations of a custom into the context ofnational and international behaviour. This should be done to accommodate the idea of an action which, while contrary to law, contains the germof a new law and relates to the difficulty of actually proving that a state, inbehaving a certain way, does so in the belief that it is in accordance with thelaw. An extreme expression of this approach is to infer or deduce the opinio
juris from the material acts. Judge Tanaka, in his Dissenting Opinion in
the North Sea Continental Shelfcases, remarked that there was:n o other way than to ascertain the existence of opinio juris from the factof the external existence of a certain custom and its necessity felt in theinternational community, rather than to seek evidence as to the subjective
motives for each example of State practice."
i6
j7

ICJ Reports, 1986, pp. 14, 109; 76 ILR, pp. 349,443.
ICJ Reports, 1969, yp. 3, 176; 41 ILR, yp. 29, 171. Lauterpacht wrote that one should
regard all uniform coilduct of governments as evidencing the opinio juris, except where
the conduct in question was not accompanied by such intention: The Developinent ofInternational Law, p. 580; but cf. Cheng, 'Custom: The Future', p. 36, and Cheng, 'United
Nations Resolutions', pp. 530-2.

84

I N T E R N A T I O N A L LAW

However, states must be made aware that when one state takes a courseof action, it does so because it regards it as within the confines of international law, and not as, for example, purely a political or moral gesture.
There has to be an aspect of legality about the behaviour and the acting
state will have to confirm that this is so, so that the international community can easily distinguish legal from non-legal practices. This is essential
to the development and presentation of a legal framework amongst thestates.j8

Protest, acquiescence and change i n customary l a d 9
Customary law is thus established by virtue of a pattern of claim, absence of protest by states particularly interested in the matter at handand acquiescence by other states.60Together with related notions such asrecognition, admissions and estoppel, such conduct or abstinence fromconduct forms part of a complex framework within which legal principles
are created and deemed applicable to states.61
The Chamber of the International Court in the Gulf of Maine casedefined acquiescence as 'equivalent to tacit recognition manifested byunilateral conduct which the other party may interpret as consent' and as
founded upon the principles of good faith andGenerally, wherestates are seen to acquiesce63 in the behaviour of other states without
Note D'Amato's view that to become a custom, a practice has to be preceded or accompanied by the 'articulation' of a rule, which will put states on notice than an action etc. will
have legal implications: Concept of Custom, p. 75. Cf. Akehurst, 'Custom a5 a Source: pp.
35-6, who also puts forward his view that 'the practice of states needs to be accompaniedby statements that something is already law before it can become law': such statements
need not be beliefs as to the truths of the given situation, ibid., p. 37. Akehurst also draws adistinction between permissive rules, ~vhichdo not require express statements as to opinio
juris, and duty-imposing rules, which do: ibid., pp. 37-8.
j9 See H. Lauterpacht, 'Sovereignty over Subnlarine Areas', 27 BYIL, 1950, p. 376; I. MacGibbon, 'Some Observations on the Part of Protest in International Law', 29 BYIL, 1953, p.
293, and MacGil?bon, 'Customary International Law and Acquiescence: 33 RYIL, 1957,
p 115; IVoltke, Custoni, pp. 157-65, and I. Sinclair, 'Estoppel and Acquiescence' in Fifty
Yenrs oftlze Internutionnl Court o m s t i c e (eds. A. V. Lowe and M. Fitzmaurice), Cambridge,
1996, p. 104.
60 See, for a goodexample, the decision ofthe International Court in the El Salvndor/Horzdurtls
case, ICJ Reports, 1992, pp. 351, 601; 97 ILR, pp. 266, 517, with regard to the joint
sovereignty over the historic waters of the Gulf of Fonseca beyond the territorial sea of thethree coastal states.
61 See e.g. Sinclair, 'Estoppel and Acquiescence: p. 104 and below, chapter 9, p. 436.
ICJ Reports, 1984, pp. 246, 305; 71 ILR, p. 74.
Note that the Court has stated that 'the idea of acquiescence.. .presupposes freedom of
will: Bnrkilza Fasol1\lali, ICJ Reports, 1986, pp. 554, 597; 80 ILR, p. 459.
j8

''
''

protesting against them, the assumption must be that such behaviour is
accepted as legitimate.64
Some writers have maintained that acquiescence can amount to consent
to a customary rule and that the absence of protest implies agreement.
In other words where a state or states take action which they declare to
be legal, the silence of other states can be used as an expression of opinio
juris or concurrence in the new legal rule. This means that actual protests
are called for to break the legitimising proce~s.~'In the Lotus case, the Court held that 'only if such abstention werebased on their [the states] being conscious of having a duty to abstain
would it be possible to speak of an international custom'.66 Thus, one
cannot infer a rule prohibiting certain action merely because states do
not indulge in that activity. But the question of not reacting when a statebehaves a certain way is a slightly different one. It would seem that wherea new rule is created in new fields of international law, for example spacelaw, acquiescence by other states is to be regarded as reinforcing the rulewhether it stems from actual agreement or lack of interest depending
always upon the particular circumstances of the case. Acquiescence in a
new rule which deviates from an established custom is more problematic.
The decision in the Anglo-Norwegian Fisheries case6' may appear tosuggest that where a state acts contrary to an established customary ruleand other states acquiesce in this, then that state is to be treated as notbound by the original rule. The Court noted that 'in any event the. . . rulewould appear to be inapplicable as against Norway inasmuch as she had
always opposed any attempt to apply it to the Norwegian coast'.6s In
other words, a state opposing the existence of a custom from its inception
would not be bound by it, but the problem of one or more states seeking
to dissent from recognised customs by adverse behaviour coupled withthe acquiescence or non-reaction of other states remains unsettled.
States fail to protest for very many reasons. A state might not wish to
give offence gratuitously or it might wish to reinforce political ties or other
diplomatic and political considerations maybe relevant. It could be that to6"ee e.g. Grand-Duchy of Luxenlbourg v. Cie. Luxembourgeoise de Telediffusion, 91 ILR, pp.
281,286.
See e.g. MacGibbon, 'Customary International Law: p. 131, and H. S. McDougal et al.,Studies in World Public Order, Ne~vHaven, 1960, pp. 763-72.
PCIJ, Series A, No. 10, 1927, p. 28; 4 ILR, p. 159.
67 ICJ Reports, 1951, p. 116; 18 ILR, p. 86.
68 ICJ Reports, 1951, p. 131; 18 ILR, p. 93. See also the North Sen Coiltineiztnl Shelfcases, ICJ
Reports, 1969, pp. 3, 26-7; 41 ILR, pp. 29, 55-6, and the Asylum case, ICJ Reports, 1950,
pp. 266,277-8; 17 ILR, pp. 280,285.

86

I N T E R N A T I O N A L LAW

protest over every single act with which a state does not agree would be an
excessive requirement. It is, therefore, unrealistic to expect every state toreact to every single act of every other state. If one accepted that a failure
to protest validated a derogation from an established custom in every casethen scores of special relationships would emerge between different states
depending upon acquiescence and protest. In many cases a protest might
be purely formal or part of diplomatic manoeuvring designed to exertpressure in a totally different field and thus not intended to alter legal
relationships.
Where a new rule which contradicts a prior rule is maintained by a large
number of states, the protests of a few states would not overrule it, andthe abstention from reaction by other countries would merely reinforce
it. Constant protest on the part of a particular state when reinforced by
the acquiescence of other states might create a recognised exception to therule, but it will depend to a great extent on the facts ofthe situation and theviews of the international community. Behaviour contrary to a custom
contains within itself the seeds of a new rule and if it is endorsed by othernations, the previous law will disappear and be replaced, or alternatively
there could be a period oftime during which the two customs co-exist until
one of them is generally accepted,69as was the position for many years
with regard to the limits of the territorial sea.70It follows from the above,
therefore, that customary rules are binding upon all states except for suchstates as have dissented from the start of that custom.'l This raises thequestion ofnew states and custom, for the logic ofthe traditional approach
would be for such states to be bound by all existing customs as at the dateof independence. The opposite view, based upon the consent theory oflaw, would permit such states to choose which customs to adhere to at thatstage, irrespective of the attitude of other state^.'^ However, since such an
approach could prove highly disruptive, the proviso is often made that byentering into relations without reservation with other states, new statessignify their acceptance of the totality of international law."

69
O'

''

See also protests generally: Akehurst, 'Custom as a Source: pp. 38-42.
See below, chapter 11, p. 505.
See e.g. the North Sen Contirlental Shelfcases, ICJ Reports, 1969, pp. 3, 38, 130; 41 ILR,
pp. 29, 67, 137, and The Third US Restatenrent ofForeign Relations Lnw, St Paul, 1987, vol.
I , pp. 25-6. See also T. Stein, 'The Approach o f the Different Drummer: The Principle o f
the Persistent Objector i n International Law: 26 Hurvard International Luw Journal, 1985,
p. 457 and J.Charney, 'The Persistent Objector Rule and the Development o f Custoinary
International Law: 56 BYIL, 1985, p. 1.
See e.g. Tunkin, Theory of Iilterilational Law, p. 129.
Ibid.

"

SOURCES

87

Regional and local custom7'
It is possible for rules to develop which will bind only a set group ofstates, such as those in Latin ~ m e r i c aor, ~indeed~just two states.76Suchan approach may be seen as part of the need for 'respect for regional legal

tradition^'.^^In the Asylum case,78the International Court of Justice discussed theColombian claim of a regional or local custom peculiar to the Latin
American states, which would validate its position over the granting ofasylum. The Court declared that the 'party which relies on a custom of
this kind must prove that this custom is established in such a manner thatit has become binding on the other party'.79 It found that such a custom
could not be proved because of uncertain and contradictory evidence.
In such cases, the standard of proof required, especially as regards
the obligation accepted by the party against whom the local custom ismaintained, is higher than in cases where an ordinary or general custom
is alleged.
In the Right of Passage over Indian Territory case," Portugal claimed
that there existed a right of passage over Indian territory as between thePortuguese enclaves, and this was upheld by the International Court ofJustice over India's objections that no local custom could be establishedbetween only two states. The Court declared that it was satisfied that
there had in the past existed a constant and uniform practice allowing
free passage and that the 'practice was accepted as law by the parties andhas given rise to a right and a correlative ~ b l i g a t i o n ' . ~ ~Such local customs therefore depend upon a particular activity by one
state being accepted by the other state (or states) as an expression of alegal obligation or right. While in the case of a general customary rule
the process of consensus is at work so that a majority or a substantial
Concept of Ctrstorn, chapter 8;
G. Cohen-Jonathan, 'La Coutume Locale: AFDI, 1961, p. 133, and m701fke,Custom, pp.
88-90. Local custom is sometimes referred to as regional or special custom.
" See e.g. H. Gros Espiel, 'La Doctrine du Droit International en AmCrique Latine avant laPremiere Conference Panamericaine', 3 Journal of the History of International Law, 2001,
p. 1.
76 Note the claim by Honduras in the El SalvadorlHonduras case, ICJ Reports, 1992, pp. 351,
597; 97 ILR, pp. 266,; 13 that a 'trilateral local custom of the nature of a convention' could
establish a condoinini~unarrangement.
" See the EritredYenlen (AVIaritimeDelimitation) case, 119 ILR, pp. 417, 448.
" ICJ Reports, 1950, p. 266; 17 ILR, p. 280.
ICJ Reports, 1950, p. 276; 17 ILR, p. 284.
ICJ Reports, 1960, p. 6; 31 ILR, p. 23.
ICJ Reports, 1960, p. 40; 31 ILR, p. 53. See IITolfie,Custom, p. 90.
74 See Akehurst, 'Custom as a Source', pp. 29-31; D'Amato,

''

88

I N T E R N A T I O N A L LAW

minority of interested states can be sufficient to create a new custom, a
local custom needs the positive acceptance of both (or all) parties to therule.82This is because local customs are an exception to the general natureof customary law, which involves a fairly flexible approach to law-making
by all states, and instead constitutes a reminder of the former theory ofconsent whereby states are bound only by what they assent to. Exceptions
may prove the rule, but they need greater proof than the rule to establish
themselves.

In contrast with the process of creating law through custom, treaties(or international conventions) are a more modern and more deliberate
method.84Article 38 refers to 'international conventions, whether generalor particular, establishing rules expressly recognised by the contracting
states'. Treaties will be considered in more detail in chapter 16 but in thissurvey of the sources of international law reference must be made to therole of international conventions.
Treaties are known by a variety of differing names, ranging from
Conventions, International Agreements, Pacts, General Acts, Charters,
through to Statutes, Declarations and ovena ants.^^ All these terms referto a similar transaction, the creation of written agreements whereby thestates participating bind themselves legally to act in a particular way or to
set up particular relations between themselves. A series of conditions andarrangements are laid out which the parties oblige themselves to carry
It is possible to divide treaties into 'law-making' treaties, which are intended to have universal or general relevance, and 'treaty-contracts', which
apply only as between two, or a small number of states. Such a distinction'' See Cohen-Jonathan,'La Coutume Locale'.
S3 See generally A. D. McNair, The Law of Treaties, Oxford, 1961. See further below, chapter

16.
OpperzPzeim1sInternational Law emphasises that 'not only is custom the original source ofinternational law, but treaties are a source the validity and modalities ofwhichthemselves
derive from custom',p. 3 1.
See e.g.U K M I L , 70 BYIL,1999, p. 404.
86 See the Vienna Convention on the Law o f Treaties, 1969. Article 2 ( l ) a defines a treaty
for the purposes o f the Convention as 'an international agreement concluded between
states in written forin and governed by international law, whether embodied in a single
instrument or in two or more related instruments andwhatever its particular designation'.
See further below, 13. 110 with regard to non-binding international agreements.
84''

SOURCES

89

is intended to reflect the general or local applicability of a particular treaty
and the range of obligations imposed. It cannot be regarded as hard andfast and there are many grey areas of overlap and u n ~ e r t a i n t ~ . ~ 'Treaties are express agreements and are a form of substitute legislation undertaken by states. They bear a close resemblance to contracts in
a superficial sense in that the parties create binding obligations for themselves, but they have a nature of their own which reflects the characterof the international system. The number of treaties entered into has expanded over the last century, witness the growing number of volumes of
the United Nations Treaty Series or the United Kingdom Treaty Series.
They fulfil a vital role in international relations.
As governmental controls increase and the technological and communications revolutions affect international life, the number of issues which
require some form of inter-state regulation multiplies.
For many writers, treaties constitute the most important sources ofinternational law as they require the express consent of the contracting
parties. Treaties are thus seen as superior to custom, which is regarded
in any event as a form of tacit agreemenLa8As examples of important
treaties one may mention the Charter of the United Nations, the Geneva
Conventions on the treatment of prisoners and the protection of civilians
and the Vienna Conventions on Diplomatic Relations. All kinds of agreements exist, ranging from the regulation of outer space exploration to thecontrol of drugs and the creation of international financial and development institutions. It would be impossible to telephone abroad or post aletter overseas or take an aeroplane to other countries without the various
international agreements that have laid down the necessary, recognised
conditions of operation.
It follows from the essence of an international treaty that, like a contract,
it sets down a series of propositions which are then regarded as binding
upon the parties. How then is it possible to treat conventions as sourcesof international law, over and above the obligations imposed upon thecontracting parties? It is in this context that one can understand the term'law-making treaties'. They are intended to have an effect generally, notrestrictively, and they are to be contrasted with those treaties which merely
regulate limited issues between a few states. Law-making treaties are those" See Virally, 'Sources', p. 126; Sarensen, Les Sources, pp. 58 ff. and Tunkin, Theory ofInternational Law, pp. 93-5.
Tunkin, Theory oflnternational Law, pp. 91-113. See also R. Miillerson, 'Sources of International Law: New Tendencies in Soviet Thinking', 83 AJIL, 1989, pp. 494, 501-9, andDanilenko, 'Theory', p. 9.

90

I N T E R N A T I O N A L LAW

agreements whereby states elaborate their perception of international law
upon any given topic or establish new rules which are to guide them forthe future in their international conduct. Such law-making treaties, ofnecessity, require the participation of a large number of states to einphasise this effect, and may produce rules that will bind all.89They constitutenormative treaties, agreements that prescribe rules of conduct to be followed. Examples of such treaties maj7 include the Antarctic Treaty and
the Genocide Convention. There are also many agreements which declarethe existing law or codify existing customary rules, such as the Vienna
Convention on Diplomatic Relations of 196 1 .90
Parties that do not sign and ratify the particular treaty in question are
not bound by its terms. This is a general rule and was illustrated in the
North Sea Continental ~helfcases" where West Germany had not ratified
the relevant Convention and was therefore under no obligation to heed its
terms. However, where treaties reflect customary law then non-parties arebound, not because it is a treaty provision but because it reaffirms a ruleor rules of customary international law. Similarly, non-parties may cometo accept that provisions in a particular treaty can generate customarylaw, depending always upon the nature of the agreement, the number ofparticipants and other relevant factors.
The possibility that a provision in a treaty may constitute the basis of arule which, when coupled with the opinio juris, can lead to the creation ofa binding custom governing all states, not just those party to the original
treaty, was considered by the International Court of Justice in the North
Sea Continental Shelfcasesg2and regarded as one of the recognised methods of formulating new rules of customary international law. The Court,
however, declared that the particular provision had to be 'of a fundamentally norm-creating character',93that is, capable of forming the basis of
S9 But this may depend upon the attitude of other states. This does not constitute a formof international legislation: see e.g. Oppenheirni International Law, p. 32; the Reparations
case, ICJ Reports, 1949, p. 185; 16 AD, p. 318, and the Namibia case, ICT Reports, 1971,
p. 56; 49 ILR, p. 2. See also Brownlie, Principles, pp. 12-13, and R. Baxter, 'Treaties andCustom: 129 HR, 1970, p. 27. See also 0. Schachter, 'Entangled Treaty and Custom' inInternational Law at a Time ofperplexity (ed. Y. Dinstein), Dordrecht, 1989, p. 717.
" Brownlie, Principles, p. 12.
ICJ Reports, 1969, pp. 3, 25; 41 ILR, pp. 29, 54.
92 ICI Reports, 1969, 17. 41; 41 ILR, p. 71. The Court stressed that this method of creating
new customs was not to be lightly regarded as having been attained, ibid.
93 But see the minority opinions, ICJ Reports, 1969, pp. 56, 156-8, 163, 169, 172-80, 197200,221-32 and 241-7; 41 ILR, p. 85. See also the GulfofMaine case, ICT Reports, 1984,
p p 246,295; 71 ILR, pp. 74, 122, and the Libya-,Malta Continental Shelfcase, ICr Reports,
1985, pp. 13,29-34; 81 ILR, pp. 239,261-6.

"

a general rule of law. What exactly this amounts to will probably vary
according to the time and place, but it does confirm that treaty provisions
may lead to custom providing other states, parties and non-parties to thetreaty fulfil the necessary collditions of compatible behaviour and opinio
juris. It has been argued that this possibility may be extended so that generalisable treaty provisions may of themselves, without the requirement todemonstrate the opinio juris and with little passage of time, generate ipso
facto customaryrules.94s his, while recognising the importance oftreaties,
particularlyin the human rights field, containing potential norm-creating
provisions, is clearly going too far. The danger would be of a small numberof states legislating for all, unless dissenting states actually entered into
contrary treaties." This would constitute too radical a departure for thecurrent process of law-formation within the international community.
It is now established that even where a treaty rule comes into being
covering the same ground as a customary rule, the latter will not be simply
absorbed within the former but will maintain its separate existence. The
Court in the Nicaragua case96did not accept the argument of the US thatthe norms of customary international law concerned with self-defence
had been 'subsumed' and 'supervened' by article 51 of the United Nations
Charter. It was emphasised that 'even if a treaty norm and a customarynorm relevant to the present dispute were to have exactlythe same content,
this would not be a reason for the Court to hold that the incorporation of
the customary norm into treaty law must deprive the customary norm of
its applicability as distinct from the treaty norm'.9i The Court concluded
that 'it will therefore be clear that customary internationallaw continues toexist and to apply separately from international treaty law, even where thetwo categories of law have an identical ont tent'.'^ The effect of this in the
instant case was that the Court was able to examine the rule as establishedunder customary law, whereas due to an American reservation, it was
unable to analyse the treaty-based obligation.
Of course, two rules with the same content may be subject to different
principles with regard to their interpretation and application; thus theConcept of Custom, p. 104, and D'Amato, 'The Concept of Human Rights inInternational Law: 82 Columbia Law Review, 1982, pp. 1110, 1129-47. See also Akehurst,'Custom as a Source: pp. 42-52.
" D'Amato, 'Concept of Human Rights', p. 1146.
96 ICJ Reports, 1986, p. 14; 76 ILR, p. 349.
ICJ Reports, 1986, pp. 94-5; 76 ILR, pp. 428-9. See also W. Czaplinski, 'Sources of International Law in the Nicaragua Case: 38 ICLQ, 1989, p. 151.
ICJ Reports, 1986, p. 96; 76 ILR, p. 430.
94 See D'Amato,

"
"

92

I N T E R N A T I O N A L LAW

approach of the Court as well as being theoretically correct is of practicalvalue also. In many cases, such dual source of existence of a rule may wellsuggest that the two versions are not in fact identical, as in the case of
self-defence under customary law and article 51 of the Charter, but it will
always depend upon the particular circumstances.g9
Certain treaties attempt to establish a 'regime' which will, of necessity,
also extend to n ~ n - ~ a r t i e s .The
' ~ ' United Nations Charter, for example, in
its creation of a definitive framework for the preservation of international
peace and security, declares in article 2(6) that 'the organisation shallensure that states which are not members of the United Nations act inaccordance with these Principles [listed in article 21 so far as may benecessary for the maintenance of international peace and security'. One
can also point to the 1947 General Agreement on Tariffs and Trade (GATT)
which set up a common code of conduct in international trade and has
had an important effect on non-party states as well, being now transmuted
into the World Trade Organisation.
On the same theme, treaties may be constitutive in that they create
international institutions and act as constitutions for them, outlining
their proposed powers and duties.
'Treaty-contracts' on the other hand are not law-making instrumentsin themselves since they are between only small numbers of states and on alimited topic, but may provide evidence of customary rules. For example,
a series of bilateral treaties containing a similar rule may be evidence of theexistence of that rule in customarylaw, although this proposition needs tobe approached with some caution in view of the fact that bilateral treatiesby their very nature often reflect discrete cir~umstances.'~'General principles of law'02
In any system of law, a situation may very well arise where the court inconsidering a case before it realises that there is no law covering exactlythat point, neither parliamentary statute nor judicial precedent. In such
" See further below, chapter 20, p. 1024.

l o o See fi~rther
below, chapter 16, p. 834.
See further below, 13.610,with regard to extradition treaties and below, 13.747,with regard
to bilateral investment treaties.
lo2 See e.g. B.Cheng, General Principles of Latv as Applied by International Courts and Tribunals, London, 1953; A. D. McNair, 'The General Principles of Law Recognised by
Cirilised Nations: 33 BYIL, 1957, p. 1; H. Lauterpacht, Private Law Source.c and Analogies of International Laiv, London, 1927; G. Herczegh, General Principles of Law and thelo'instances the judge will proceed to deduce a rule that will be relevant, by
analogy from already existing rules or directly from the general principles
that guide the legal system, whether they be referred to as emanatingfrom justice, equity or considerations of public policy. Such a situationis perhaps even more likely to arise in international law because of therelative underdevelopment of the system in relation to the needs withwhich it is faced.
There are fewer decided cases in international law than in a municipal
system and no method of legislating to provide rules to govern new situations. It is for such a reason that the provision of 'the general principles oflaw recognised by civilised nations' was inserted into article 38 as a sourceof law, to close the gap that might be uncovered in international law andsolve this problem which is known legally as non 1iquet.lo"he question ofgaps in the system is an important one. It is important to appreciate thatwhile there may not always be an immediate and obvious rule applicableto every international situation, 'every international situation is capableof being determined as a matter of law:lo4
There are various opinions as to what the general principles of law
concept is intended to refer. Some writers regard it as an affirmationof Natural Law concepts, which are deemed to underlie the system ofinternational law and constitute the method for testing the validity of theInternational Legal Order; Budapest, 1969; 0.Schachter, International Law in Theory andPractice, Dordrecht, 1991, pp. 50-5; 0. Corten, L'Utilisafion du 'Raisonr~able'parle Jc~ge
International, Brussels, 1997; B. Vitanyi, 'Les Positions Doctrinales Concernant le Sensde la Notion de "Principes Generaux de Droit Reconnus par les Nations Civilisees" ', 86
Revue Generale de Droit International Public, 1982, p. 48; H. Waldock, 'General Course
on Public International La~v',106 HR, 1962, p. 54; M. Snrensen, 'Principes de Droit International', 101 HR, 1960, p. 16, and V. Degan, 'General Principles of Law', 3 Finnish YIL,
1992, p. 1.
lo' See e.g. J. Stone, Of Law and Nations, London, 1974, chapter 3; H. Lauterpacht, 'Some
Observations on the Prohibition of Non Liquet and the Completeness of the Legal Order',Syrnbolae Verzijl, 1958, p. 196; H. Thirlway, 'The Law and Procedure of the International
Court of Justice: BYIL, 1988, p. 76, and P. \Veil, 'The Court Cannot Conclude Definitively.. . . ? Aron Liquet Revisited: 36 C o l ~ ~ ~ i iJournalb i a of Transnational Law, 1997, p. 109.
See also the North Sea Continental Shelfcases, ICJ Reports, 1969, p. 46; 41 ILR, p. 29, andthe Nicaragua case, ICJ Reports, 1986, p. 135; 76 ILR, 17. 349.
")"ppenP~eim's International Latv, p. 13. See, however, the conclusion of the International
Court that it was unable to state whether there was a rule of international law prohibitingor permitting the threat or use of nuclear weapons by a state in self-defence where its very
survival was at stake: the Legality ofthe Threat or Use of,Vuclear Weapons case, ICJ Reports,
1996, paras. 36-40; 35 ILM, 1996, pp. 809, 830 and 831. Cf. the Dissenting Opinion ofJudge Higgins, ibid.; 35 ILM, pp. 934 ff. See also Eritrea/Yemen (First Phase), 114 ILR,
pp. 1, 119 and 121-2.

94

I N T E R N A T I O N A L LAW

positive (i.e. man-made) rules.lo5Other writers, particularly positivists,
treat it as a sub-heading under treaty and customary law and incapable ofadding anything new to international law unless it reflects the consent ofstates. Soviet writers like Tunkin subscribed to this approach and regarded
the 'general principles of law' as reiterating the fundamental precepts ofinternational law, for example, the law of peaceful co-existence, whichhave already been set out in treaty and custom law.'06
Between these two approaches, most writers are prepared to accept
that the general principles do constitute a separate source of law but of
fairly limited scope, and this is reflected in the decisions of the Permanent
Court of International Justice and the International Court of Justice. It
is not clear, however, in all cases, whether what is involved is a generalprinciple of law appearing in municipal systems or a general principle ofinternational law. But perhaps this is not a terribly serious problem sinceboth municipal legal concepts and those derived from existing international practice can be defined as falling within the recognised catchment
area.ln7
While the reservoir from which one can draw contains the legal operations of 190 or so states, it does not follow that judges have to be experts
in every legal system. There are certain common themes that run throughthe many different orders. Anglo-American common law has influenced anumber of states throughout the world, as have the French and Germanic
systems. There are many common elements in the law in Latin America,
and most Afro-Asian states have borrowed heavily from the European
experience in their efforts to modernise the structure administering thestate and westernise economic and other enterprises.lo8
Reference will now be made to some of the leading cases in this field toillustrate how this problem has been addressed.
lo5 See e.g. Lauterpacht, Private Law Sources. See also IValdock, 'General Course: p. 54; C. IV.

Jenks, The CornrnonLutvoj'Mankind, London, 1958,p.169, andJudgeTanalia (dissenting),
South- West Afiicn case, (Second Phase), ICJ Reports, 1966, pp. 6,294-9; 37 ILR, pp. 243,455-9.
lo6 Tunkin, Tlzeory oflnternational Law, chapter 7 .
lo' See Brownlie, Principles, pp. 15-17, and Virally, 'Sources: pp. 144-8.
lo8 See generally, R. David and J. Brierley, Major Legal Systenzs iiz the M'orld Today, 2ndedn, London, 1978. Note that the Tribunal in AMCO v. Republic of Indoilesia statedthat while a practice or legal provisions common to a number of nations would be an
important source of international law, the French concepts of administrative unilateralacts or administrative contracts were not such practices or legal provisions: 89 ILR,
pp. 366,461.

In the Chorzdw Factory case in 1928,1°9 which followed the seizureof a nitrate factory in Upper Silesia by Poland, the Permanent Courtof International Justice declared that 'it is a general conception of law
that every violation of an engagement involves an obligation to makereparation'. The Court also regarded it as:a principle of international law that the reparation of a wrong may consist in a n indemnity corresponding to the damage which the nationals of
the injured state have suffered as a result of the act which is contrary tointernational law.

The most fertile fields, however, for the implementation of municipal
law analogies have been those of procedure, evidence and the machinery of the judicial process. In the German Settlers in Poland case,'1° the
Court, approaching the matter from the negative point of view,"' declared that 'private rights acquired under existing law do not cease on achange of sovereignty.. . It can hardly be maintained that, although thelaw survived, private rights acquired under it perished. Such a contention
is based on no principle and would be contrary to an almost universal
opinion and practice."12 The International Court of Justice in the Corfu
Channel case,'13 when referring to circumstantial evidence, pointed outthat 'this indirect evidence is admitted in all systems of law and its use
is recognised by international decisions'. International judicial reference
has also been made to the concept of res judicata, that is that the decisionin the circumstances is final, binding and without appeal.' l4
In the Administrative Tribunal case,'l5 the Court dealt with the problemof the dismissal of members of the United Nations Secretariat staff andwhether the General Assembly had the right to refuse to give effect to
PCIJ, Series A, No. 17, 1928, p. 29; 4 AD, p. 258. See also the Chile-United States
Comnlission decision with regard to the deaths of Letelier and Moffitt: 31 ILM, 1982,
p p 1, 9.
PCIJ, Series R,No. 6, p. 36.
See also the South- yest Africa cases, ICJ Reports, 1966, pp. 3,47; 37 ILR, pp. 243,280-1,
for a statement that the notion of actio popularis was not part of international law as suchnor able to he regarded as iimported by the concept of general principles of law.
' I 2 See also the Certain Gerlnnrz Interests ill Polisll Upper Silesia case, PCIJ, Series A, No. 7,
p. 42, and the Free Zones of Upper Savoy and the District of Gex case, PCIJ, Series AIB, No.
46, p. 167.
ICJ Reports, 1949, pp. 4, 18; 16 AD, pp. 155, 157.
' I 4 The Corfu Chunilel case, ICJ Reports, 1949, p. 248.
'I5 ICJ Reports, 1954, p. 47; 21 ILR, p. 310.
'09

'"

"'

96

I N T E R N A T I O N A L LAW

awards to them made by the relevant Tribunal. In giving its negative
reply, the Court emphasised that:
according to a well-established and generally recognised principle of law, ajudgment rendered by such a judicial body is res judicata and has binding
force between the parties to the dispute.""In the Laguna del Desierto (Argentina/Chile) case, the Tribunal notedthat:
A judgment having the authority of res judicata is judicially binding o n theParties to the dispute. This is a fundamental principle of the law of nations
repeatedly invoked in the jurisprudence, xvhich regards the authority of res
judicata as a universal and absolute principle of international law.";

Further, the Court in the preliminary objections phase of the Right ofPassage casel"stated that:
it is a rule of law generally accepted, as well as one acted upoil in the pastby the Court, that, once the Court has been validly seized of a dispute,unilateral action by the respondent state in terminating its Declaration [i.e.
accepting the jurisdiction of the Court], in whole or in part, cannot divest
the Court of jurisdiction.

The Court has also considered the principle of estoppel which provides
that a party that has acquiesced in a particular situation cannot thenproceed to challenge it. In the Temple case119the International Court ofJustice applied the doctrine, but in the Serbian Loans case120 in 1929, in
which ~Lenchbondholders were demanding payment in gold francs asagainst paper money upon a series of Serbian loans, the Court declared
the principle inapplicable.
As the International Court noted in the ELSI case,12' there were limitations upon the process of inferring an estoppel in all circumstances,since 'although it cannot be excluded that an estoppel could in certain
ICJ Reports, 1954, p. 53; 21 ILR, p. 314. See also AMCOv. Republic ofbldonesia, 89 ILR,
pp. 366,558; Cheng, GeneralPriilciples, chapter 17; S. Rosenne, TkeLawandPractice oftke
Internatior~alCourt, 1920-1996,3rdedn, The Hague, 1997, pp. 1655 ff.;M. Shahabuddeen,
Precedent in the International Court, Cambridge, 1996, pp. 30 and 168, and I. Scobbie,'Res Judicata, Precedent and the International Court: 20 Australian YIL, 2000, p. 299.
"'113 ILR, pp. 1,43.
'I8 ICJ Reports, 1957, pp. 125, 141-2; 24 ILR, pp. 840,842-3.
""CJ
Reports, 1962, pp. 6,23,31 and 32; 33 ILR, pp. 48,62,69-70.
PCIT, Series A, No. 20; 5 AD, p. 466.
''I
ICJ Reports, 1989, pp. 15, 44; 84 ILR, pp. 311, 350.

circumstances arise from a silence when something ought to have beensaid, there are obvious difficulties in constructing an estoppel from a mere
failure to mention a matter at a particular point in somewhat desultory
diplomatic exchange^'.'^^
Another example of a general principle was provided by the Arbitration Tribunal in the AMCO v. Republic of Indonesiu case,"hhere it wasstated that 'the full compensation of prejudice, by awarding to the injured
party the darnnum ernergens and lucrum cessans is a principle common to
the main systems of municipal law, and therefore, a general principle oflaw which may be considered as a source of international law'. Anotherprinciple would be that of respect for acquired rights.l2%ne crucial general principle of international law is that of pacta sunt servanda, or theidea that international agreements are binding. The law of treaties rests
inexorably upon this principle since the whole concept of binding international agreements can only rest upon the presupposition that such
instruments are commonly accepted as possessing that quality.125
Perhaps the most important general principle, underpinning many international legal rules, is that of good faith.'26This principle is enshrinedin the United Nations Charter, which provides in article 2 ( 2 ) that 'all
Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed bythem in accordance with the present Charter', and the elaboration of thisprovision in the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States adopted by the
See also the Eustern Greenlund case, PCII, Series AIB, No. 53, pp. 52 ff.;6 AD, pp. 95,
100-2; the decision of the EritreaiEthiopia Boundary Commission of 13 April 2002, para.
pdf; and the Saigu (No. 2) case, 120
3.9, http:llpca-cpa.orglEEBCiEEBC%20Decision-L.
ILR, pp. 143, 230; and H. Thirl~vay'The Law and Procedure of the International Courtof Justice, 1960-89 (Part One)', 60 BYIL, 1989, pp. 4, 29. See also below, chapter 9,p. 439.
"9
ILR, pp. 366, 504.
'24 See, for example, the German Interests in Polish Upper Silesia case, PCIJ, Series A, No.
7, 1926, p. 22; Starrett Housing Corporation v. l m n , 85 ILR p. 34; the Sktlfeld claim, 5AD, p. 179, and A M C O v. Republic of Indonesia, 89 ILR, pp. 366,496. See further below,
p. 745.
125 See Brownlie, Principles, p. 616, and McNair, Law of Treaties, vol. I , chapter 30. See also
article 26 of the Vienna Convention o n the Law of Treaties, 1969, and A M C O v. Republicof hidonesia, 89 ILR, pp. 366,495-7.
Oppenheirni International Law notes that this is 'of overriding importance', p. 38. See E.
Zoller, Bonne Foi en Droit International Public, Paris, 1977; R. Kolb, La Bonne Foie en Droit
International P~lblic,Paris, 2000; Thirlway, 'Law and Procedure of the ICT (Part One)' pp.
3, 7 ff., and G. Fitzmaurice, The Law and Procedure o f the International Court of Justice,
Cambridge, 1986, vol. I, p. 183 and vol. 11, p. 609.

98

I N T E R N A T I O N A L LAW

General Assembly in resolution 2625 (XXV), 1970, referred to the obligations upon states to fulfil in good faith their obligations resulting frominternational law generally, including treaties. It therefore constitutes anindispensable part of the rules of international law generally.127
The International Court declared in the Nuclear Tests cases'28that:
One of the basic principles governing the creation and performance oflegal obligations, whatever their source, is the principle of good faith. Trustand confidence are inherent in international co-operation, in p a r t i c ~ ~ l a r
in an age when this co-operation in many fields is becoming increasingly
essential. Just as the very rule of pucta sunt servanda in the law of treaties
is based o n good faith, so also is the binding character of an international
obligation assumed by unilateral obligation.

Nevertheless, the Court has made the point that good faith as a concept
is 'not in itself a source of obligation where none would otherwise exist'.'29
The principle of good faith, therefore, is a background principle informing
and shaping the observance of existing rules of international law and in
addition constraining the manner in which those rules may legitimately
be exercised."' A further principle to be noted is that of ex injuria jus
non oritur, which posits that facts flowing from wrongful conduct cannot
determine the law.l3'
Thus it follows that it is the Court which has the discretion as to whichprinciples of law to apply in the circumstances of the particular case underconsideration, and it will do this up on the basis of the inability of customary and treaty law to provide the required solution. In this context, onemust consider the Barcelona Traction case'" between Belgium and Spain.

"'See also Case T-115194, OpelAustria Gnibh v. Republic ofAustria, 22 January 1997.

"' ICJ Reports, 1974, p p 253,267; 57 ILR, pp. 398,412.

The Border and Transborder Armed Actions case (Nicaragua v. Honduras), ICJ Reports,
1988, p. 105; 84 ILR, p. 218. See also Tudge Ajibolo's Separate Opinion in the Libya/Chudcase, ICJ Reports, 1994, pp. 6, 71-4, and the statement by the Inter-American Court of
Human Rights in the Re-introduction of the Death Penalty in Peru case, 16 Human Rights
Law Journal, 1995, pp. 9, 13.
See also the Fisheries Jurisdiction cases, ICJ Reports, 1974, pp. 3, 33; 55 ILR, pp. 238,268;
the North Sea Continental Shelfcases,ICJ Reports, 1969, pp. 3,46-7; 41 ILR, pp. 29,76; theLac Lanr~ot~xcase,
24 ILR, p. 119, and the Legality of the Threat or Use ofNuclear LVeaponx
case, ICJ Reports, 1996, paras. 102 ff.; 35 ILM, pp. 809, 830-1. Note also Principles 19
and 27 of the Rio Declaration on Environment and Development, 1992, 31 ILM, 1992,
p. 876.
13' See e.g. the Gabtikovo-Nagymaros Project case, ICJ Reports, 1997, pp. 7,76; 116 ILR, p. 1,
and the Brcko case, 36 ILM, 1997, pp. 396,422.
ICJ Reports, 1970, p. 3; 46 ILR, p. 178.

"'

SOURCES

99

The International Court of Justice relied heavily upon the municipal law
concept of the limited liability company and emphasised that if the Court
were to decide the case in disregard of the relevant institutions of municipal law it would, without justification, invite serious legal difficulties. It
would lose touch with reality, for there are no corresponding institutionsof international law to which the Court could resort.'j3
However, international law did not refer to the municipal law of aparticular state, but rather to the rules generally accepted by municipal
legal systems which, in this case, recognise the idea ofthe limited company.
Equity and international law1j4
Apart from the recourse to the procedures and institutions of municipal
legal systems to reinforce international law, it is also possible to see in a
number of cases references to equity"' as a set of principles constituting
133 ICJ Reports, 1970, p. 37; 46 ILR, p. 211. See also generally the Abll Dllubi arbitration, 1

ICLQ, 1952, p. 247; 18 ILR, p. 44, and Texucov. Libya, 53 ILR, p. 389.
See M. Akehurst, 'Equity and General Principles of La\+,: 25 ICLQ, 1976, p. 801; B. Cheng,'Justice and Equity in International Law', 8 Current Legal Problems, 1955, p. 185; V. Degan,
L'Eqtlite et leDroit International, Paris, 1970; C, de Visscher, De 1'Eqtlite dans ZeReglemerzt
Arbitral O I LJudiciaire des Litiges de Droit Internatiolzal Public, Paris, 1972; E. Lauterpacht,'Equity, Evasion, Equivocation and Evolution in International Law', Proceedings of theAmerican Branch of the ILA, 1977-8, p. 33, and E. Lauterpacht, Aspects of the Adrniilistration of International Justice, Cambridge, 1991, pp. 117-52; R. P.Jennings, 'Equity
and Equitable Principles, Ailnunire Suisse deDroit International, 1986, p. 38; Oppenheinl's
Irlterrlational Law, p. 43; R. Higgins, Problems and Process, Oxford, 1994, chapter 13;
M. Miyoshi, Considerations of Equity in the Settleiflent of Territorial and Boui~daryDisputes, The Hague, 1993; S. Rosenne, 'Equitable Principles and the Conlpulsory Jurisdiction of International Tribunals', Festschrift fur RudolfBindschedler, Berne, 1980, p. 410,
and Rosenne, 'The Position of the International Court of Justice on the Foundations of
the Principle of Equity in International Law' in Forty Years International Court of Justice:
J~~risdiction,
Eqtlality and Equity (eds. A. Bloed and P. Iran Dijk), Dordrecht, 1988, p. 108;
Pirotte, 'La Notion d'Equite dans la Jmisprudence Recente de la CIJ: 77 Revue Gentrale
de Droit International Public, 1973, p. 131; Chattopadhyay, 'Equity in International Law:
Its Growth and Development', 5 Georgia Jotlrnul of International and Conzparati1,e Law,
1975, 17. 381; R. Lapidoth, 'Equity in International Law', 22 Israel Law Review, 1987, p.
161; Schachter, International L a w , p. 49; A. V. Lowe, 'The Role of Equity in International
Law: 12 Australian YIL, 1992, p. 54; P. Iieil, 'L'Equite dans la Jurisprudence de la CourInternational de J~~stice'in Lowe and Fitzmaurice, Ftfty Years of the Ir~ternationalCourtof Justice, p. 121, and Thirlway, 'Law and Procedure of the ICJ (Part One)', p. 49. Noteespecially Judge M7eeramantry's study of equity in the Jan Mayen (Denmark v. Norway)
case, ICJ Reports, 1993, pp. 38, 211; 99 ILR, pp. 395, 579.
13' Equity generally inay be understood in the contexts of adapting law to particular areas orchoosing between several different interpretations of the law (equity infru legem), filling
gaps in the law (equity praetor legem) and as a reason for not applying unjust laws (equity

100

I N T E R N A T I O N A L LAW

the values of the system. The most famous decision on these lines was thatof Judge Hudson in the Diversion of Water from the Meuse case136in 1937
regarding a dispute between Holland and Belgium. Hudson pointed outthat what are regarded as principles of equity have long been treated aspart of international law and applied by the courts. 'Under article 38 of
the Statute', he declared, 'if not independently of that article, the Court
has some freedom to consider principles of equity as part of the international law which it must apply.' However, one must be very cautious ininterpreting this, although on the broadest level it is possible to see equity(on an analogy with domestic law) as constituting a creative charge in legal development, producing the dynamic changes in the system renderedinflexible by the strict application of rules.13'
The concept of equity1" has been referred to in several cases. In the
Rann of Kutch Arbitration between India and Pakistan in 19681j9 the
Tribunal agreed that equity formed part of international law and that
accordingly the parties could rely on such principles in the presentationof their cases.l4' The International Court of Justice in the North Sea Continental Shelf cases directed a final delimitation between the parties West Germany, Holland and Denmark - 'in accordance with equitableprinciple^"^' and discussed the relevance to equity in its consideration of
the Barcelona Traction case.'42 Judge Tanaka, however, has argued for awider interpretation in his Dissenting Opinion in the Second Phase of thecorltra legern): see Akehurst, 'Equity', and Judge Jt'eeramantry, the Jan Mayen case, ICJ
Reports, 1993, pp. 38,226-34; 99 ILR, pp. 395,594-602. See also below, chapter 17, forthe extensive use of equity in the context of state succession.
'j6 PCIJ, Series AIB, No. 70, pp. 73, 77; 8 AD, pp. 444, 450.
13' See e.g. J ~ ~ dWeeramantry,ge
the Jan Mayen (De~imarkv.Norway) case, ICJ Reports, 1993,
pp. 38, 217; 99 ILR, pp. 395, 585. Cf. Judge Schwebel's Separate Opinion, ICT Reports,
1993, p. 118; 99 ILR, p. 486.
Note that the International Court in the Tunisia /Libya Continerltal Shelfcase, ICJ Reports,
1982, pp. 18, 60; 67 ILR, pp. 4, 53, declared that 'equity as a legal concept is a direct
emanation of the idea ofjustice: However, see G. Abi-Saab's reference to the International
Court's 'flight into equity' in 'The ICI as a World Court' in Lowe and Fitzmaurice, Fifty
Years of tlze International Court of Justice, pp. 3, 11.
' j 9 50 ILR, p. 2.
Ibid., p. 18. In deciding the course of the boundary in tx4,o deep inlets, the Tribunal had
recourse to the concept of equity: ibid., p. 520.
ICJ Reports, 1969, pp. 3, 53; 41 ILR, pp. 29, 83. Equity was used in the case in order
to exclude the use of the equidistance method in the particular circumstances: ibid., pp.
48-50; 41 ILR, pp. 78-80.
ICJ Reports, 1970, p. 3; 46 ILR, p. 178. See also the Rurkina Fasov. Mali case, ICJ Reports,
1986, pp. 554,631-3; 80ILR, pp. 459,532-5.

'"

'"
'"
'"

South- West Africa cases'43 and has treated the broad concept as a sourceof human rights ideas.144
However, what is really in question here is the use of equitable principles
in the context of a rule requiring such an approach. The relevant courts
are not applying principles of abstract justice to the cases,14' but rather
deriving equitable principles and solutions from the applicable law.146The
Court declared in the Libya/Malta case1" that 'the justice of which equity
is an emanation, is not an abstract justice but justice according to the ruleof law; which is to say that its application should display consistency and a
degree of predictability; even though it also looks beyond it to principles
of more general application'.
Equity has been used by the courts as a way of mitigating certain inequities, not as a method of refashioning nature to the detriment of legal
rules.14' Its existence, therefore, as a separate and distinct source of law
is at best highly controversial. As the International Court noted in the
Tunisia/Libya Continental shelfcase,14"
it is bound to apply equitable principles as part of iilterilational law, and tobalance up the various considerations which it regards as relevant in ordert o produce an equitable result. While it is clear that n o rigid rules exist as tothe exact weight to be attached to each element in the case, this is very far
from being an exercise of discretion or conciliation; nor is it an operationof distributive justice.'"

ICJ Reports, 1966, pp. 6,294-9; 37 ILR, pp. 243,455-9. See also the Corfu Channel case,
ICJ Reports, 1949, pp. 4,22; 16 AD, p. 155.
' 4 4 See also AMCO v. Republic of Indonesia, 89 ILR, pp. 366, 522-3.
'45 The International Court of Justice may under article 38(2) of its Statute decide a case exaequo et hono if the parties agree, but it has never done so.
See the North Sea Contirlental Shelfcases, ICJ Reports, 1969, pp. 3,47; 41 ILR, pp. 29, 76,
and the Fisheries Jurisdictiofi cases, ICJ Reports, 1974, pp. 3, 33; 55 ILR, pp. 238, 268. The
Court reaffirmed in the Libya/Malta case, ICJ Reports, 1985, pp. 13, 40; 81 ILR, pp. 238,
272, 'the principle that there can be no question of distributive justice'.
ICJ Reports, 1985, pp. 13, 39; 81 ILR, pp. 238,271.
'48 See the North Sea Continental Shelfcases, ICJ Reports, 1969, pp. 3,49-50; 41 ILR, pp. 29,
78-80, and the Anglo-French Continental Shelf case, Cinnd 7438, 1978, pp. 116-17; 54
ILR, pp. 6,123-4. See also the Tunisia/Libya Continental Shelfcase, ICJ Reports, 1982, pp.
18, 60; 67 ILR, pp. 4, 53, and the Gulfof Maine case, ICJ Reports, 1984, pp. 246, 313-14
and 325-30; 71 ILR, pp. 74, 140-1 and 152-7.
ICJ Reports, 1982, pp. 18, 60; 67 ILR, pp. 4,53.
150 See generally R. Y.Jennings, 'The Priilciples Governing Marine Boundaries' in Festschri'ft
fur Karl Doehring, Berlin, 1989, p. 408, and M. Bedjaoui, 'L"tnigrne" des "principes
tquitables" dans le Droit des Delimitations Maritimes', Revista Espufiol de Derecho Internacional, 1990, p. 376.
14'

'"
'"

'"

102

I N T E R N A T I O N A L LAW

The use of equitable principles, however, has been particularly marked
in the 1982 Law of the Sea Convention. Article 59, for example, provides
that conflicts between coastal and other states regarding the exclusive
economic zone are to be resolved 'on the basis of equity', while by article
74 delimitation ofthe zone between states with opposite or adjacent coasts
is to be effected by agreement on the basis of international law in orderto achieve an equitable solution. A similar provision applies by article 83
to the delimitation of the continental shelf.''' These provisions possess
flexibility, which is important, but are also somewhat uncertain. Precisely
how any particular dispute may be resolved, and the way in which that is
likely to happen and the principles to be used are far from clear and anelement ofunpredictability may have been i n t r ~ d u c e d . "The~ Convention
on the Law of the Non-Navigational Uses of International Watercourses,
1997,15' also lays great emphasis upon the concept of equity. Article 5,
for example, provides that watercourse states shall utilise an international
watercourse in an equitable and reasonable manner both in their own
territories and in participating generally in the use, development andprotection of such a watercourse.
Equity may also be used in certain situations in the delimitation of nonmaritime boundaries. Where there is no evidence as to where a boundaryline lies, an international tribunal may resort to equity. In the case of
Burkina ~ a s o / ~ e p u b l i c o f ~ a forl i , example,'~~
the Court notedwith regard
to the pool of Soum, that 'it must recognise that Soum is a frontier pool;and that in the absence of any precise indication in the texts ofthe positionof the frontier line, the line should divide the pool of Soum in an equitablemanner'. This would be done by dividing the pool equally. Although equity
did not always mean equality, where there are no special circumstances
the latter is generally the best expression of the former.15' The Court alsoemphasised that 'to resort to the concept of equity in order to modify anestablished frontier would be quite unjustified'.15"'" See also article 140 providing for the equitable sharing of financial and other benefits
derived from activities in the deep sea-bed area.

'" However, see Cattzerootz v. Nigeria, ICJ Reports, 2002, paras. 294 ff and see further below,
chapter 11, p. 527.
Based on the Draft Articles of the International Law Commission: see the Report of theInternational Law Commission on the Work of its Forty-Sixth Session, Al49110, 1994,
pp. 197, 218 ff.
'j4 ICJ Reports, 1986, pp. 554, 633.
1 5 j Ibid.
Ibid. See also the El SalvadorlHondt~rascase, ICJ Reports, 1992, pp. 351, 514-15, and the
Brcko case, 36 ILM, 1997, pp. 396,427 ff. However, note that in the latter case, the Arbitral
Tribunal \\,as expressly authorised to apply 'relevant legal and equitable principles': see
15'

SOURCES

103

Although generalised principles or concepts that may be termed community value-judgements inform and pervade the political and therefore
the legal orders in the broadest sense, they do not themselves constitute assuch binding legal norms. This can only happen if they have been accepted
as legal norms by the international community through the mechanisms
and techniques of international law creation. Nevertheless, 'elementary
principles of humanity' may lie at the base of such norms and help justify
their existence in the broadest sense, and may indeed perform a valuablerole in endowing such norms with an additional force within the system.
The International Court has, for example, emphasised in the Legality of
the Threat or Use of Nuclear Weapo~zsAdvisory 0pinion1j7 that at theheart of the rules and principles concerning international humanitarian
law lies the 'overriding consideration of humanity',

Judicial decisions158
Although these are, in the words of article 38, to be utilised as a subsidiarymeans for the determination of rules of law rather than as an actual source
oflaw, judicial decisions can be ofimmense importance. While by virtue ofarticle 59 of the Statute of the International Court of Justice the decisionsof the Court have no binding force except as between the parties and inrespect of the case under consideration, the Court has striven to follow its
previous judgments and insert a measure of certainty within the process:so that while the doctrine of precedent as it is known in the common law,whereby the rulings of certain courts must be followed by other courts,
does not exist in international law, one still finds that states in disputes
and textbook writers quote judgments of the Permanent Court and theInternational Court of Justice as authoritative decisions.
The International Court of Justice itselfwill closely examine its previous
decisions and will carefully distinguish those cases which it feels should
article V of Annex 2 of the Dayton Accords, 1995, ibid., p. 400. See also J. M. Sorel,'L'Arbitrage sur la Zona de Brcko Tragi-comedie en Trois Actes et un Epilogue a Suivre',
AFDI, 1997, p. 253.
lS7 ICJ Reports, 1996, paras. 79 and 95; 35 ILL$, 1996, pp. 809, 827 and 829. See also the
Corfu Channel case, ICT Reports, 1949, pp. 4,22; 16 AD, p. 155. See further below, chapter
21, p. 1055.
lS8 See e.g. Lauterpacht, Developrrlent of Irlterrlational Law; IValdock, 'General Course', andSchwarzenberger, International Law, pp. 30 ff. See also Thirlway, 'Law and Procedure of
the ICJ (Part Two)', pp. 3, 127, and P. Cahier, 'Le RBle du Juge dans 1'Elaboration duDroit International' in Theory of International Lutv at the Threshold o f the 21st Century(ed. 1. Makerczyk), The Hague, 1996, p. 353.

104

I N T E R N A T I O N A L LAW

not be applied to the problem being studied.'j9 But just as English judges,
for example, create law in the process of interpreting it, so the judges of
the International Court of Justice sometimes do a little more than merely'determine' it. One of the most outstanding instances of this occurred in
the Anglo-Norwegian Fisheries case,160 with its statement of the criteria
for the recognition of baselines from which to measure the territorialsea, which was later enshrined in the 1958 Geneva Convention on the
Territorial Sea and Contiguous Zone.
Other examples include the Reparations case,I6' which recognised thelegal personality of international institutions in certain cases, the Genocide case,162which dealt with reservations to treaties, and the Nottebohm
case,163which considered the role and characteristics of nationality.
Of course, it does not follow that a decision of the Court will be invariably accepted in later discussions and formulations of the law. One
example of this is part of the decision in the Lotus case,I6" which wascriticised and later abandoned in the Geneva Conventions on the Law of
the Sea. But this is comparatively rare and the degree of respect accorded
to the Court and its decisions renders its opinions vital to the growth andexposition of international law.
In addition to the Permanent Court and the International Court ofJustice, the phrase 'judicial decisions' also encompasses international arbitral awards and the rulings of national courts. There have been many international arbitral tribunals, such as the Permanent Court of Arbitration
created by the Hague Conferences of 1899 and 1907 and thevarious mixedclaims tribunals, including the Iran-US Claims Tribunal, and, although
they differ from the international courts in some ways, many of theirdecisions have been extremely significant in the development of international law. This can be seen in the existence and number of the Reports ofInternational Arbitral Awards published since 1948 by the United Nations.
One case that should be mentioned is the Alabama Claims arbitration,16j which marked the opening of a new era in the peaceful settlementof international disputes, in which increasing use was made of judicial
and arbitration methods in resolving conflicts. This case involved a vessel
built in Liverpool to the specifications of the Confederate States, which
See further Shahabuddeen, Precedent.
160 ICJ Reports, 1951, p. 116; 18 ILR, p. 86. See further below, chapter 11, p. 495.

ICJ Reports, 1949, p. 174; 16 AD, p. 318. See further below, chapter 23, p. 1188.
ICJ Reports, 1951, p. 15; 18 ILR, p. 364.
163 ICJ Reports, 1955, p. 4; 22 ILR, p. 349.
PCIJ, Series A, No. 10, 1927, p. 18; 4 AD, p. 5. See below, p. 552.
165 1. B. Moore, Internutionul Arbitrutions, New York, 1898, vol. I, y . 653.

I''

16'

SOURCES

105

succeeded in capturing some seventy Federal ships during the American
Civil War. The United States sought compensation after the war for the
depredations of the Alabama and other ships and this was accepted by the
Tribunal. Britain had infringed the rules of neutrality and was accordingly
obliged to pay damages to the United States.
Another illustration of the impact of such arbitral awards is the IslandofPalrvzas caseIhhwhich has proved of immense significance in the subjectof territorial sovereignty and will be discussed later.
As has already been seen, the decisions of municipal courts'67 may
provide evidence of the existence of a customary rule. They may also
constitute evidence of the actual practice of states which, while not adescription of the law as it has been held to apply, nevertheless affords
examples of how states actually behave, in other words the essence of thematerial act which is so necessary in establishing a rule of customary law.
British and American writers, in particular, tend to refer fairly extensively
to decisions of national courts.
One may, finally, also point to decisions by the highest courts of federal states, like Switzerland and the United States, in their resolution of
conflicts between the component units of such countries, as relevant to
the development of international law rules in such fields as boundary disputes. A boundary disagreement between two US states which is settled
by the Supreme Court is in many ways analogous to the International
Court of Justice considering a frontier dispute between two independent
states, and as such provides valuable material for international law.168

Article 38 includes as a subsidiary means for the determination of rulesof law, 'the teachings of the most highly qualified publicists of the various
nations'.
2 RIAA, p. 829; 4 AD, p. 3. See also the Beagle Channel award, H M S O , 1977; 52 ILR, p. 93,
and the Anglo-French Continental Slzelfcase, Cmnd 7438, 1978; 54 ILR, p. 6.
16' See e.g. Thirty Hogsheads of Sngnr, Benfzon v. Boyle 9 Cranch 191 (1815);the Paquete
Habana 175 US 677 (1900) and the Scotia 14 Wallace 170 (1871).See also the Lotus case,
PCIJ, Series A, No. 10,1927, p. 18; 4 AD, p. 153. For further examples in the fields of stateand diplo~naticimmuilities particularly, see below, chapter 13.
See e.g. Verrnontv.New Hanlpshire289 US 593 (1933) andlowav. Illinois 147 US 1 (1893).
1' 3' Seee.g. Parry, BritishDigest,pp. 103-5 and Lauterpacht, Developn~entofInternationalLa~~~,pp. 23-5. See also R. Y.Jennings, 'International Lawyers a i d the Progressive Developlneilt
of Interilatioilal Law' in Makerczyk, Theory of International Law at the Threshold ofthe
2lst Century, 1996, p. 325.

'66

106

I N T E R N A T I O N A L LAW

Historically, of course, the influence of academic writers on the development of international law has been marked. In the heyday of Natural
Law it was analyses and juristic opinions that were crucial, while the roleof state practice and court decisions was of less value. Writers such as
Gentili, Grotius, Pufendorf, Bynkershoek and Vattel were the supreme
authorities of the sixteenth to eighteenth centuries and determined thescope, form and content of international law.'"
With the rise of positivism and the consequent emphasis upon statesovereignty, treaties and custom assumed the dominant position in the
exposition of the rules of the international system, and the importanceof legalistic writings began to decline. Thus, one finds that textbooks areused as a method of discovering what the law is on any particular point
rather than as the fount or source of actual rules. There are still somewriters who have had a formative impact upon the evolution ofparticularlaws, for example Gidel on the law of the sea,'" and others whose general
works on international law tend to be referred to virtually as classics, forexample Oppenheim and Rousseau, but the general influence of textbook
writers has somewhat declined.
Nevertheless, books are important as a way of arranging and putting
into focus the structure and form of international law and of elucidating
the nature, history and practice of the rules of law. Academic writings also
have a useful role to play in stimulating thought about the values and aims
of international law as well as pointing out the defects that exist within
the system, and making suggestions as to the future.
Because of the lack of supreme authorities and institutions in the international legal order, the responsibility is all the greater upon the publicistsof the various nations to inject an element of coherence and order into
the subject as well as to question the direction and purposes of the rules.
States in their presentation of claims, national law officials in their opinions to their governments, the various international judicial and arbitralbodies in considering their decisions, and the judges of municipal courts
when the need arises, all consult and quote the writings of the leading
juristic a ~ t h 0 r i t i e s . l ~ ~Of course, the claim can be made, and often is, that textbook writers
merely reflect and reinforce national prejudice^,"^ but it is an allegation"O

See above, chapter 1.

Drott Internatior~alPublic de la Meu, Chateauroux, 3 vols., 1932-4.
See Brownlie, Principles, pp. 25-6.
17' See e.g. Huber in the Spanish Zone ofMorocco case, 2 RIAA, pp. 615, 640; 2 AD, pp. 157,
164 (note).See also Carty, Decay of International Law?, pp. 128-31.
17'

l''

SOURCES

107

which has been exaggerated. It should not lead us to dismiss the valueof writers, but rather to assess correctly the writer within his particularenvironment.
Other possible sources of international law
In the discussion of the various sources of law prescribed by the Statute of
the International Court of Justice, it might have been noted that there is adistinction between, on the one hand, actual sources of rules, that is thosedevices capable of instituting new rules such as law-making treaties, customary law and many decisions of the International Court of Justice since
they cannot be confined to the category of merely determining or elucidating the law, and on the other hand those practices and devices which
afford evidence of the existence of rules, such as juristic writings, manytreaty-contracts and some judicial decisions both at the international andmunicipal level. In fact, each source is capable, to some extent, of bothdeveloping new law and identifying existing law. This results partly fromthe disorganised state of international law and partly from the terms ofarticle 38 itself.
A similar confusion between law-making, law-determining and lawevidencing can be discerned in the discussion ofthe various other methodsof developing law that have emerged since the conclusion of the Second
World War. Foremost among the issues that have arisen and one thatreflects the growth in the importance of the Third World states and thegradual de-Europeanisation of the world order is the question of thestanding of the resolutions and declarations of the General Assembly of
the United ~ a t i o n s . ' ~ ~See e.g. 0 . Y. Asamoah, The Legrzl Significruzce of the Declarations of the Gerzeral Assemblyof the United Nations, The Hague, 1966; D. Tohnson, 'The Effect of Resolutions of theGeneral Assembly of the United Nations: 32 BYIL, 1955-6, p. 97; J. Castaneda, Legal
Effects of United Nations Resolmtions, New I'ork, 1969, and R. A. Falk, 'On the QuasiLegislative Competence of the General Assembly', 60 ATIL, 1966, p. 782. See also A.
Cassese, Intel.natiorlal Law ill a Divided World, London, 1986, pp. 192-5; M. Virally, 'La
Valeur Juridique des Reconlmendations des Organisations Internationales', AFDI, 1956,
p. 69; B. Sloan, 'The Binding Force of a Recornillendation of the General Assembly of theUnited Nations', 25 BYIL, 1948, p. 1, and Sloan, 'General Assembly Resolutions Revisited(40 Years After): 58 BYIL, 1987, p. 39; Thirlway, 'Law and Procedure ofthe ICJ (Part One)',p. 6; 0 . Schachter, 'United Nations Law', 88 AJIL, 1994, p. 1; A. Pellet, 'La Formation duDroit International dam le Cadre des Nations Unies: 6 EJIL,1995, p. 401, and S. Schwebel,'United Nations Resolutions, Recent Arbitral Awards and C~lstonlaryInternational Law'
in Realisni in Law-Making (eds. hl. Bos and H. Siblesz), Dordrecht, 1986, p. 203. See also
Tudge M7eeramantry's Dissenting Opinion in the East Timor case, ICT Reports, 1995, pp.
90, 185.

108

I N T E R N A T I O N A L LAW

Certain resolutions of the Assembly'75 are binding upon the organs
and member states of the United Nations. Other resolutions, however,are not legally binding and are merely recommendatory, putting forward
opinions on various issues with varying degrees of majority support. Thisis the classic position and reflects the intention that the Assembly was
to be basically a parliamentary advisory body with the binding decisions
being taken by the Security Council.
Nowadays, the situation is somewhat more complex. The Assembly has
produced a great number of highly important resolutions and declarations and it was inevitable that these should have some impact upon the
direction adopted by modern international law. The way states vote in
the General Assembly and the explanations given upon such occasions
constitute evidence of state practice and state understanding as to the law.
Where a particular country has consistently voted in favour of, for example, the abolition of apartheid, it could not afterwards deny the existenceof a usage condemning racial discrimination and it may even be that thatusage is for that state converted into a binding custom.
The Court in the Nicaragua case tentatively expressed the view that theopinio juris requirement could be derived from the circumstances surrounding the adoption and application of a General Assembly resolution.
It noted that the relevant
opinio jzrris may, though with all due caution, be deduced from, inter ulia,
the attitude of the Parties [i.e. the US and Nicaragua] and the attitude ofStates towards certain General Assembly resolutions, and particularly resolution 2625 (XXV) entitled 'Declaration on Principles of International Law
concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United nation^'."^The effect of consent to resolutions such as this one 'may be understoodas acceptance of the validity of the rule or set of rules declared by the
resolution by themsel~es'."~This comment, however, may well have referred solely to the situation where the resolution in question defines or
elucidates an existing treaty (i.e. Charter) commitment.
Where the vast majority of states consistently vote for resolutions anddeclarations on a topic, that amounts to a state practice and a binding
rule may very well emerge provided that the requisite opinio juris can be
17j See e.g, article 17 of the UN Charter.

ICJ Reports, 1986, pp. 14, 99-100; 76 ILR, pp. 349,433-4.
177 ICJ Reports, 1986, p. 100; 76 ILR, p. 434.

SOURCES

109

proved. For example, the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples, which was adopted with no
opposition and only nine abstentions and followed a series of resolutions
in general and specific terms attacking colonialism and calling for the
self-determination of the remaining colonies, has, it would seem, marked
the transmutation of the concept of self-determination from a politicaland moral principle to a legal right and consequent obligation, particularly taken in conjunction with the 1970 Declaration on Principles ofInternational ~ a w . ' ~ ~Declarations such as that on the Legal Principles Governing Activities
of States in the Exploration and Use of Outer Space (1963) can also be
regarded as examples of state practices which are leading to, or have led
to, a binding rule of customary law. As well as constituting state practice,
it may be possible to use such resolutions as evidence of the existenceof or evolution towards an opinio juris without which a custom cannot
arise. Apart from that, resolutions can be understood as authoritativeinterpretations by the Assembly of the various principles of the United
Nations Charter depending on the circumstance^."^Accordingly, such resolutions are able to speed up the process of thelegalisation of a state practice and thus enable a speedier adaptation ofcustomarylaw to the conditions ofmodern life. The presence of representatives of virtually all of the states of the world in the General Assembly
enormously enhances the value of that organ in general political terms
and in terms of the generation of state practice that may or may not leadto binding custom. As the International Court noted, for example, in the
Nicaragua case,'80'the wording of certain General Assembly declarations
adopted by states demonstrates their recognition of the principle of theprohibition of force as definitely a matter of customary international law'.
The Court put the issue the following way in the Legality of the Threat or
Use of Nuclear Weapons Advisory 0pinion:18'
The Court notes that General Assembly resolutions, even if they are
not binding, may sometimes have normative value. They can, in certain
See further below, chapter 5, p. 225.
See e.g. 0 . Schachter, 'Interpretation of the Charter in the Political Organs of the United
Nations' in Latv, States artd hiterriational Order, 1964,p.269; R. Higgins, The Developmentof Irlterrlational Laiv Tl~roughthe Political Orgaans of tltc United Nations, Oxford, 1963,
and M. N. Sham., Title to Territory in Africa: International Legal Issues, Oxford, 1986,
chapter 2.
lX0 ICJ Reports, 1986, pp. 14, 102; 76 ILR, pp. 349,436.
lX1 ICJ Reports, 1996, para. 70; 35 ILM, 1996, pp. 809, 826.
17'

17'

110

I N T E R N A T I O N A L LAW

circumstances, provide evidence important for establishing the existenceof a rule or the emergence of an opinio juris. To establish whether this is trueof a General Assembly resolution, it is necesary to look at its content andthe conditions of its adoption; it is also necessary to see whether a n opirzio
jurisexists as to its normative character. Or a series of resolutions may show
the gradual evolution of the opinio juris required for the establishment ofa nexv rule.

The Court in this case examined a series of General Assembly resolutions concerning the legality of nuclear weapons and noted that severalof them had been adopted with substantial numbers of negative votes
and abstentions. It was also pointed out that the focus of such resolutions
had not always been constant. The Court therefore concluded that theseresolutions fell short of establishing the existence of an opinio juris on theillegality of nuclear weapons.ls2
Nevertheless, one must be alive to the dangers in ascribing legal value
to everything that emanates from the Assembly. Resolutions are often the
results of political compromises and arrangements and, comprehended inthat sense, never intended to constitute binding norms. Great care must
be taken in moving from a plethora of practice to the identification oflegal norms.
As far as the practice of other international organisations is concerned,ls3the same approach, but necessarily tempered with a little morecaution, may be adopted. Resolutions may evidence an existing custom orconstitute usage that may lead to the creation of a custom and the opinio
juris requirement may similarly emerge from the surrounding circumstances, although care must be exercised here.la4
It is sometimes argued more generally that particular non-binding
instruments or documents or non-binding provisions in treaties form a
special category that may be termed 'soft law'. This terminology is meant
to indicate that the instrument or provision in question is not of itself'law', but its importance within the general framework of international
legal development is such that particular attention requires to be paid to

Ibid.,para. 71; 35 ILM, 1996, p. 826.
See generally, as to other international organisations in this context, A. J. P. Tammes,'Decisions of International Organs as a Source of International Law: 94 HR, 1958, p.
265; Irirally, 'La Valeur Juridique: p. 66, and H. Thierry, 'Les Resolutions des Organes
de la Cour Internationale de rustice: 167 HR, 1980,
Internationaux dans la J~~risprudence
p. 385.
l X 4 See the Nicaragua case, ICJ Reports, 1986, pp. 14, 100-2; 76 ILR, pp. 349,434-6.
lX2
IS'it.''' 'Soft law' is not law. That needs to be emphasised, but a document,
for example, does not need to constitute a binding treaty before it can
exercise an influence in international politics. The Helsinki Final Act
of 1975 is a prime example of this. This was not a binding agreement,
but its influence in Central and Eastern Europe in emphasising the roleand importance of international human rights proved incalculable.186
Certain areas of international law have generated more 'soft law', in thesense of the production of important but non-binding instruments, thanothers. Here one may cite particularly international economic law'87andinternational environmental
The use of such documents, whether
termed, for example, recommendations, guidelines, codes of practice or
standards, is significant in signalling the evolution and establishment ofguidelines, which may ultimately be converted into legally binding rules.
They are important and influential, but do not in themselves constitutelegal norms.
A study by the US State Department concerning non-binding international agreements between stateds9noted thatit has long been recognised in international practice that governments may
agree o n joint statements of policy or intention that do not establish legal
obligations. In recent decades, this has become a common means of announcing the results of diplomatic exchanges, stating common positions
185 See e.g. M. Bothe, 'Legal and Non-Legal Norms - A Meaningful Distinction in Interna-

tional Relations: l l Netherlands YIL, 1980, p. 65; I. Seidl-Hohenveldern, 'International
Internatiorlal EcoEconomic Soft Law', 163 HR, 1980, p. 164, and Seidl-Hohen~~eldern,nomic Law, 2nd edn, Dordrecht, 1992, p. 42; J. Gold, 'Strengthening the Soft International
Law of Exchange Arrangements', 77 AJIL, 1983, p. 443; PASIL, 1988, p. 371; G. J. H. Van
Hoof, Re-tl~inkingtlieSourcesoflnternational Law, Deventer, 1983, p. 187; C. M. Chinkin,'The Challenge of Soft La~v:Delielopment and Change in International Law', 38 ICLQ,
1989,p.850; L. Henkin, InternationalLaw, Politics and X'alues, Dordrecht, 1995, pp. 94 and192; Thierry, 'Les Rt.solutions', pp. 70-1; W. M. Reisman, 'The Concept and Functions ofSoft Law in International Politics' in Essays in Honour of Judge Taslim Olawale Elias (eds.
E . G. Bello and B. Ajibola), Dordrecht, 1992, vol. I, p. 135; A. E. Boyle, 'Some Reflections
on the Relationship of Treaties and Soft Law', 48 ICLQ, 1999, p. 901; F. Francioni, 'International "Soft Law": A Contemporary Assessment' in Lowe and Fitzmaurice, Fifty Earso f t h e International Court ofJustice,p. 167, and Conzrnitnlent and Compliance: The Role of
Non-Bindirighrornls in the Internatiorlal Legal Systeri~(ed. D. Shelton), Oxford, 2000.
lX6 See e.g. the reference to it in the Nicaragua case, ICT Reports, 1986, pp. 3, 100; 76 ILR,
pp. 349,434.
lX7 See e.g. Seidl-Hohenveldern, International Econornic Law, pp. 42 ff.
188 See e.g. P. Birnie and A. Boyle, International Law and the Environment, 2nd edn, Oxford,
2002, pp. 24 ff.
18' Memorandum of the Assistant Legal Adviser for Treaty Affairs, US State Department,
quoted in 88 AJIL, 1994, pp. 515 ff.

112

I N T E R N A T I O N A L LAW

o n policy issues, recording their intended course of action o n matters ofmutual concern, or making political commitments to one another. These
documents are sometimes referred to as non-binding agreements, gentlemen's agreements, joint statements or declarations.

What is determinative as to status in such situations is not the title given
to the document in question, but the intention of the parties as inferred from all the relevant circumstances as to whether they intended
to create binding legal relationships between themselves on the matter inquestion.

The International Law Commission
The International Law Commission was established by the General Assembly in 1947 with the declared object of promoting the progressive
development of international law and its c o d i f i c a t i ~ n . 'It~ ~consists ofthirty-four members from Africa, Asia, America and Europe, who remain
in office for five years each and who are appointed from lists submitted bynational governments. The Commission is aided in its deliberations byconsultations with various outside bodies including the Asian-African
Legal Consultative Committee, the European Commission on Legal
Co-operation and the Inter-American Council of ~ u r i s t s . ' ~ 'Many of the most important international conventions have grownout of the Commission's work. Having decided upon a topic, the International Law Commission will prepare a draft. This is submitted to thevarious states for their comments and is usually followed by an international conference convened by the United Nations. Eventually a treaty will
emerge. This procedure was followed in such international conventions
See, as to the relationship between codification and progressive de~elopment,Judge ad
hoc Sorensen's Dissenting Opinion in the North Sea Continental Shelfcases, ICJ Reports,
1969, pp. 3,242-3; 41 ILR, pp. 29,217-19.
19' See articles 2 , 3 and 8 ofthe Statute ofthe ILC. See also e.g. B. Ramcharan, TheInternatio~zal
Law Cornniission, Leiden, 1977; Tlte Work of the Internatiorlal Latv Commission, 4th edn,
New York, 1988; I. Sinclair, The International Law Conzrnission, Cambridge, 1987; Tlze
Internatiorlal Law Co~ilrrlissioriartd the Future ofblternatiorlal Law) (eds. M . R. Anderson,
Law on the
A. E. Boyle, A. V. Lowe and C. Wickremasinghe), London, 1998; Ir~ternatio~zal
Eve o f the Twenty-first Century: Vietrs frorri the Internatiorlal Latv Comniissiori, New York,
1997; S. Rosenne, 'The International Law Commission 1949-59: 36 BYIL, 1960, p. 104,
and the International Law Commission:and Rosenne, 'Relations Between Go~~ernments
19 YBWA, 1965, p. 183; B. Graefrath, 'The Interilatioilal Law Cominissioil Tomorrow:
Improving its Organisation and Methods of llTork: 85 AJIL, 1991, p. 597, and R. P.
Dhokalia, The Codification of Public International Law, Manchester, 1970.
I9O

SOURCES113

as those on the Law ofthe Sea in 1958, Diplomatic Relations in 1961, Consular Relations in 1963, Special Missions in 1969 and the Law ofTreaties in
1969. Of course, this smooth operation does not invariably occur, witness
the many conferences at Caracas in 1974, and Geneva and New York from1975 to 1982, necessary to produce a new Convention on the Law of the
Sea.
Apart from preparing such drafts, the International Law Commission
also issues reports and studies, and has formulated such documents as theDraft Declaration on Rights and Duties of States of 1949 and the Principles
of International Law recognised in the Charter of the Nuremberg Tribunal
and in the Judgment of the Tribunal of 1950. The Commission produced aset of draft articles on the problems ofjurisdictional immunities in 1991, adraft statute for an international criminal court in 1994 and a set of draft
articles on state responsibility in 2001. The drafts of the ILC are often
referred to in the judgments of the International Court of Justice. Indeed,in his speech to the UN General Assembly in 1997, President Schwebel
noted in referring to the decision in the Gabfikovo-Nagymaros Daizube
Dan? case192that the judgment:
is notable, moreover, because of the breadth and depth of the importancegiven in it to the work product of the International Law Comn~ission.The
Court's Judgment not only draws on treaties concluded pursuant to theCommission's proceedings: those on the law of treaties, of State succession
in respect oftreaties, and the law of i~lternational~vatercourses.
It gives great
weight to some of the Commission's Draft Articles on State Responsibility,
as did both Hungary and Slovakia. This is not wholly exceptional; it rather
illustrates the fact that just as the judgments and opinions of the Court haveinfluenced the work of the International Law Commission, so the work of
the Conlmission may influence that of the Court.lY3Thus, one can see that the International Law Commission is involvedin at least two of the major sources of law. Its drafts may form the bases ofinternational treaties which bind those states which have signed and ratified them and which may continue to form part of general internationallaw, and its work is part of the whole range of state practice which can leadto new rules of customary law. Its drafts, indeed, may constitute evidenceof custom as well as contribute to the corpus of usages which may create
new law. In addition, it is not to be overlooked that the International
Law Commission is a body composed of eminently qualified publicists,lY'

ICJ Reports, 1997, p. 7; 116 ILR, p. 1.

'" See http://~\w.icj-cij.orgiicj~.~~\w/1~~resscom/SPEECHES/Gal997e.htm.

114

I N T E R N A T I O N A L LAW

including many governmental legal advisers, whose reports and studies
may be used as a method of determining what the law actually is, in muchthe same way as books.

Other bodies
Although the International Law Commission is by far the most important of the organs for the study and development of the law, there do exist
certain other bodies which are involved in the same mission. The United
Nations Commission on International Trade Law (UNCITRAL) and theUnited Nations Conference on Trade and Development (UNCTAD),
for example, are actively increasing the range of international law in thefields of economic, financial and development activities, while temporary organs such as the Committee on the Principles of International Law
have been engaged in producing various declarations and statements.
Nor can one overlook the tremendous work of the many specialised
agencies like the International Labour Organisation and the United
Nations Educational, Scientific and Cultural Organisation (UNESCO),
which are constantly developing international law in their respective
spheres.
There are also some independent bodies which are actively involvedin the field. The International Law Association and the Institut de Droit
International are the best known of such organisations which study andstimulate the law of the world community, while the various Harvard
Research drafts produced before the Second World War are still of value
today.

Unilateral acts
In certain situations, the unilateral acts of states, including statements
made by relevant state officials, may give rise to international legal obligations.'94 Such acts might include recognition and protests, which are'" See Virally, 'Sources', pp. 154-6; Brownlie, Principles, pp. 637-40; W. Fiedler, 'Unilateral Acts in International Law' in Encyclopedia of Ptrblic International Law (ed. R. Bernhardt), Amsterdam, 2000, vol. IV, p. 1018; G. Venturini, 'La Portee et les Effets Juridiquesdes Attitudes et des Actes Unilateraux des Etats', 112 HR, 1964, p. 363; J. Charpentier,'Engagement Unilaterauxet Engagements Conventionnels' in Theory oflnternational Law
at the Threshold of the 21st Century, p. 367; A. P. Rubin, 'The International Legal Effects of
Unilateral Declarations', 71 AJIL, 1977, p. 1; K. Zemanek, 'Unilateral Legal Acts Revisited'in Wellens, International Latu, p. 209; E. Suy, Les Actes Unilateraux en Droif International
Public, Paris, 1962, and J. Garner, 'The International Binding Force of Unilateral Oral

intended to have legal consequences. Unilateral acts, while not sources ofinternational law as understood in article 38(1) of the Statute of the ICJ,
may constitute sources of obligation.lg5For this to happen, the intention
to be bound of the state making the declaration in question is crucial,
as will be the element of publicity or n o t o r i e t j ~ . Such
' ~ ~ intention may
be ascertained by way of interpretation of the act, and the principle ofgood faith plays a crucial role. The International Court has stressed that
where states make statements by which their freedom of action is limited,a restrictive interpretation is required.'97 Recognition will be important
here in so far as third states are concerned, in order for such an act orstatement to be opposable to them. Beyond this, such unilateral statements may be used as evidence of a particular view taken by the state inquestion.lg8

Hierarchy of sources and jus cog en^'^^Judicial decisions and writings clearly have a subordinate function within
the hierarchy in view of article 38(1), while the role of general principles oflaw as a way of complementing custom and treaty law places that category
Declarations', 27 AJIL, 1933, p. 493. The Interilatioilal Law Coillmission has been studying the question of the Unilateral Acts of States since 1996, see Al5lil0, pp. 230 and
328-9. See also the Fifth Report, AlCN.41525, 2002.
19' See e.g, the Report of the International Law Commission, A157/10,2002, p. 215.
'96 The Nuclear Tests cases, ICJ Reports, 1974, pp. 253, 267; 57 ILR, pp. 398, 412. See also
the Request for an Exarnination o f the Situation in Accordarlce with Paragraph 63 of tile
Court's Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case,
ICJ Reports, 1995, pp. 288, 305; the Nova-Scotia/Newfoundlarln(First Phase) case, 2001,
para. 3.14 and the Eritrea/Ethiopia case, 2002, para. 4.70. Such a commitment may arise
in oral pleadings before the Court itself: see Caineroonv. Nigeria, ICJ Reports, 2002, para.
317.
lY7 Nuclear Tests cases, ICJ Reports, 1974, pp. 253, 267; 57 ILR, pp. 398, 412. See also the
Nicaragua case, ICJ Reports, 1986, pp. 14, 132; 76 ILR, pp. 349, 466, and the Burkina
Faso v. Mali case, ICJ Reports, 1986, pp. 554, 573-4; 80 ILR, pp. 459,477-8. The Courtin the North Sea Continental Shelfcases declared that the unilateral assumption of theobligations of a convention by a state not party to it was 'not lightly to be presumed', ICJ
Reports, 1969, pp. 3, 25; 41 ILR, p. 29.
19' See e.g. the references to a press release issued by the Ministry of Foreign Affairs of Norway
and the wording of a communication of the text of an agreement to Parliament by the
Norwegian Government in the Jan Mayen case, ICJ Reports, 1993, pp. 38, 51. See also
Judge Ajibola's Separate Opinion in the Libya/Chad case, ICJ Reports, 1994, pp. 6, 58.
199 See M. Akehurst, 'The Hierarchy of the Sources of International Law', 47 BYIL, 1974-5,
p. 273, and \'irally, 'Sources: pp. 165-6. See also to this effect the Third LrS Restatenzent
ofForeign Relations Law, pp. 27-8. See Dalton, 'International Agreements in the Revised
Restatement', 25 Va. JIL, 1984, pp. 153, 157-8, cf. H. Mosler, The International Society

116

I N T E R N A T I O N A L LAW

fairly firmly in third place. The question of priority as between custom
and treaty law is more complex.200As a general rule, the later in time will
have priority. Treaties are usually formulated to replace or codify existingcustom,201while treaties in turn may themselves fall out of use and be
replaced by new customary rules. There is a principle to the effect that a
special rule prevails over a general rule (lex specialis derogat legi generali),so that, for example, treaty rules between states as lex specialis would
have priority as against general rules of customary law between the samestates.202
The International Court stated in the Barcelona Traction case203that
there existed an essential distinction between the obligations of a state
towards the international community as a whole and those arising vis-avis another state in the field of diplomatic protection. By their very nature
the former concerned all states and 'all states can be held to have a legal
interest in their protection; they are obligations erga omnes'. Examples ofsuch obligations included the outlawing of aggression and of genocide. ~ this~ ~ oneand the protection from slavery and racial d i s c r i m i n a t i ~ nTo
may add the prohibition of torture.205Further, the International Court in
the East Timorcase stressed that the right of peoples to self-determination'has an erga omnes character',206while reiterating in the Bosnia Genocide(Preliminary Objections) case that 'the rights and obligations enshrinedin the Convention are rights and obligations erga ~ m n e s ' . ~ ~ 'as a Legal Community, Leiden, 1980, pp. 84-6. See also Thirlway, 'Law and Procedureof the ICJ (Part One)', p. 143; P. Weil, 'Towards Relatip-e Normativity in International
Law?', 77 AJIL, 1983, p. 413, and 'Vers une Norn~ativiteRelative en Droit International?'
86 Revue Gentrale de Droit International Public, 1982, p. 5, and U. Fastenrath, 'Relatip-e
Normativity in International Law', 4 EJIL, 1993, p. 305.
See H. Villager, Customary International Law and Treaties, Dordrecht, 1985.
lo' See R. Baxter, 'Multilateral Treaties as Evidence of Customary International Law: BYIL,
1965-6, p. 275.
lo' See the Tunisia/Libya Continental Shelfcase, ICJ Reports, 1982, pp. 18, 38; 67 ILR, pp. 4,
3 1, and the Nicaragua case, ICJ Reports, 1986, pp. 3, 137; 76 ILR, pp. 349,471.
lo' ICJ Reports, 1970, pp. 3, 32; 46 ILR, pp. 178,206.
'04 See also the Nicaragua case, ICJ Reports, 1986, pp. 14, 100; 76 ILR, pp. 349, 468, andrudge T17eeramantry'sDissenting Opinion in the East Tirnor case, ICJ Reports, 1995, pp.
90, 172 and 204. See, in addition, M. Ragazzi, The Concept of Ir~ternationalObligations
Erga Omnes, Oxford, 1997, and 1. Crawford, The International Law Comnlission's Articles
on State Responsibility, Cambridge, 2002, pp. 242-4.
*05 See e.g. the Furundiija case before the Yugoslav War Crimes Tribunal, 121 ILR, pp. 213,
260.
*06 ICJ Reports, 1995, pp. 90, 102; 105 ILR, p. 226.
'07 ICJ Reports, 1996, pp. 595, 616; 115 ILR, p. 1.

'""

This easing of the traditional rules concerning locus standi in certain
circumstances with regard to the pursuing of a legal remedy against thealleged offender state may be linked to the separate question of superior
principles in international law.
Article 53 of the Convention on the Law of Treaties, 1969, provides thata treaty will be void 'if, at the time of its conclusion, it conflicts with aperemptory norm of general international law'. This rule (jus cogens) will
also apply in the context of customary rules so that no derogation would
be permitted to such norms by way of local or special custom.
Such a peremptory norm is defined by the Convention as one 'accepted
and recognised by the international community of states as a whole as anorm from which no derogation is permitted and which can be modified
only by a subsequent norm of general international law having the samecharacter'.208The concept of jus cogens is based upon an acceptance offundamental and superior values within the system and in some respects
is akin to the notion of public order or public policy in domestic legal
ordem209It also reflects the influence ofNatural Law thinking. Various examples ofthe content of jus cogens have been provided, particularly during
the discussions on the topic in the International Law Commission, such as~
an unlawful use of force, genocide, slave trading and ~ i r a c y . "However,
It was noted in US v. Matta-Ballesteros that: 'Jus cogens norms which are nonderogableand peremptory, enjoy the highest status within customary international law, are bindingon all nations, and cannot be preempted by treaty', 71 F.3d 754, 764 n. 4 (9th circuit,1995).
'09 See e.g. J. Sztucki, J L ~Cogens
Sund tlie Vienna Convention on the Latv of Treaties, New York,
1974; I. Sinclair, The Vienr~aConver~tionon the Law of Treaties, 2nd edn, Manchester, 1984,
p. 203; M. Virally,'Reflexions sur le Jus Cogeris',12 AFDI, 1966,p.1; C. Rozakis, Tlie ConceptofJns Cogens in the Latv of Treaties, 1976; A. Cassese, International Latv, Oxford, 2001, pp.
138 ff.; Gomez Robledo, 'Le Jus Cogeils International: 172 HR, 1981 p. 17; G. Gaja, 'Jus
Cogens beyond the Vienna Conventions: 172 HR, 1981, p. 279; Crawford, ILCi Articles,
pp. 187-8 and 243; J. \'erhoeven, 'Jus Cogens and Reservations or "Counter-Reservations"to the Jurisdiction of the International Court of Justice' in Wellens, International Latv,
p. 195, and L. Hannikainen, Pel-etnptoryh'orms (Jus Cogens) in Intel-national Law, Helsinki,
1988. See also article 26 of the ILC's Articles on State Responsibility, 2001, and below,
chapter 16, p. 850.
'lo Yearbook ofthe ILC, 1966, vol. 11, p. 248. See, as regards the prohibition of torture as a ruleof jtls cogens, the decision ofthe Yugoslav War Crimes Tribunal in the Ftrrundiija case, 12 1
ILR, pp. 257-8 and 260-2; Siderrnari v. Argentina 26 F.2d 699, 714-18; 103 ILR, 17. 454,
and Ex Parte Pinocllet (No. 3 ) [2000] 1 AC 147,247 (Lord Hope), 253-4 (Lord Hutton)and 290 (Lord Phillips); 119 ILR, pp. 135, 200, 206-7 and 244. See also, as regards theprohibition of extrajudicial killing, the decision of the US District Court in Alejandre v.
Cuba 121 ILR, pp. 603,616.
'08

118

I N T E R N A T I O N A L LAW

no clear agreement has been manifested regarding other areas,211andeven the examples given are by no means uncontroverted. More important, perhaps, is the identification of the mechanism by which rules of jus
cogens may be created, since once created no derogation is permitted.
A two-stage approach is here involved in the light of article 53: first,
the establishment of the proposition as a rule of general international law
and, secondly, the acceptance of that rule as a peremptory norm by theinternational law community of states as a whole. It will be seen therefore
that a stringent process is involved, and rightly so, for the establishmentof a higher level of binding rules has serious implications for the international law community. The situation to be avoided is that of foisting
peremptory norms upon a political or ideological minority, for that in
the long run would devalue the concept. The appropriate test would thus
require universal acceptance of the proposition as a legal rule by states
and recognition of it as a rule of jus cogens by an overwhelming majorityof states, crossing ideological and political divides.212It is also clear that
only rules based on custom or treaties may form the foundation of jus
cogensnorms. This is particularly so in view of the hostile attitude of manystates to general principles as an independent source of international law
and the universality requirement of jus cogeizs formation. As article 53 of
the Vienna Convention notes, a treaty that is contrary to an existing ruleof jus cogens is void ab i n i t i ~ ,whereas~'~
by virtue of article 64 an existingtreaty that conflicts with an emergent rule of jus cogens terminates fromthe date of the emergence of the rule. It is not void ab initio, nor by article
71 is any right, obligation or legal situation created by the treaty prior to
its termination affected, provided that its maintenance is not in itself contrary to the new peremptory norm. Article 41 (2) of the ILC's Articles onState Responsibility, 2001, provides that no state shall recognise as lawful
a 'serious breach' of a peremptory n~rm.~'%eservationsthat offended arule of jus cogens may well be ~ n l a w f u l , ~while' " it has been suggested that"' See e.g. Lord Slynn in Ex Parte Pitlocllet (No. 1 ) who stated that 'Nor is there any jus cogens
in respect of such breaches of international law [international crimes] which require thata claim of state or head of state immunity.. .should be overridden', [2000] 1 AC 61, 79;
119 ILR, pp. 50, 67.
112 See e.g. Sinclair, Vier~naConvelltion, pp. 218-24, and Akehurst, 'Hierarchy:
21' See Yearbook of the ILC, 1966, vol. 11, pp. 91-2.
*'"nethat involves a gross or systematic failure by the responsible state to fulfil the obligation, article 40(2). See also article 50(d).
See e.g. Tudges Padilla Nervo, Tanaka and Sorensen in the North Sea Continental ShelJ
cases, ICJ Reports, 1969, pp. 3,97, 182 and 248; 41 ILR, p. 29. See also General Comment
No. 24 (52) of the UN Human Rights Committee, CCPR1C1211Rev.11Add.6.

SOURCES

119

state conduct violating a rule of jus cogens may not attract a claim of state
immunity.216The relationship between the rules of jus cogens and article
103 ofthe United Nations Charter, which states that obligations under theCharter have precedence as against obligations under other international
agreements, was discussed by Judge Lauterpacht in his Separate Opinion
in the Bosnia case."' He noted in particular that 'the relief which article
103 of the Charter may give the Security Council in case of conflict between one of its decisions and an operative treaty obligation cannot - asa matter of simple hierarchy of norms - extend to a conflict between a
Security Council resolution and jus cogens'
Suggestions for further reading
M. Akehurst, 'Custom as a Source of International Law', 47 BYIL, 1974-5, p. 1
B. Cheng, General Principles ofLatv as Applied by International Courts and Trihtlnals,
London, 1953
C. Parry, T h e Sources and Evidences of International Law, Cambridge, 1965
P. Weil, 'Towards Relative Normativity in International Law?',77 AJIL, 1983, p. 413
""ee

'I7

e.g. Cassese, International Law, p. 145, citing the Dissenting Opinion of rudge Waldin Princzv. Federal Republic of Germany, a decision of the US Court of Appeals, 1994,103
ILR, p. 618.
ICJ Reports, 1993, pp. 325,440; 95 ILR, pp. 43, 158.

International law and municipal law

The role of the state in the modern world is a complex one. According
to legal theory, each state is sovereign and equal.' In reality, with thephenomenal growth in communications and consciousness, and with theconstant reminder of global rivalries, not even the most powerful of states
can be entirely sovereign. Interdependence and the close-knit characterof contemporary international commercial and political society ensuresthat virtually any action of a state could well have profound repercussions
upon the system as a whole and the decisions under consideration byother states.
Thus, reality circumscribes the concept of sovereignty in operation andincreases the necessity for worldwide co-ordination of matters as different

See generally, Oppenheirn's Internatiorlal Law (eds. R. Y. Jeniliilgs and A. D. Watts), 9th edn,
London, 1992, vol. I, p. 52; J.T.1'. Verzijl, International Law in Historical Perspective, Leiden,
1968,vol. I , p. 90; R. A. Falk, The Role ofDornestic Courts in the International Legal Order,
Princeton, 1964; H . Kelsen, Principles oflrlterilational Laiv, 2nd edn, London, 1966, pp. 2904 and 551-88; I. Brownlie, Principles of Public International Law, 5th edn, Oxford, 1998,
chapter 2; H. Lauterpacht, International Law: Collected Papers, Cambridge, 1970, vol. I,
pp. 151-77; A. Cassese, International Law, Oxford, 2001, chapter 8, and Cassese, 'Modern
Constitutions and International Law', 192 HR, 1985 111, p. 335; Nguyen Quoc Dinh, P.
Daillier and A. Pellet, Droit hzternational Public, 7th edn, Paris, 2002, p. 92; R. Higgins,
Problerns and Process, Oxford, 1994, chapter 12; K. Marek, 'Les Rapports entre le Droit
International et le Droit Interne ala Lumiere de la Jmisprudence de la CIJ', Revue Ghzerale deDroit International Public, 1962, p. 260; L. Ferrari-Bravo, 'International Law and Municipal
Law: The Complementarity of Legal Systems' in The Structtrre and Process of International
Law (eds. R. St J. Macdonald and D. Johnston), Dordrecht, 1983, p. 715; F. Morgenstern,'Judicial Practice and the Supremacy of International Law', 27 BYIL, 1950, p. 42; B. Conforti,
International Law and the Role of Domestic Legal Systerrls, The Hague, 1993; J. G. Starke,'Monism and Dualism in the Theory of International Law Considered from the Standpointof the Rule of Law', 92 HR, 1957, pp. 5, 70-80; H. Thirlway, 'The Law and Procedureof the International Court of Justice, 1960-89 (Part One)', 60 BYIL, 1989, pp. 4, 114;
Report of the Committee on International Law and Municipal Law, International Law
Association: Report of the Sixty-Sixth Conference, 1994, p. 326; T.7 Erades, Interactions
Between International and Municipal Law - A Cornparative Caselaw Study, Leiden, 1993,
and V. Heiskanen, International Legal Topics, Helsinki, 1992, chapter I .

INTERNATIONAL LAW A N D M U N I C I P A L LAW

121

as the policies adopted to combat economic problems, environmental
dangers and terrorist threats.
With the rise and extension ofinternational law, questions begin to arise
paralleling the role played by the state within the international system andconcerned with the relationship between the internal legal order of a particular country and the rules and principles governing the international
community as a whole. Municipal law governs the domestic aspects ofgovernment and deals with issues between individuals, and between individuals and the administrative apparatus, while international law focuses
primarily upon the relations between states. Nevertheless, there are many
instances where problems can emerge and lead to difficulties between thetwo systems. In a case before a municipal court a rule of international law
may be brought forward as a defence to a charge. For example, a vessel
may be prosecuted for being in what, in domestic terms, is regarded as
territorial waters but in international law would be treated as part of thehigh seas.
There may also be questions as to the precise status of a municipal legal rule before an international tribunal. It is questions such asthese that will be looked at in this chapter. But first some of the various
ideas put forward as to the required frames of reference will be briefly
considered.

The theories2
Positivism stresses the overwhelming importance ofthe state and tends toregard international law as founded upon the consent of states. It is actual
practice, illustrated by custom and by treaty, that formulates the role ofinternational law, and not formalistic structures, theoretical deductions
or moral stipulations. Accordingly, when positivists such as Triepe13 andStrupp 4 consider the relationship of international law to municipal law,they do so upon the basis of the supremacy of the state, and the existenceof wide differences between the two functioning orders. This theory is' See above, chapters 1 and 2. See also J. H. Jackson, 'Status of Treaties in Domestic Legal
Systems: A Policy Analysis', 86 AJIL,1992, p. 3 10;N. Valticos, 'Pluralite des Ordres Juridiqueset Unite de Droit International Public' in Theory oflr~ternationalLatv at the Threshold ofthe
21st Century (ed. J. Markarczyk), The Hague, 1996, p. 301, and 1. Dhommeaus, 'Monismes
et Dualismes en Droit International des Droits de 1'Homme: AFDI, 1995, p. 447.
H. Triepel, Volkerrecht tlnd Landesrecht, Berlin, 1899.
qK.
Strupp, 'Les Regles Generales du Droit International de la Paix', 47 HR, 1934, p. 389. See
also D. Anzilotti, Corso di Diritto Internazionale, 3rd edn, Rome, 1928, vol. I, pp. 43 ff.

122

I N T E R N A T I O N A L LAW

known as dualism (or sometimes as pluralism) and stresses that the rulesof the systems of international law and municipal law exist separately andcannot purport to have an effect on, or overrule, the other.
This is because of the fundamentally different nature of inter-state andintra-state relations and the different legal structure employed on the
one hand by the state and on the other hand as between states. Wheremunicipal legislation permits the exercise of international law rules, thisis on sufferance as it were and is an example of the supreme authority ofthe state within its own domestic jurisdiction, rather than of any influencemaintained by international law within the internal sphere.'Those writers who disagree with this theory and who adopt the monist
approach tend to fall into two distinct categories: those who, like Lauterpacht, uphold a strong ethical position with a deep concern for humanrights, and others, like Kelsen, who maintain a monist position on formalistic logical grounds. The monists are united in accepting a unitary
view of law as a whole and are opposed to the strict division posited by
the positivists.
The 'naturalist' strand represented in England by Lauterpacht's works
sees the primary function of all law as concerned with the well-beingof individuals, and advocates the supremacy of international law as thebest method available of attaining this. It is an approach characterised bydeep suspicion of an international system based upon the sovereignty andabsolute independence of states, and illuminated by faith in the capacityof the rules of international law to imbue the international order witha sense of moral purpose and justice founded upon respect for humanrights and the welfare of individual^.^The method by which Kelsen elucidates his theory of monism ismarkedly different and utilises the philosophy of Kant as its basis. Law isregarded as constituting an order which lays down patterns of behaviour
that ought to be followed, coupled with provision for sanctions which
are employed once an illegal act or course of conduct has occurred or
been embarked upon. Since the same definition appertains within boththe internal sphere and the international sphere, a logical unity is forged,
and because states owe their legal relationship to one another to the rulesof international law, such as the one positing equality, since states cannot' See Oppenheim's International Law, p. 53.
Lauterpacht, International Law. See also Lauterpacht, International Law and Human Rights,
London, 1950.

INTERNATIONAL LAW A N D M U N I C I P A L LAW

123

be equal before the law without a rule to that effect, it follows that international law is superior to or more basic than municipal law.7
Reference has already been made to Kelsen's hierarchical system
whereby the legality of a particular rule is affirmed once it conforms
to an anterior rule. This process of referring back to previous or higher
rules ends with the so-called basic norm of the legal order. However, thisbasic norm is basic only in a relative sense, since the legal character ofstates, such as their jurisdiction, sovereignty and equality, is fixed by international law. Thus, Kelsen emphasises the unity ofthe entire legal order
upon the basis of the predominance of international law by declaring that
it is the basic norm of the international legal order which is the ultimate
reason of validity of the national legal orders too.8
A third approach, being somewhat a modification of the dualist position and formulated by Fitzmaurice and Rousseau amongst others, attempts to establish a recognised theoretical framework tied to reality. Thisapproach begins by denying that any common field of operation exists
as between international law and municipal law by which one system issuperior or inferior to the other. Each order is supreme in its own sphere,
much as French law and English law are in France and England. And justas one cannot talk in terms of the supremacy of French law over English
law, but only of two distinct legal systems each operating within its own
field, so it is possible to treat international law and municipal law in thesame way. They are both the legal element contained within the domestic and international systems respectively, and they exist within different
juridical orders.
What may, and often does, happen is what is termed a conflict ofobligations, that is the state within its own domestic sphere does not act
in accordance with its obligations as laid down by international law. In
such a case, the domestic position is unaffected (and is not overruled by
the contrary rule of international law) but rather the state as it operates
internationally has broken a rule of international law and the remedy willlie in the international field, whether by means of diplomatic protest or
judicial action.

' Kelsen, Principles, pp. 557-9. See also Kelsen, General Theory ofLa111andState, Cambridge,
1945, pp. 363-80. Note that Scelle, for example, founds international legal monism uponan intersocial monism, essentially a sociological explailatioi~:see Nguyen Quoc Dinh, et al.,Droit International Public, p. 96.
See further, above, chapter 2, p. 48.

124

I N T E R N A T I O N A L LAW

This method of solving the problem does not delve deeply into theoretical considerations, but aims at being practical and in accord with the
majority of state practice and international judicial decision^.^The role of municipal rules in international law"
The general rule with regard to the position of municipal law within
the international sphere is that a state which has broken a stipulation ofinternational law cannot justify itself by referring to its domestic legal
situation. It is no defence to a breach of an international obligation toargue that the state acted in such a manner because it was following the
dictates of its own municipal laws. The reasons for this inability to put
forward internal rules as an excuse to evade international responsibility
are obvious. Any other situation would permit international law to beevaded by the simple method of domestic legislation.
Accordingly, state practice and decided cases have established this provision and thereby prevented countries involved in international litigationfrom pleading municipal law as a method of circumventing internationallaw. Article 27 of the Vienna Convention on the Law of Treaties, 1969
lays down that in so far as treaties are concerned, a party may not invoke the provisions of its internal law as justification for its failure tocarry out an international agreement, while article 46(1) provides thata state may not invoke the fact that its consent to be bound by a treaty
has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent.'' This is
so unless the violation of its internal law in question was 'manifest andconcerned a rule of fundamental importance'. Article 46(2) states that
G. Fitzmaurice, 'The General Principles of International Law Considered from the Standpoint of the Rule of Law', 92 HR, 1957 11, pp. 5, 70-80. See also C. Rousseau, Dvoit
International Public, Paris, 1979, pp. 4-16; E. Borchard, 'The Relations between International Law and Municipal Law', 27 Virginia Law Review, 1940, p. 137; M. S. ~McDougal,'The Impact of International Law upon National Law: A Policy-Orientated Perspective' in
McDougal et al., Studies in World Public Order, New Haven, 1960, p. 157.
l o See e.g. C. 11: renks, The Prospects of Irlternational Adjudication, London, 1964, chapter 9;
H. Lauterpacht, TheDevelopment oflnternational Law by the International Court, London,
1958, and Morgenstern, 'Judicial Practice: pp. 43 ff.
" Note also article 13 ofthe Draft Declaration o n the Rights and Duties of States, 1949, which
provides that every state 'has the duty to carry out in good faith its obligations arisingfrom treaties and other sources of international law, and it may not invoke provisions in
its constitution or its laws as an excuse for failure to perform this duty', Yearbook of the
ILC, 1949, pp. 286, 289.

I N T E R N A T I O N A L LAW A N D M U N I C I P A L LAW

125

such a violation is manifest where it would be objectively evident to any
state conducting itself in the matter in accordance with normal practiceand in good faith. The International Court considered this provision in
Cameroon v. Nigeriu in the context of Nigeria's argument that the Maroua
Declaration of 1975 signed by the two heads of state was not valid as it had
not been ratified." It was noted that article 7 ( 2 )of the Vienna Convention provided that heads of state belonged to the group of persons who
in virtue of their functions and without having to produce full powers
are considered as representing their state. The Court also took the viewthat 'there is no general legal obligation for States to keep themselvesinformed of legislative and constitutional developments in other States
which are or may become important for the international relations ofthese states'.''Such provisions are reflected in the case-law. In the Alabama Claims
arbitration of 1872, the United States objected strenuously when Britain
allowed a Confederate ship to sail from Liverpool to prey upon American
shipping. It was held that the absence of British legislation necessary to
prevent the construction or departure of the vessel could not be brought
forward as a defence, and Britain was accordingly liable to pay damages for the depredations caused by the warship in question.14 In the
Polish Nationals in Danzig case, the Court declared that 'a State cannot
adduce as against another State its own constitution with a view to evading obligations incumbent upon it under international law or treaties inforce'.''The International Court, in the Applicability of the Obligation to Arbitmte case,I6 has underlined 'the fundamental principle of international law that international law prevails over domestic law', while Judgel2

ICJ Reports, 2002, para. 265.

'"bid., para. 266. But see the view ofthe Court in the Anglo-Norwegian Fisheries case that the
UK as a coastal state greatly interested in North Sea fishing 'could not have been ignorant'of a relevant Norwegian decree, despite claiming that Norway's delimitation system was
not known to it: ICJ Reports, 1951, p. 116; 18 ILR, pp. 86, 101.
'9.
B Moore, InternationalArbitrations, NewYork, 1898, vol. I, pp. 495,653. See also e.g. theFree Zones case, PCIJ, Series AIB, No. 46, 1932, p. 167; 6 AD, p. 362; the Greco-Bulgarian
Comrnunities case, PCIJ, Series B, No. 17, 1930, p. 32; 5 AD, p. 4, and the Nottebohm case,
ICJ Reports, 1955, pp. 4,20-1; 22 ILR, pp. 349,357-8.
l5 PCIJ, Series AIB, No. 44, pp. 21,24; 6 AD, p. 209. See also the Georges Pinson case, 5 RIAA,
p. 327; 4 AD, p. 9.
l6 ICJ Reports, 1988, pp. 12,34; 82 ILR, pp. 225,252.

126

I N T E R N A T I O N A L LAW

Shahabuddeen emphasised in the Lockerbie case1' that inability underdomestic law to act was no defence to non-compliance with an international obligation. This was reinforced in the LaGrand case,18 where the
Court noted that the effect of the US procedural default rule,19which wasto prevent counsel for the LaGrand brothers from raising the violationby the US of its obligations under the Vienna Convention on Consular
Relations before the US federal courts system, had no impact upon the
responsibility of the US for the breach of the c o n ~ e n t i o n By
. ~ ~way ofcontrast, the International Court pointed out in the Elettronica Sicula
SPA (ELSI) case2' that the fact that an act of a public authority may havebeen unlawful in municipal law did not necessarily mean that the act inquestion was unlawful in international law.
However, such expressions of the supremacy of international law overmunicipal law in international tribunals do not mean that the provisionsof domestic legislation are either irrelevant or unnecessary.22On the contrary, the role of internal legal rules is vital to the workings of the international legal machine. One of the ways that it is possible to understand anddiscover a state's legal position on a variety of topics important to international law is by examining municipal laws.23A country will express its
opinion on such vital international matters as the extent of its territorialsea, or the jurisdiction it claims or the conditions for the acquisition ofnationality through the medium of its domestic law-making. Thus, it isquite often that in the course of deciding a case before it, an international
court will feel the necessity to make a study of relevant pieces of municipal
legislation. Indeed, there have been instances, such as the Serbian Loanscase of 1 9 2 9 , ~when~ the crucial issues turned upon the interpretation of
ICJ Reports, 1992, pp. 3, 32; 94 ILR, pp. 478, 515. See also \Vestland Helicopters Ltd and
AOI, 80 ILR, pp. 595,616.
l S ICJ Reports, 2001, paras. 90-1.
This US federal rule of criminal law essentially prevents a claim from being heard before,para.
a federal court if it has not been presented to a state court: see IC1 ~ e p o r t s2001,23.
See also the Advisory Opinion of the Inter-American Court of Human Rights on the
Promulgation and Enforcement of Latv in Violation of the Convention, 116 ILR, pp. 320,
332-3.
ICI Reports, 1989, pp. 15,73-4; 84 ILR, pp. 311,379-80.
77-See e.g. Jenks, Prospects, pp. 547-603, and K. Marek, Droit International et Droit Interne,
Paris, 1961. See also Brownlie, Principles, pp. 39-43.
See e.g. the Anglo-Iranian Oil Co. case, IC1 Reports, 1952, p. 93; 19 ILR, p. 507.
'"CIJ,
Series A, No. 20; 5 AD, p. 466. See also the Brazilian Loans case, PCI1, Series A,
No. 21.
l7''''

INTERNATIONAL LAW A N D M U N I C I P A L LAW

127

internal law, and the rules of international law in a strict sense were not at
issue. Further, a court may turn to municipal law concepts where this isnecessary in the circumstance^.^^ However, it is clear that caution is necessary where an international court or tribunal is considering concepts ofnational law in the absence of an express or implied requirement so to do
and no automatic transposition should occur.26
In addition to the role of municipal law in revealing the legal position of
the state on topics of international importance, the rules of municipal law
can be utilised as evidence of compliance or non-compliance with international obligations. This was emphasised in the Certain German Interests
i n Polish Upper Silesia case, where the Permanent Court of International
Justice declared that:
From the standpoint of International Law and of the Court, which is its organ, ~nunicipallaws are merely facts which express the will and constitutethe activities of States, in the same manner as d o legal decisions or administrative measures. The Court is certainly not called upon to interpretthe Polish law as such; but there is nothing to prevent the Court's giving
judgment o n the question whether or not, in applying that law, Poland
is acting in conformity with its obligations towards Germany under the
Geneva C ~ n v e n t i o n . ~ 'Nevertheless, and despite the many functions that municipal law rules
perform within the sphere of international law, the point must be emphasised that the presence or absence of a particular provision within
the internal legal structure of a state, including its constitution if there
is one, cannot be applied to evade an international obligation. Anyother solution would render the operations of international law rather
precarious.

See e.g. the Barcelona Traction case concerning the nature of a limited liability company,
ICJ Reports, 1970, p. 3; 46 ILR, p. 178.
26 See e.g. the Exchange of Greek and Turkish Poptrlations case, PCIJ, Series B, No. 10, pp. 1921; 3 AD, p. 378. See also the Separate Opinion of rudge McNair in the South West Africa
case, ICJ Reports, 1950, p. 148; 17 ILR, p. 47, noting that private law institutions could not
law 'lock, stock and barrel'; the Separate Opinion of Judgebe imported into inter~latio~lalFitzmaurice in the Barcelona Traction case, ICJ Reports, 1970, pp. 3,66-7; 46 ILR, pp. 178,
Opinion of President Cassese in the Erdernovit
240-1, and the Separate and Disse~lti~lg
case, 111 ILR, pp. 298, 387 ff.
PCIJ,Series A, No. 7, p. 19; 3 AD, p. 5. See also the Saiga (No.2) case before the International
Tribunal for the Law of the Sea, 120 ILR, pp. 143, 188. For criticism, see e.g. Brownlie,
Principles, pp. 39-41.
'5

''

128

I N T E R N A T I O N A L LAW

International law before municipal courts28
The problem of the role of international law within the municipal law
system is, however, rather more complicated than the position discussed
above, and there have been a number of different approaches to it. Statesare, of course, under a general obligation to act in conformity with therules of international law and will bear responsibility for breaches ofit, whether committed by the legislative, executive or judicial organs.lY
Further, international treaties may impose requirements of domestic legislation upon states parties3'
In this section, the approach adopted by municipal courts will be noted.
We shall look first at the attitudes adopted by the British courts, and thenproceed to note the views taken by the United States and other c ~ u n t r i e s . ~ 'The United ~ i n ~ d o r n ~ ~It is part of the public policy of the UK that the courts should in principle give effect to clearly established rules of international law.33Various
theories have been put forward to explain the applicability of interna-'' See e.g. Morgenstern, 'Judicial Practice: pp. 48-66, and Conforti, International Law Seealso H . Mosler, 'L'Application du Droit International Public par les Tribunaux Nationaux',
91 HR, 1957 I, p. 619; W. Wenger, 'Rkflexions sur I'Application du Droit International
Public par les Tribunaux Internes: 72 Revue Gintrale de Droit blternational Public, 1968,
e s Foreign Affairs: A Comment on the Institut de Droit
p. 921; E. Benveniste, ' J ~ ~ d gandInternational's Resolution on "The Activities of National Courts and the International
Relations of their State" ', 5 EJIL, 1994, p. 423.
'9 See e.g. the Exchalige of Greek and Turkish Populations case, PCIJ, Series B, No. 10, p. 20,
and the Finnish Ships Arbitration, 3 RIAA, p. 1484. See further below, chapter 14.
'O See e.g. as to requirements imposed by anti-terrorist conventions, below, chapter 12, p.
600. See also the decision of Trial Chamber I1 in the Fururldiija case, 121 ILR, pp. 218,
248-9.
Note the view expressed in Oppenheirn's Interilational Law, p. 54, that 'states show considerable flexibility in the procedures wllereby they give effect within their territories tothe rules of international law.. .while the procedures vary, the result that effect is given
within states to the requirements of international law is by and large achieved by all states'.
See e.g. Morgenstern, 'Tudicial Practice'; H. Lauterpacht, 'Is International Law a Part of
the Law of England?: 25 Transactions of the Grotius Society, 1939, p. 51; J. E. S. Fawcett,
The British Comrr~onwealthin International Law, London, 1963, chapter 2; Oppenheim'sInternational Law, pp. 39-41, and TI7. Holdsworth, Essays irz Law and History, Oxford,
1946, p. 260. See also 1. Collier, 'Is International Law Really Part of the Law of England?:38 ICLQ, 1989, p. 924; Higgins, Problerr~sand Process, chapter 12; R. O'Keefe, 'Customary
International Crimes in English Courts: 72 BYIL, 2001, p. 293, and D. Feldman, 'Monism,
YIL, 1999, p. 105.
Dualism and Constitutional Legitimacy', 20 A~~stralian
3 3 See e.g. Upjohn J in In re Claim by Herbert I\iragg e4 Co. Ltd [1956] Ch 323,334, and Lord
Cross in Oppenheim v. Cattermole [1976] AC 249, 277.

"''

INTERNATIONAL LAW A N D M U N I C I P A L LAW

129

tional law rules within the jurisdiction. One expression of the positivistdualist position has been the doctrine of transformation. This is based
upon the perception of two quite distinct systems of law, operating separately, and maintains that before any rule or principle of internationallaw can have any effect within the domestic jurisdiction, it must be expressly and specifically 'transformed' into municipal law by the use of theappropriate constitutional machinery, such as an Act of Parliament. This
doctrine grew from the procedure whereby international agreements are
rendered operative in municipal law by the device of ratification by thesovereign and the idea has developed from this that any rule of international law must be transformed, or specifically adopted, to be valid within
the internal legal order.
Another approach, known as the doctrine of incorporation, holds thatinternational law is part of the municipal law automatically without thenecessity for the interposition of a constitutional ratification procedure.
The best-known exponent of this theory is the eighteenth-century lawyer
Blackstone, who declared in his Commentaries that:the law ofnations, wherever any question arises which is properly the objectof its jurisdiction, is here adopted in its full extent by the common law, and
it is held to be a part of the law of the land.34

This doctrine refers to customary international law and different rules
apply to treaties.
Customary international law
It is in this sphere that the doctrine of incorporation has become themain British approach. It is an old-established theory dating back to theeighteenth century, owing its prominence at that stage to the considerable discussion then taking place as to the precise extent of diplomatic
immunity. In the case of Buvot v. ~ a r b u i t~, ~o ~r Talbotddeclared unambiguously that 'the law of nations in its full extent was part of the lawof England', so that a Prussian commercial agent could not be renderedliable for failing to perform a decree. This was followed twenty-sevenyears later by Triquet v.
where Lord Mansfield, discussing the issue as to whether a domestic servant of the Bavarian Minister to Britain
34'6

Cornrnentarie.c,I\', chapter 5.
(1764) 3 Burr. 1478.

(1737) Cases t. Talbot 281.

I30

I N T E R N A T I O N A L LAW

could claim diplomatic immunity, upheld the earlier case and specificallyreferred to Talbot's statement.
This acceptance of customary international law rules as part and parcel of the common law of England, so vigorously stated in a series ofeighteenth-century cases, was subject to the priority granted to Acts of
Parliament and tempered by the principle of sture decisis or precedent,
maintained by the British courts and ensuring that the judgments of thehigher courts are binding upon the lower courts of the hierarchical system. Accordingly, a rule of international law would not be implemented
if it ran counter to a statute or decision by a higher court.37
In the nineteenth century, a series of cases occurred which led many
writers to dispute the validity of the hitherto accepted incorporation doctrine and replace it with the theory of transformation, according to which
the rules of customary international law only form part of English law
if they have been specifically adopted, either by legislation or case-law.
The turning point in this saga is marked by the case of R v. ~e which~concerned a German ship, the Fruncoizia, which collided with and sanka British vessel in the English Channel within three miles of the English
coast. The German captain was indicted for manslaughter following thedeath of a passenger from the British ship, and the question that came
before the Court for Crown Cases Reserved was whether an English court
did indeed have jurisdiction to try the offence in such circumstances.
The Court came to the conclusion that no British legislation existed
which provided for jurisdiction over the three-mile territorial sea aroundthe coasts. It was true that such a rule might be said to exist in internationallaw, but it was one thing to say that the state had the right to legislate overa part of what had previously been the high seas, and quite another toconclude that the state's laws operate at once there, independently of any
legislation. One thing did not follow from another, and it was imperative
to keep distinct on the one hand the power of Parliament to make laws, andon the other the authority of the courts, without appropriate legislation,
to apply the criminal law where it could not have been applied before. The
question, as Lord Cockburn emphasised, was whether, acting judicially,
the Court could treat the power of Parliament to legislate as making up
for the absence of actual legislation. The answer came in the negative and
the German captain was released.
" But see now Trendtex Trading Corporation v. Central Bank of Nigeria [I9771 2 W L R 356;

64 ILR, p. 111; below, p. 133.

'' (1876) 2 Ex.D. 63.

n~INTERNATIONAL LAW A N D M U N I C I P A L LAW

I3I

This case was seen by some as marking a change to a transformation
approach,39but the judgment was in many respects ambiguous, dealing
primarily with the existence or not of any right of jurisdiction over the
territorial sea4' It must also be pointed out that in many respects thedifferences between the incorporation and transformation theories as interpreted in modern times lie more in a shift in presumption than any
comprehensive theoretical r e v ~ l u t i o n .In~ ' any event, any doubts as to theoutcome of any further Franconia situations were put to rest by the Territorial Waters Jurisdiction Act 1878, which expressed British jurisdiction
rights in similar circumstances.
The opinions put forward in the West Rand Gold Mining Co. case42
showed a further blurring of the distinction between the incorporationand transformation theories. Lord Alverstone declared that whatever hadreceived the common consent of civilised nations must also have received
the assent of Great Britain and as such would be applied by the municipal
tribunals. However, he went on to modify the impact of this by notingthat any proposed rule of international law would have to be proved bysatisfactory evidence to have been 'recognised and acted upon by our own
country' or else be of such a nature that it could hardly be supposed any
civilised state would repudiate it. Lord Mansfield's view in Triquet's casecould not be so interpreted as to include within the common law rules ofinternational law which appear in the opinions of textbook writers and as
to which there is no evidence that Britain ever assented.43This emphasis on
assent, it must be noted, bears a close resemblance to the views put forward
by the Court in R v. Keyn as to the necessity for conclusive evidence
regarding the existence and scope of any particular rule of customary law.
Indeed, the problem is often one of the uncertainty of existence and scopeof customary law.
Not long after the West Rand case, another important dispute came
before the courts. In Mortensen v. Peters,44 a Danish captain was convicted by a Scottish court for contravening a fishing by-law regarding theMoray Firth. His ship had been operating within the Moray Firth andwas within the area covered by the relevant by-law, but it was beyond
the three-mile limit recognised by international law. The issue came to
the Scottish Court of Justiciary, where Lord Dunedin, in discussing the'' See e.g. Holdsworth, Esays, pp. 263-6, andll'. Halsbury, Law, ofEngland, 3rdedn, London,
1968, rol. VII, p. 264.
40 See e.g. Lauterpacht, 'Is International Law a Part', pp. 60-1.

" See e.g. Brownlie, Pr~nc~ples,p. 47.
44(1906) 8 F.(J.) 93.

" [I9051 2 KB 391.

"3

Ib~d.,pp. 407-8.

132

I N T E R N A T I O N A L LAW

captain's appeal, concentrated upon the correct construction to be madeof the relevant legislation. He noted that an Act of Parliament duly passed
and assented to was supreme and the Court had no option but to giveeffect to its provisions. In other words, statutes had predominance overcustomary law, and a British court would have to heed the terms of an
Act of Parliament even if it involved the breach of a rule of internationallaw. This is so even though there is a presumption in British law that thelegislation is to be so construed as to avoid a conflict with internationallaw. Where such a conflict does occur, the statute has priority and thestate itself will have to deal with the problem of the breach of a customaryrule.45
This modified incorporation doctrine was clearly defined by Lord Atkinin Chung Chi Cheung v.
He noted that:international law has no validity except in so far as its principles are accepted and adopted by our own domestic law.. .The courts acknowledge
the existence of a body of rules which nations accept among themselves.
O n any judicial issue they seek to ascertain what the relevant rule is, andhaving found it they will treat it as incorporated into the domestic law, so
far as it is not inconsistent with rules enacted by statutes or finally declaredby their tribunals.

It goes without saying, of course, that any alleged rule of customary
law must be proved to be a valid rule of international law, and not merely
an unsupported proposition.
One effect of the doctrines as enunciated by the courts in practice isthat international law is not treated as a foreign law but in an evidential
manner as part of the law of the land. This means that whereas any ruleof foreign law has to be proved as a fact by evidence, as occurs with otherfacts, the courts take judicial notice of any rule of international law andmay refer, for example, to textbooks rather than require the presence andtestimony of expert opinion.47
In ascertaining the existence and nature of any particular rule, thecourts may have recourse to a wider range of authoritative material
than would normally be the case, such as 'international treaties and'' See also 170 HC Deb., col. 472, 4 March 1907 and the Trawling in Prohibited Areas
Prevention Act 1909.
[I9391 AC 160; 9 AD, p. 264. See also Commercial andExtates Co. ofEgypt 11.Board ofTrade[I9251 1 KB 271,295; 2 AD, p. 423.
47 Lord Advocate's Reference No. 1 of 2000,2001, SLT 507, 512-13.
46

INTERNATIONAL LAW A N D M U N I C I P A L LAW

I33

conventions, authoritative textbooks, practice and judicial decisions' of
the courts of other countries.48
The case of Trendtex Trading Corporation v. Central Bank of Nigeria
raised anew many of these issues. The case concerned a claim for sovereign
or state immunity by the Central Bank of ~ i g e r i a . In
~ ' Trendtex all three
judges of the Court of Appeal accepted the incorporation doctrine as
the correct one. Lord Denning, reversing his opinion in an earlier case,50
stressed that otherwise the courts could not recognise changes in thenorms of international law.5' Stephenson LJ emphasised in an importantstatement that:
it is the nature of international law and the specific problems of ascertaining it which create the difficulty in the way of adopting o r incorporating o r recognising ds already incorporated a new rule of international
law.''The issue of stare decisis, or precedent, and customary international law
was also discussed in this case. It had previously been accepted that thedoctrine of stare decisis would apply in cases involving customary international law principles as in all other cases before the courts, irrespective of
any changes in the meantime in such law.j3 This approach was reaffirmed
in Thai-Europe Tapioca Service Ltd v. Government ofpakistan.j4 However,in Trendtex, Lord Denning and Shaw LJ emphasised that international law
did not know a rule of stare d e ~ i s i sWhere. ~ ~ international law had changed,
the court could implement that change 'without waiting for the House ofLords to do it'.j6 The true principle, noted Shaw LJ, was that 'the English
courts must at any given time discover what the prevailing international
Per Lord MacMillan, The Crirtina [I9381 AC 485, 497; 9 AD, p. 250. See Re Piracy Jtlre
Gentiufn [1934] AC 586,588; 7 AD, p. 213, and Stephenson LJ, Trendtex Trading Corporation v. Central Bank ofNigeria [I9771 2 WLR 356, 379; 64 ILR, pp. 111, 135. But see also
Lauterpacht, 'Is International Law a Part', p. 87, note m.
49 [I9771 2 WLR 356; 64 ILR, p. 111. See further below, chapter 13.
R v. Secretary of State for the Horne Department, exparte Thakrar [I9741 2 WLR 593,597;
59 ILR, p. 450.
" [1977] 2 WLR 356,365; 64 ILR, pp. 111, 128. See also Shaw LJ, ibid., 386 and Stephenson
Lr, ibid., 378-81.
[1977] 2 WLR 356,379.
See e.g. Brownlie, Principles, pp. 45-6, and Churlg Chi Chcung V . R [1939] AC 160, 169; 9AD, p. 214. But see Morgenstern, 'Judicial Practice: pp. 80-2.
'4 [1975] 3 All ER 961,967,969-70; 64 ILR, p. 81.
j5 [I9771 2 WLR 356,365; 64 ILR, pp. 111, 128.
' 6 Per Lord Den~ling,[1977] 2 WLR 356, 366.

''

"

I34

I N T E R N A T I O N A L LAW

rule is and apply that rule'.j7 This marked a significant approach and onethat in the future may have some interesting consequences, for example,
in the human rights field.
The dominant incorporationist approach was clearly reaffirmed by the
Court of Appeal in Maclaine Watson v. Department of Trade and Industry.'' This case concerned the consequences of the demise of the International Tin Council and the attempts inter alia to render states that weremembers of the ITC liable for the debts incurred by that unfortunate
organisation. Nourse LJ emphasised that the Trendtex case had resolved
the rivalry between the incorporation and transformation doctrines infavour of the former.j9 One of the major points at issue in the Tin Courzcil litigation was whether a rule existed in international law stipulatingthat the states members of an international organisation with separate
personality could be rendered liable for the latter's debts.
If such a rule did exist, the question would then arise as to how thatwould be accepted or manifested in the context of municipal law. This, ofcourse, would depend upon the precise content of such a claimed international rule and, as Kerr LJ noted, no such rule did exist in international law
permitting action against member states 'in any national court'.60 It wasalso not possible for an English court to remedy the gap in internationallaw by itself creating such a rule.61 Nourse LJ, however, took a different
position on this point, stating that 'where it is necessary for an English
court to decide such a question [i.e. an uncertain question ofinternationallaw], and whatever the doubts and difficulties, it can and must do so',62This, with respect, is not and cannot be the case, not least because it strikes
at the heart of the community-based system of international law creation.
Lord Oliver in the House of Lords judgment63 clearly and correctly
emphasised that
It is certainly not for a domestic tribunal in effect to legislate a rule into
existence for the purposes of domestic law and on the basis of material thatis wl~ollyindetermil~ate.~''Such approaches find support in the Pinochet decisions. Lord Lloyd,
for example, in Ex Parte Pinochet (No. 1 ) referred to the 'well-established" Ibid., 388; 64 ILR, p. 152. But cf. Stephenson LJ, ibid., 381. See also e.g. Goff J, I" Coizgresodel Partido 119771 3 WLR 778,795; 64 ILR, p. 154. This approach was supported by Lord
Slyiln in Ex Parte Pirlocllet (No. 1 ) [2000] 1 AC 61, 77; 119 ILR, pp. 50, 65.
js 119881 3 WLR 1033; 80 ILR, p. 49.
j9 [1988] 3 WLR 1116; 80 ILR, p. 132.
Ibid.
60 [I9881 3 WLR 1095; 80 ILR, p. 109.
" 119881 3 WLR 1118; 80 ILR, p. 135.
h3 [I9891 3 All ER 523; 81 ILR, p. 671.
64 [I9891 3 All ER 554; 81 ILR, p. 715.

INTERNATIONAL LAW A N D M U N I C I P A L LAW

I35

principles of customary international law, which principles form part
, ~ ~ Lord Slynn took the view thatof the common law of ~ n g l a n d ' while
the doctrine of precedent did not apply to the incorporation of rules ofcustomary international law.@Lord Millett in Ex Purte Pinochet ( N o . 3 )stressed that 'Customary international law is part of the common law."j7
In Lord Advocate's Reference No. 1 of 2000, the High Court of Justiciarystated that 'A rule of customary international law is a rule of Scots law',h"and the point was emphasised by the Arbitration Tribunal in Sandline v.
Papua N e w Guinea that 'it is part of the public policy of England thatits courts should give effect to clearly established rules of international

As far as treaties are concerned, different rules apply as to their application
within the domestic jurisdiction for very good historical and politicalreasons. While customary law develops through the evolution of statepractice, international conventions are in the form of contracts binding
upon the signatories. For a custom to emerge it is usual, though notalways necessary, for several states to act in a certain manner believing
it to be in conformity with the law. Therefore, in normal circumstances
the influence of one particular state is not usually decisive. In the caseof treaties, the states involved may create new law that would be binding
upon them irrespective of previous practice or contemporary practice. In
other words, the influence of the executive is generally of greater impact
where treaty law is concerned than is the case with customary law.
It follows from this that were treaties to be rendered applicable directly within the state without any intermediate stage after signature and6"2000] 1 AC 61, 98 and see also at 90; 119 ILR, pp, 50, 87.
66 See Ex Parte Pinochet (1Vo. 1 ) [2000] 1 AC 61, 77; 119 ILR, pp. 50, 65.
67 [2000] 1 AC 147, 276; 119 ILR, pp. 135,230.
68 2001 SLT 507, 512. See also S. Neff, 'International Law and Nuclear LC'eapons in Scottish
Courts', 51 ICLQ, 2002, p. 171.
69 117 ILR, pp. 552,560.
O' See generally A. D. McNair, The Law of Treaties, Oxford, 1961, pp. 81-97; F. A. Mann,'The Enforcement of Treaties by English Courts', 44 Trailsactions of the Grotills Society,1958-9, p. 29; R. Higgins in The Effect of Treaties iiz Doinestic Law (eds. F. Jacobs and
S. Roberts), London, 1987, p. 123; D. Lasok, 'Les Traites Internationaux dans la Systeme
de Droit International Pzlblic, 1966, p. 961; I. Sinclair,
Juridique Anglaise', 70 Revue Gt.i~&rale'The Principles of Treaty Interpretation and their Application by the English Courts', 12
ICLQ, 1963, p. 508; I. Sinclair and S. J. Dickson, 'National Treaty Law and Practice: United
Kingdom' in ~VatioilalTreaty Law and Practice (eds. M . Leigh and M . R. Blakeslee), 1995,
p. 223, and C. Warbrick, 'Treaties', 49 ICLQ, 2000, p. 944.

I36

I N T E R N A T I O N A L LAW

ratification and before domestic operation, the executive would be able tolegislate without the legislature. Because of this, any incorporation theory approach to treaty law has been rejected. Indeed, as far as this topic
is concerned, it seems to turn more upon the particular relationship between the executive and legislative branches of government than upon
any preconceived notions of international law.
One of the principal cases in English law illustrating this situation isthe case of the ~arlernent~ e l ~ eIt. involved~'
a collision between this ship
and a British tug, and the claim for damages brought by the latter vessel
before the Probate, Divorce and Admiralty division of the High Court.
The Parleme~ztBelge belonged to the King of the Belgians and was used asa cargo boat. During the case, the Attorney General intervened to statethat the Court had no jurisdiction over the vessel as it was the propertyof the Belgian monarch, and that further, by a political agreement of
1876 between Britain and Belgium, the same immunity from foreign legal
process as applied to warships should apply also to this packet boat. In
discussing the case, the Court concluded that only public ships ofwar wereentitled to such immunity and that such immunity could not be extended
to other categories by a treaty without parliamentary consent. Indeed, it
was stated that this would be 'a use of the treaty-making prerogative of
the Crown.. .without precedent, and in principle contrary to the law of
the con~titution'.~'
It is the Crown which in the UK possesses the constitutional authority
to enter into treaties and this prerogative power cannot be impugned bythe
However, this power may be affected by legislation. Section 6of the European Parliamentary Elections Act 1978 provided, for example,
that no treaty providing for any increase in the powers of the European
Parliament would be ratified by the UK without being first approved by~ a r l i a m e n tThus. ~ ~ it is that treaties cannot operate of themselves within
the state, but require the passing of an enabling statute. The Crown in
Britain retains the right to sign and ratify international agreements, but
is unable to legislate directly. Before a treaty can become part of English
law, an Act of Parliament is essential. This fundamental proposition was" (1879) 4 PD 129.

'' Ibid.,p. 154.

" See e.g. Council of Civil Service Urlions 1'. Ministerfor the Civil Service [I9851 AC 374,418.

See also Rustomjee v. R (1876) 2 QBD 69 and Lonrho Exports v. ECGD [I9961 4 All ER
673; 108 ILR, pp. 596,611.
"'ee
R v. Secretary ofstate for Foreign and Commonwealth Affairs, exparte Rees-Mogg [ 19941
2 WLR 115.

INTERNATIONAL LAW A N D M U N I C I P A L LAW

I37

clearly spelt out by Lord Oliver in the House of Lords decision in Maclaine
Watson v. Department of Trade and ~ n d u s t r yHe. ~ ~noted that:as a matter of the constitutional law of the United Kingdom, the royalprerogative, whilst it embraces the making of treaties, does n o t extend t oaltering the law o r conferring rights o n individuals or depriving individualsof rights which they enjoy in domestic law without the intervention of
Parliament. Treaties, as it is sometimes expressed, are n o t self-executing.
Quite simply, a treaty is n o t part of English law unless a n d until it has been
incorporated into the law by l e g i s l a t i ~ n . ~ ~It therefore followed that as far as individuals were concerned such treaties
were res inter alia acta from which they could derive rights and by which
they could not be deprived of rights or subjected to ~ b l i ~ a t i o n sLord.~'
Templeman emphasised that 'Except to the extent that a treaty becomesincorporated into the laws of the United Kingdom by statute, the courtsof the United Kingdom have no power to enforce treaty rights and obligations at the behest of a sovereign government or at the behest of a private
i n d i ~ i d u a l . The' ~ ~ interpretation of treaties not incorporated by statuteinto municipal law, and the decision as to whether they have been complied with, are matters exclusively for the Crown as 'the court must speakwith the same voice as the ~xecutive'.~'An exception is where reference toa treaty is needed in order to explain the relevant factual b a c k g r o ~ n d , ~ ~for example where the terms of a treaty are incorporated into a c ~ n t r a c t . ~ 'Where the legislation in question refers expressly to a relevant but unincorporated treaty, it is permissible to utilise the latter in order to constrain[I9891 3 All ER 523,531; 81 ILR, pp. 671,684. See also Lonrho Exports v. ECGD [I9961 4
All ER 673,687; 108 ILR, pp. 596,611.
[1989] 3 All ER 523,544-5; 81 ILR, p. 701. See also Littrell v. LTSA(No. 2 ) [1995] 1 WLR
82. But see R. Y.Jennings, 'An International Lawyer Takes Stock: 39 ICLQ, 1990, pp. 513,
523-6.
77 [I9891 3 All ER 523,544-5; 81 ILR, p. 701.
[I9891 3 All ER 523,526; 81 ILR, p. 676. See also Ex Parte Brind [1991] 1 AC 696, 747-8;
85 ILR, 17. 29.
7y Lonrko Exports V. ECGD [1996] 4 All ER 673, 688; 108 ILR, pp. 596, 613. See also GUR
Corporation v. Trtist Bartk ofAfrica Ltd [1986] 3 All ER 449, 454,459 and 466-7; 75 ILR,
v. Barclays Bank [1998] 2 All ER 821, 828;
p. 675, and Sierra Leone Teleco~~lmti~zicatiorls
114 ILR, 17. 466.
" Lord Oliver in ,Maclaine Watson v, Department of Trade and Irldustry emphasised that theconclusion of an international treaty is a question of fact, thus a treaty may be referred toas part of the factual background against which a particular issue arises, [I9891 3 All ER
523, 545; 81 ILR, pp. 671, 702. See further below, pp. 162 ff.
" Lonrho Exports v. ECGD [1YY6] 4 All ER 673,688; 108 ILR, pp. 596,613.

5'

''

I38

I N T E R N A T I O N A L LAW

any discretion provided for in the former.82Further, it has been argued
that ratification of an international treaty (where no incorporation has
taken place) may give rise to legitimate expectations that the executive, in
the absence of statutory or executive indications to the contrary, will act
in conformity with the treaty.s3
However, treaties relating to the conduct of war, cession of territory
and the imposition of charges on the public purses4 do not need an intervening act of legislation before they can be made binding upon the
citizens of the c o ~ n t r y . ~A"similar situation exists also with regard to
relatively unimportant administrative agreements which do not require
ratification, providing of course they do not purport to alter municipal
law. In certain cases, Parliament will give its approval generically in advance for the conclusion of treaties in certain fields within specified limits,
subject to the terms negotiated for particular treaties being promulgatedby statutory instrument (secondary l e g i ~ l a t i o n )Such. ~ ~ exceptions occur
because it is felt that, having in mind the historical compromises uponwhich the British constitutional structure is founded, no significant legislative powers are being lost by Parliament. In all other cases where therights and duties of British subjects are affected, an Act of Parliamentis necessary to render the provisions of the particular treaty operative
within Britain. In conclusion, it may be stated that parliamentary legislation will be required where a treaty for its application in the UK requiresa modification of, or addition to, existing common law or statute, affects
private rights, creates financial obligations for the UK, provides for an" See e.g. R v. Secretary of State, O n the Applicatioi~of the Ch~zilnelTunnel Grozlp 119 ILR,

pp. 398,407-8.
" See Lord Woolf M R in Ex Parte Alimed and Pate1 119981 INLR 570, 584, relying upon theapproach of the High Court of Australia in Minister of Imil~igrationv. Teoh, as to which
see below, p. 152. Hobhouse L1 in Ex Parte Ahmed and Patelnoted that where the Secretaryof State had adopted a specific policy, it was not possible to derive a legitimate expectationfrom the treaty going beyond the scope of the policy: at 592.
84 See the evidence presented by the Foreign and Common~realth
Office to the Royal Commission on the Reform of the House of Lords, UKMIL, 70 BYIL, 1999, p. 405.
" See e.g. Brownlie, Principles, 17.47;S. de Smith and R. Brazier, Constitutional and Adrninistrative Law, 6th edn, London, 1989, pp. 140-2, and W. Wade and 0. H. Phillips, Constittrtiorlalarid Admiriistrative Law, 9th edn, London, 1977, pp. 303-6. See also Attorney-General
for Canada v. Attorney-General for Ontario [I9371 AC 326, 347; 8 AD, p. 41; Walker v.
Baird [I8921 AC 491; Republic of Italy v. Hambro's Bank [I9501 1 All ER 430; Cheriey v.
Conri [1968] 1 WLR 242; 41 ILR, p. 421; Porter v. Freudcnberg [1915] 1 KB 857,874-80,
and McNair, Law of Treaties, pp. 89-91.
86 See the evidence presented by the Foreign and Commonwealth Office to the Royal Commission on the Reform of the House of Lords, UKMIL, 70 BYIL, 1999, p. 405, citing theexamples of extradition and double-taxation treaties.

INTERNATIONAL LAW A N D M U N I C I P A L LAW

I39

increase in the powers of the European Parliament, involves the cession of
British territory or increases the powers of the ~ r o w n . It
~ 'is the practicein the UK to lay before both Houses of Parliament all treaties which the
UK has either signed or to which it intends to accede.88The text of any
agreement requiring ratification, acceptance, approval or accession has
to be laid before Parliament at least twenty-one sitting days before any ofthese actions is taken.89This is termed the 'Ponsonby ~ u l e ' . ~All' treaties
signed after 1 January 1997 and laid before Parliament under this rule areaccompanied by an Explanatory ~ e m o r a n d u m . ~ 'There is in English law a presumption that legislation is to be so construed as to avoid a conflict with international law.92This operates particularly where the Act of Parliament which is intended to bring the treaty
into effect is itself ambiguous. Accordingly, where the provisions of astatute implementing a treaty are capable of more than one meaning, and87 Siilclair and Dickson, 'National Treaty Law', p. 230.

" It is also the practice to put before Parliament Orders in Council made under the United
Nations Act 1946 in order, for example, to implement United Nations sanctions internally:see s. l ( 4 ) of the Act and H. Fox and C. Wickremasinghe, 'UK Implementation of UN
Economic Sanctions', 42 ICLQ, 1993, pp. 945,959. See also R v. HM Peasz~ryand the Bankof Ellgland, exparte Centro-Coin, Times Law Report, 7 October 1993.
"' Since
1998, it has been the FCO's practice to apply the Pollsonby Rule also to treaties subject
simply to the mutual notification of the completion of constitutional or other internal
procedures by each party: see the evidence presented by the Foreign and Coininon~uealth
Office to the Royal Commission on the Reform of the House of Lords, UKMIL, 70 BYIL,
1999, p. 408.
90 See 171 HC Deb., col. 2001, 1 April 1924. This is regarded not as a binding rule but asa constitutional usage: see MTadeand Phillips, Coiixtitzltional and Administrative Law, p.
304. See also the Foreign and Common~uealthOffice Nationality, Treaty and Claims Department's handbook entitled International Agreements: Practice arid Procedure - GuidanceNotes, 1992, quoted in UKMIL, 63 BYIL, 1992, p. 705, and Erskine May's Treatise oil theLaw, Privilegex, Proceedings and L'rages of Parliament (eds. D. Limon and TIT. R. McKay),
22nd edn, London, 1997. If primary or secondary legislation is required in order to ensure compliance with obligations arising under a treaty, the Government will not ratify atreaty until such legislation has been implemented: see Parliamentary Under-Secretary ofState, 220 HC Deb., MIA, cols. 483-4, 9 March 1993, quoted in UKMIL, 64 BYIL, 1993,
p. 629.
" UKhlIL, 70 BYIL, 1999, p. 406. See also the Second Report of the House of Commons
Select Committee on Procedure - Parliamentary Scrutiny of Treaties, 2000, HC 210(http://wruru.parliament.the-stationery-rocedl
210121003.htm).See also the Government Response, HC 990 (http://wwcv.parliament.thestationery-office.co.~1k/pa/cm199900icmselect/cmproced/210/
21003.htm).
92 See e.g. Garland v. British Rail Engineering Ltd 119831 2 AC 751; 93 ILR, p. 622. See also
Ex Parte Brind [1991] 1 AC 696, 748; 85 ILR, p. 29, where this presumption is referred toas 'a mere canon of construction which involves no importation of international law into
the domestic field'.

140

I N T E R N A T I O N A L LAW

one interpretation is compatible with the terms of the treaty while others
are not, it is the former approach that will be adopted. For, as Lord Diplockpointed out: 'Parliament does not intend to act in breach of internationallaw, including therein specific treaty obligation^.'^^
However, where the words of a statute are unambiguous the courts haveno choice but to apply them irrespective of any conflict with international
agreement^.^^ Of course, any breach of an international obligation will
import the responsibility of the UK at the international level irrespective of domestic c o n s i d e r a t i ~ n s . ~ ~ ~ t t ehavem p t sbeen made in the past to
consider treaties in the context of domestic legislation not directly enacting them, or as indications of public policy, particularly with regard tohuman rights treaties,96and it seems that account may be taken of themin seeking to interpret ambiguous provisions." However, ministers areunder no obligation to do this in reaching decision^.^"" Salonion v. Commissioners of Custo171sand Excise 119671 2 QB 116, 143; Post Office v.
Estuary Radio Ltd [I9681 2 QB 740 and Brown v. Whimster [I9761 QB 297. See also
National Sfliokeless Fnels Ltd v. IRC, The Times, 23 April 1986, p. 36, and Lord Oliver in
Maclaine Watsoi~v. Department of Trade and Industry 119891 3 All ER 523, 545; 81 ILR,
pp. 671, 702.
" Ellerrnail Lines v. Murray [1931] AC 126 and IRC v. Collco Dealings Ltd [I9621 AC 1.

See Sinclair, 'Principles of Treaty Interpretation', and C. Schreuer, 'The Interpretation ofTreaties by Domestic Courts: 45 BYIL, 1971, p. 255, See also F. A. Mann, Foreign Affaiu in
English Conrts, Oxford, 1986, pp. 97-114, and R. Gardiner, 'Treaty Interpretation in the
English Courts since Fothergill u. iMorlarch Airlines (1980): 44 ICLQ, 1995, p. 620.
95 See above, p. 124.
9h See e.g. Blath~vaytu. Baron Caivley, [I9761 AC 397.
9' See e.g. in the context of the European Convention o n Human Rights prior to its incorporation by the Human Rights Act 1998, R v. Secretary of State for the Home Department,
exparte Bhajan Sing11 [I9751 2 All ER 1081; 61 ILR, p. 260; R v. Ckieflmnligration Officer,
Heathrow Airport, exparte Salarnat Bibi [I9761 3 All ER 843; 61 ILR, p. 267; R v. Secretaryof State for the Home Department, exparte Phansopkav [I9761 QB 606; 61 ILR, p. 390;
M.'addingon v. Miah [1974] 1 WLR 683; 57 ILR, p. 175; Cassell v. Broorne [1972] AC
1027; Malone v. MPC [I9791 Ch. 344; 74 ILR, p. 304; R v. Secretary of State for the Home
Departinerit, exparte Anderson [I9841 1 All ER 920; Tratvnik v. Ministry ofDefence 119841
2 All ER 791 and Ex Parte Launder [I9971 1 M7LR 839. In R v. Secretary of State for theHome Department, exparteBrind [I9911 1 AC 696, it was held that subordinate legislationand executive discretion did not fall into this category. See also Derbyshire Cotrnty Council
v. Times Netvspapers Ltd [I9931 AC 534 HL; Rarltzen v. Mirror Group Newspapers (1986)
Ltd [I9931 3 TITLR953 CA; Attorney-General v. Associated Newspapers Ltd [I9931 3 WLR
74; R v. Secretary o f State for the Horrie Department, ex parte Wyrtne 119931 1 WLR 115
and R v. Brown [I9931 2 WLR 556. See also A. Cunningham, 'The European Conventiono n Human Rights, Customary International Law and the Constitution', 43 ICLQ, 1994, p.
537.
98 See e.g. R r. Secretary o f State for the Home Department, ex parte Fernandes [I9841 2 All
ER 390.

I N T E R N A T I O N A L LAW A N D M U N I C I P A L LAW

141

One particular issue has arisen in the case of the implementation ofinternational obligations and that relates to United Nations sanctions.
In the UK, such sanctions are enforced as a consequence of the United
Nations Act 1946 which enables the Crown to adopt Orders in Council sothat effect can be given to sanctions.99Such secondary legislation tends tobe detailed and thus the possibility of differential interpretations arises. It
is to be noted that the relevance and application of rules of the European
Union may also be in issue.loOFurther, one may note the obligation contained in article 29 of the Statute of the International Criminal Tribunal
for the Former Yugoslavia, adopted by binding UN Security Council resolution 827 (1993), for all states to co-operate with the Tribunal and inparticular to 'comply without undue delay with any request for assistanceor an order issued by a Trial Chamber', including the arrest and detention of persons and their surrender or transfer to the Tribunal. This was
implemented by secondary legislation adopted under the United Nations
Act 1946.1°'
In the interpretation of international treaties incorporated by statute,
the English courts have adopted a broader approach than is customary in statutory interpretation.lo2In particular, recourse to the relevant
travaux preparatoires may be possible.lo3 However, different approaches
have been taken by the British courts as to how to deal with the question
99 See e.g. the Iraq and Kuwait ( U N Sanctions) Order 1990, SI 1990 No. 1651; the Serbia

and Montenegro (UN Sanctions) Orders 1992 and 1993, SI 1992 No. 1302 and SI 1993
No. 1188; the Libya (UN Sanctions) Orders 1992 and 1993, SI 1992 Nos. 973 and 975 andSI 1993 No. 2807; the Former Y'ugoslavia (UN Sanctions) Order 1994, SI 1994 No. 2673.
loo See e.g. Ex Parte Cenfro-Con1 [I9941 1 CMLR 109; [I9971 ECR 1-81, and [I9971 3 \.\'LR
239; 117 ILR, p. 444. See also R. Pavoni, 'UN Sanctions in EU and National Law: The
Centro-Corn Case: 48 ICLQ, 1999, p. 582.
' " I TheUN (InternationalTribunalj(Former Yugoslavia)
Order 1996, SI 1996 No. 716. See fordiffering approaches to this procedure, C. T17arbrick,'Co-operation with the International
Criminal Tribunal for Yugoslavia: 45 ICLQ, 1996, p. 947, and H. Fox, 'The Objections toTransfer of Criminal Jurisdiction to the Tribunal: 46 ICLQ, 1997, p. 434.
'02 Lord Slynn stated in R (A1 Faivwaz) v. Governor of Brixtorl Prison that 'to apply to extradition treaties the strict canons appropriate to the construction of domestic statutes
would often tend to defeat rather than to serve [their] purpose: [2001] UKHL 69, para.
39, citing Lord Bridge in Ex Parte Postleth~vaite[1988] AC 924, 947.
'03 See Btlchanan v. Bahco [I9781 AC 141 and Fothergill v. Monarch Airlines [I9811 AC 251;
74 ILR, p. 648. Compare in the latter case the restrictive approach of Lord Wilberforce,[I9811 AC 278; 74 ILR, p. 656 with that of Lord Diplock, [I9811 AC 283; 74 ILR, pp.
661-2. See also Goldrnar~v. Thai Ailways Internutiorla1 Ltd [I9831 3 All ER 693. Note alsothat in Wahda Bank r. Arab Bank plc Times Law Reports, 16 December 1992, Phillips
1 referred to UN sailctions resolutions ill examining the question of the applicability of
the Order in Couilcil implementing the sanctions internally to the case in question. See
further Re H (Minors) [1998] AC 72.

142

I N T E R N A T I O N A L LAW

of interpretation in such circumstances. In Sidhu v. British Airways, Lord
Hope, adopting the broad approach signalled in Fothergill v. Monarch
Airlines, stated that it was 'well-established that a purposive approachshould be taken to the interpretation of international conventions whichhave the force of law in this country:'04 Lord Mustill in Senzco Salvage v.
Lancer Navigation took a more traditional approach founded upon therelevant articles of the Vienna Convention on the Law of Treaties, 1969,1°'
in particular emphasising the significance of a textual interpretation of
the words in question as understood in their ordinary meaning.'06 In arather special position is the Human Rights Act 1998, which incorporated
the European Convention on Human Rights. Section 3(1) provides that,'So far as it is possible to do so, primary and subordinate legislation must
be read and given effect in a way which is compatible with Convention
rights', although this does not affect the validity, continuing operation or
enforcement of any incompatible primary legi~lation.'~'The obligation
imposed by s. 3 arises crucially in relation to both previous and subsequent enactments.lo8 Where legislation cannot be rendered compatible
with Convention rights, then a declaration of incompatibility can be madeunder s. 4 and Parliament may then modify the offending provisions under s. 10. The courts have also adopted a broader, purposive approach tointerpretation of domestic legislation in order to ensure its compatibility
with the onv vent ion.'^^ In the process of interpreting domestic legislation so as to render it compatible if possible with the Convention rights,
the courts 'must take into account"1° any relevant jurisprudence fromthe European Court of Human Rights, although this is not a provision
imposing an obligation to follow such case-1aw.l Reference should also
be made to the growing importance of entry into the European Communities in this context. The case-law of the Communities demonstrates that
fundamental rights are an integral part of the general principles of law,
the observance of which the European Court of Justice seeks to ensure.
The system provides that Community law prevails over national law and'ln4 119971 1 All ER 193,202.

lf15 See belo~v,
chapter 16, p. 838.

ln6 [I9971 1 All ER 502,512.

Section 3(2)b.Nor that of incompatible subordinate legislation ~vhereprimary legislation
prevents removal of the incompatibility: section 3(2)c.
""ection
3(2)a.See further H. Fenwick, Civil Liberties and Htlrnan Rights, 3rd edn, London,
2002, p. 139, and R. Clayton and H. Tomlinson, Human Rights Law, London, 2000, chapterlo'4.
ln9 See e.g. the decisioil of the House of Lords in R v. A [2001] 2 WLR 1546 and R (on theapplication of Alcotzbt~ryLtd) v. Secretary of State for the Environment, Transport and theRegions [2001] 2 All ER 929.
'lo Section 2 of the Hunlan Rights Act.
11' See further below, chapter 7, p. 321.

INTERNATIONAL LAW A N D M U N I C I P A L LAW

I43

that the decisions ofthe European Court are to be applied by the domestic
courts of the member states. The potential for change through this routeis, therefore, significant.ll2 Further, in interpreting domestic legislation
made pursuant to the European Communities Act 1972 where the former
appears to conflict with the Treaty of Rome (establishing the European
Community), the House of Lords has held that a purposive approachshould be adopted.'I3
The United states114
As far as the American position on the relationship between municipal law
and customary international law is concerned, it appears to be very similar
to British practice, apart from the need to take the Constitution into
account. The US Supreme Court in Boos v. Barry emphasised that, 'Asa general proposition, it is of course correct that the United States has avital national interest in complying with international law.' However, therules of international law were subject to the Con~titution."~An early acceptance of the incorporation doctrine was later modified
as in the UK. It was stated in the Paquete Habana case116thatinternational law is part of our law and must be ascertained and administered by the courts ofjustice of appropriate jurisdiction as often as questionsof right depending upon it are duly presented for their determination.'"e.g. Nold v. EC Conzrnission [I9741 ECR 491, 508 and Rutili v. Ministry ofInterior of
French Republic [1975]ECR 1219.
'I3 Pickstone v. Freemtins [I9881 3 WLR 265. See also Litster v. Forth Dry Dock Engineering[I9891 1 All ER 1194.
""eee.g. 1. J. Paust, International Luiv as Law of the United States, Durham, NC, 1996;
Morgenstern, 'Judicial Practice'; I. Seidl-Hohenveldern, 'Transformation or Adoption ofInternational Law into Municipal Law', 12 ICLQ, 1963, p. 88; Oppenlzeinz's InternationalLaw, pp. 74 ff.; C. Dickinson, 'The Law of Nations as Part of the National Law of theUnited States', 101 University ofPennsylvania Law Review, 1953, p. 793; R. A. Falk, The
Role of Dornestic Courts in the lnternationrzl Legal Order, Princeton, 1964; R. B. Lillich,'Domestic Institutions' in The Future ofthe International Legal Order (eds. C. Black and
R. A. Falk), New York, 1972, vol. IV, p. 384; L. Henkin, Foreign Affairs and the Corlstitrltioil,
New York, 1972; L. Henkin, 'International Law as Law in the United States', 82 Michigan
Law Review, 1984, p. 1555; J. J. Paust, 'Customary International La~v:Its Nature, Sourcesl Inte~natioilalLaw, 1990,
and Status as Law in the United States', 12 ~VichigaizJ o n ~ n aof
p. 59, and L. Henkin, R. C. Pugh, 0. Schachter and H. Smit, International Latv Casesand ~\Jaterials,3rd edn, St Paul, 1993, chapter 3. See also Treaties and Other International
Agreements: A Study Prepared for the Committee on Foreign Relations, US Senate, 2001.
99 L Ed 2d 333,345-7 (1988);121 ILR, p. 551.
""17
US 677 (1900).See also Respublica v. De Longchamps 1 Dall. 111.
'I7 175 US 677, 700. See Hilton v. Guyot 159 US 113 and United States v. Melekh 190 F. Supp.
67 (1960), cf. Panling v. McElroy 164 F. Supp. 390 (1958).
""ee

I44

I N T E R N A T I O N A L LAW

Similarly, the early pure incorporation cases gave way to a more cautious
approach."'The current accepted position is that customary international law in
the US is federal law and that its determination by the federal courts isbinding on the state court^."^ The similarity of approach with the UK
is not surprising in view of common historical and cultural traditions,and parallel restraints upon the theories are visible. American courts arebound by the doctrine of precedent and the necessity to proceed according
to previously decided cases, and they too must apply statute as against any
rules of customary international law that do not accord with it.120 The
Court ofAppeals reaffirmed this position in the Corninittee of United States
Citizens Living in Nicaragua v. Reagan case,l2' where it was noted that 'noenactment of Congress can be challenged on the ground that it violates
customary international law'.122
It has been noted that the political and judicial organs of the UnitedStates have the power to ignore international law, where this occurs pursuant to a statute or 'controlling executive act'. This has occasioned muchcontroversy,123as has the general relationship between custom and inconsistent pre-existing statutes.124However, it is now accepted that statutes
supersede earlier treaties or customary rules of international law.12"t has
also been held that it would run counter to the Constitution for a court
to decide that a decision of the International Court of Justice overrules
See e.g. Cook v. United States 288 US 102 (1933); 6 AD, p. 3 and United States v. Clazis 63
F. Supp. 433 (1944).
'I9 See US v. Belrnont 301 US 324, 331, 57 S. Ct. 758, 761 (1937); 8 AD, p. 34 and Third
US Restatemer~tof Foreign Relations Laiv, St Paul, 1987, vol. I, pp. 48-52. See also Kadit
v. Karadiit 70 F.3d 232, 246 (2d Cir. 1995) and In Re Estate of Ferdinand E. ~Varcos
Hufnan Rights Litigation 978 F.2d 493, 502 (9th Cir. 1992). However, see C. A. Bradley
and J. L Goldsmith, 'Customary International Law as Federal Common Law: A Critiqueof the Modern Position: 110 Harvard LaivRevieiv, 1997, p. 816, and J. Paust, 'Customary
International Law in the United States: Clean and Dirty Laundry', 40 German YIL, 1997,
p. 78.
See e.g. Schroeder v. Bissell5 F.2d 838, 842 (1925).
859 F.2d 929 (1988).
Iz2 Ibid., at 939. See also Tag v. Rogers 267 F.2d 664, 666 (1959); 28 ILR, p. 467 and CTS v.
Euiis (No. 3) 724 F.2d 1086, 1091 (1991); 88 ILR, pp. 176, 181.
12' See Brown v. United States 12 US (8 Cranch) 110, 128 (1814) and LVhitney v. Robertson
124 US 190, 194 (1888).See also Henkin, 'International Law ', 17. 1555. See also RodriguezFernarldez v. Wilkinson 654 F.2d 1382 (1981); 505 F.Supp 787 (1980); ZIS v. PLO 695
F.Supp. 1456 (1988) and Klinghofler r.SNCAchille Lauro 739 F.Supp. 854 (1990).
'24 See Third US Restatement of Foreign Relations Laiv, pp. 63-9 (9115); the Reagan case, 859
F.2d 929, and Goldklang, 'Back on Board the Paquete Habuna', 25 Va. JIL, 1984, p. 143.
See previous footnote.
'I8

"'

'"

'"

INTERNATIONAL LAW A N D M U N I C I P A L LAW

I45a binding decision of the US Supreme Court and thus affords a judicial
remedy to an individual for a violation of the ~ o n s t i t u t i o n . ' ~ ~There does exist, as in English law, a presumption that legislation is notassumed to run counter to international law and, as it was stated by the
Court in Schroeder v. is sell,'^^unless it unmistakably appears that a congressional act was intended to be
in disregard of a principle of international comity, the presumption is that
it was intended to be in conformity with it.'"

The relationship between US law and customary law has been the subject of re-examination in the context of certain human rights situations.
' ~ ~US Court of Appeals for the Second CirIn Filartiga v. ~ e n a - l r u l a , thecuit dealt with an action brought by Paraguayans against a Paraguayan
for the torture and death of the son of the plaintiff. The claim was basedon the Alien Tort Claims Act of 1789130which provides that '[tlhe district
courts shall have original jurisdiction of any civil action by an alien fora tort only, committed in violation of the law of nations'. The Court ofAppeals held that torture constituted a violation of international customary law and was thus actionable. The Court accordingly held against thedefendant despite the fact that both parties were alien and all the operative acts occurred in Paraguay. The Court also noted that in ascertaining
the content of international law, the contemporary rules and principles
of international law were to be interpreted and not those as of the date of
the prescribing statute.13'
Other cases came before the courts in which the incorporation of international customary law provisions concerning human rights issues was
Valdez v. Oklallorna, US Court of Criminal Appeals of Oklahoma, Case No. PCD-20011011,2002.
5 F.2d 838 (1925).
12' Ibid., p. 842. See also Macleod v. United States 229 US 416 (1913) and Littlejolln Q Co. v.
United States 270 US 215 (1926); 3 AD, p. 483.
129 630 F.2d 876 (1980); 77 ILR, p. 169. See e.g. R. B. Lillich, Invoking Huntan Rights Law inDonzestic Cotlrt.c,Charlottesville, 1985, and Comment, 'Torture as a Tort in Violation ofInternational Law', 33 Stanford Law Review, 1981, p. 353.
28 USC 1350 (1988).
630 F.2d 876,881 (1980); 77 ILR, pp. 169,175. See also Anlerada Hess v. Argentine Republic
830 F.2d 42 1; 79 ILR, p. 1. The norms of international law were to be found by 'consulting

"6

"'

'"

the works ofjurists, writing professedly on public law; or by the general usage and practiceof nations; or by judicial decisions recognising and enforcing that law', 630 F.2d 876,880;
77 ILR, ihid., p. 174, quoting United States v. Smith 18 US (5 Wheat.), 153, 160-1. See
also KadiC v. Karadiit 34 I L M , 1995, p. 1592.

146

I N T E R N A T I O N A L LAW

argued with mixed success.'32An attempt to obtain a judgment in the US
against the Republic of Argentina for torturing its own citizens, however,ultimately foundered upon the doctrine of sovereign immunity,'33 while
it has been held that acts of 'international terrorism' are not actionable'~~
under the Alien Tort Claims Act.'" However, in KadiC v. K a r a d i i ~ , the
US Court of Appeals for the Second Circuit held that claims based on official torture and summary executions did not exhaust the list of actions
that may be covered by the Alien Tort Claims Act and that allegations of
genocide, war crimes and other violations of international humanitarianlaw would also be covered.'3h
The relative convergence of practice between Britain and the UnitedStates with respect to the assimilation of customary law is not reflected asregards the treatment of international treaties.13' In the United Kingdom,
it is the executive branch which negotiates, signs and ratifies international agreements, with the proviso that parliamentary action is required
prior to the provisions of the agreement being accepted as part of English
law. In the United States, on the other hand, Article VI Section 2 of theConstitution provides that:
all Treaties made or which shall be made with the authority of the UnitedStates, shall be the supreme law of the land and the Tudges in every stateshall be bound thereby, anything in the Constitution or Laws of any statet o the contrary n ~ t w i t h s t a n d i n ~ . ' ~ ~e.g. Fernandez v. Wilkinson 505 F.Supp. 787 (1980) and In re Alien Children Eductition
Litigation 501 F.Supp. 544 (1980).
'" Sidernzan v. Republic ofArgmtinti, No. CV 82-1772-RMT (MCx) and Internationtil Practitioner's voteb book, July 1985, p. 1. See also below, chapter 13.
""el-0renv. Libyan Arab Repiiblic 517 F.Supp. 542 (1981), a f ' d p e r cnriam, 726 F.2d 774(1984), cert. denied 53 USLW 3612 (1985); 77 ILR, p. 192. See e.g. A. D'Amato, '\$'hat
Does Tel-Oren Tell Lawyers?',79 AJIL, 1985, p. 92. See also De Scinchez v. Bunco Central
de Nicaragzlrz 770 F.2d 1385, 1398 (1985); 88 ILR, pp. 75, 90 and Liiider v. Portocarrero
747 F.Supp. 1452; 99 ILR, p. 55.
""ee

34 ILM, 1995, p. 1592.
Note that the US Torture Victim Protection Act 1992 provides a cause of action for
official torture and extrajudicial killing where an individual, under actual or apparent
authority or colour of la\%,of any foreign law subjects, engages in such activities. This
is not a jurisdictional statute, so that claims of official torture will be pursued under
the jurisdiction conferred by the Alien Tort Act or under the general federal question
jurisdiction of section 1331: see e.g. Xuncax v. Grarnajo 886 FSupp 162 (1995).
See e.g. Jackson, 'Status of Treaties',p. 310, and D. Vagts, 'The United States and its Treaties:
Observance and Breach', 95 AJIL, 2001, p. 313.
"* See e.g. Ware v. Hylton 3 US ( 3 Dall.) 199 (1796) and Foster v. Neilson 27 US (2 Pet.)
253 (1829). See also on treaty powers and the 'reserved powers' of the states the tenthamendment, Missoilri u. Hollarid 252 US 416 (1920); 1 AD, p. 4 and United States v.
Ctlrtiss-Wright Export Corporation 299 US 304 (1936); 8 AD, p. 48.

'"

INTERNATIONAL LAW A N D M U N I C I P A L LAW

I47

There is also a difference in the method of approval of treaties, for
Article I1 of the Constitution notes that while the President has the power
to make international agreements, he may only ratify them if at least
two-thirds of the Senate approve.
- There is an exception and this is the institution of the executive agreements. These are usually made by the President on his own authority, but
still constitute valid treaties within the framework of international law.
As distinct from ordinary treaties, the creation of executive agreements
is not expressly covered by the Constitution, but rather implied from its
terms and subsequent practice, and they have been extensively used. The
Supreme Court, in cases following the 1933 Litvinov Agreement, which
established American recognition of the Soviet government and provided
for the assignment to the US of particular debts owing to the USSR, emphasised that such executive agreements possessed the same status anddignity as treaties made by the President with the advice and consent of
the Senate under Article I1 of the ~ o n s t i t u t i o n . ' ~ ~American doctrines as to the understanding- of treaty law are founded
upon the distinction between 'self-executing' and 'non-self-executing'treaties.'" The former are able to operate automatically within the domestic sphere, without the need for any municipal legislation, while thelatter require enabling acts before they can function inside the country andbind the American courts. Self-executing treaties apply directly within the
United States as part of the supreme law of the land, whereas those conventions deemed not self-executing are obliged to undergo a legislativetransformation and, until they do so, they cannot be regarded as legally
enforceable against American citizens or institution^.'^^
But how does one know when an international agreement falls into one
category or the other? This matter has absorbed the courts of the UnitedStates for many years, and the distinction appears to have been madeupon the basis of political content. In other words, where a treaty involves~ e e e . gUnitedStates.
v. Pink 315 US 203 (1942); 10 AD, p.48. See, as regards the President's
power to settle claims and create new rules of law applicable to pending legislation, Dames&Moore v. Reg~ln101 SC 2972 (1981); 72 ILR, p. 270.
14' See e.g. Y.Iwasa~va,'The Doctrine of Self-Executing Treaties in the United States: A
Critical Analysis: 26 Va. JIL, 1986, p. 635; J. Paust, 'Self-Executing Treaties: 82 AJIL, 1986,
p. 760; T. Buergenthal, 'Self-Executing and Non-Self-Executing Treaties in National andInterilatioilal Law', 235 HR, 1992 IV, p. 303, and C. M. Vazquez, 'The Four Doctriiles of
Self-Executing Treaties: 89 AJIL, 1995, p. 695.
l4' See e.g. Foster v. Neilson 27 US (2 Pet.) 253, 311, 7 L.Ed. 415 (1829); United States v.
Percheman 32 US (7 Pet.) 51 (1833); United States v. Postal 589 F.2d 862, 875 (5th Cir.
1979), cert. denied, 444 US 832 and Linder v. Portocarrero 747 F.Supp. 1452, 1463; 99 ILR,
pp. 55, 67-8.

148

I N T E R N A T I O N A L LAW

political questions of definition or exposition, then the issue should beleft to the legislative organs of the nation, rather than automatic operat i ~ n .Examples
l~~of this would include the acquisition or loss of territory
and financial arrangements. The Supreme Court in Edye v. ~obertson'~"declared that treaties whichcontain provisions w h i c h are capable o f enforcement as b e t w e e n private
parties in t h e courts o f t h e c o u n t r y . . . [are] i n t h e same category as otherlaws o f Congress.

This would seem to mean that an international convention would become a law of the land, where its terms determine the rights and duties
of private citizens, and contrasts with the position where a political issue
is involved and the treaty is thereby treated as non-self-executing.
Of course such generalisations as these are bound to lead to considerable
ambiguity and doubt in the case of very many treaties; and the wholematterwas examined again in 1952 before the Supreme Court of California
in Sei Fujii v. Ca1if0rnia.l~~
The plaintiff was a Japanese citizen who had
purchased some land in 1948 in California. By legislation enacted in thatstate, aliens had no right to acquire land. To prevent the property fromgoing to the state, the plaintiff argued that, amongst other things, such
legislation was not consistent with the Charter of the United Nations,an international treaty which called for the promotion of human rights
without racial distinction.
The issue raised was whether the UN Charter was a self-executing treaty
and, by virtue of such, part of the law of the land, which would supersede
inconsistent local statutes. The Court declared that, in making a decision
as to whether a treaty was self-executing or not, it would have to consult
the treaty itself to try to deduce the intentions of the signatories andexamine all relevant circumstances. Following Edye's case it would haveto see whether the provisions of the treaty laid down rules that were to be
enforceable of themselves in the municipal courts.
The Court concluded after a comprehensive survey that the relevant
provisions of the UN Charter were not intended to be self-executing.
They laid down various principles and objectives of the United Nations'" See Chief Justice Marshall, Foster v. Neilsorl27 U S ( 2 Pet.) 253, 314 (1829).See also J.C .
Yoo, 'Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original
Understanding: 99 Columbia Law Review, 1999, p. 1955, and I7agts, 'US and its Treaties',
p. 321.
14' 112 U S 580 (1884).
38 C a l ( 2 d )718 (1952).

INTERNATIONAL LAW A N D M U N I C I P A L LAW

I49

Organisation, but 'do not purport to impose legal obligations on the individual member nations or to create rights in private persons'. The Court
held that it was obvious that further legislative action by the signatories
would be called for to turn the principles of the UN into domestic lawsbinding upon the individual citizens of states.'" Accordingly, they could
not be regarded as part of the law of the land and could not operate todeflect the Californian legislation in question. The case was decided infavour of the plaintiff, but on other grounds a1t0~ether.l~~
As is the case with the UK system, it is possible for the American
legislature to take action which not only takes no account of internationallaw rules but may be positively contrary to them, and in such an instancethe legislation would be supreme within the American jurisdiction.
In Diggs v. ~ c h u l t z , for' ~ ~example, the Court had to consider the effectof the Byrd Amendment which legalised the importation into the USA
of strategic materials, such as chrome from Rhodesia, a course of action
which was expressly forbidden by a United Nations Security Council resolution which in the circumstances was binding. The Court noted thatthe Byrd Amendment was 'in blatant disregard of our treaty undertakings' but concluded that: 'under our constitutional scheme, Congresscan denounce treaties if it sees fit to do so, and there is nothing theother branches of government can do about it.' Although in municipal terms the Amendment was unchallengeable, the United States was,of course, internationally liable for the breach of an international legal
rule.148
However, there is a presumption that Congress will not legislate contrary to the international obligations of the state'" and a principle of
14'

'41

14'

'"

Ibid., p. 721.
See e.g. People of Saipan ex rel. Guerrero v. LTnited States Departtnent of Interior 502 F.2d
90 ( 1 9 7 4 ) ;61 ILR, p. 113. See also Carnacho v. Rogers 199 F.Supp. 155 ( 1 9 6 1 ) and Diggs
v. Dent 14 ILM, 1975, p. 797. Note also 0.
Schachter, 'The Charter and the Constitution',
4 T7anderbilt Law Review, 195 1 , p. 643.
470 F.2d 461,466- 7 ( 1 9 7 2 ) ;60 ILR, pp. 393,397. See also Breard v. Greene 523 US 371,
376 ( 1 9 9 8 ) and Havana Club Holding Inc. v. Galleon SA 974 F.Supp. 302 (SDNY 1997),
aff'd 203 F.3d (2d Cir. 2000).
This, of course, reflects the general rule. See e.g. G. Hackworth, Digest of InternationalLaw, T17ashington,1940-4, vol. V, pp. 185-6 and 324-5. See also Third US Restatettlent o f
Foreign Relatioris Law, 1987, para. 1 l j ( 1 ) b .
See e.g. Marshall CT, Murray v. Schooner CharrningBetsy 6 US ( 2 Cranch) 64; Weinberger v.
Rossi456 US 25 ( 1 9 8 2 )and Cook r.United States288 US 102 ( 1 9 3 3 ) .See also R. Steinhardt,'The Role of International Law as a Canon of Domestic Statutory Construction', 43
Vanderbilt LatvRevie~v,1990, p. 1103, and C . A. Bradley,' T h e CliarrningBet.cy Canon and
Separation of Powers', 86 Georgia Law Journal, 1998, p. 479.

I50

I N T E R N A T I O N A L LAW

interpretation that where an act and a treaty deal with the same subject,
the courts will seek to construe them so as to give effect to both of themwithout acting contrary to the wording of either. Where the two are inconsistent, the general rule has been posited that the later in time will
prevail, provided the treaty is ~ e l f - e x e c u t i n ~ . ' ~ ~The question of a possible conflict between treaty obligations and domestic legislation was raised in United States v. Pulestine Liberution Orgunisution.'51 The Anti-Terrorism Act of the previous year152provided forthe closure of all PLO offices in the United States and this was construed by
the Attorney-General to include the PLO mission to the United Nations,an action which would have breached the obligations of the US under theUnited Nations Headquarters Agreement. However, the District Court
found that it could not be established that the legislation clearly and unequivocally intended that an obligation arising out of the Headquarters
Agreement, a valid treaty, was to be violated.'j3
The issue of the relationship between international treaties and municipal law came before the US Supreme Court in Breard v. Greene.'j4 The
Court noted that 'respectful consideration' should be given to the interpretation of an international treaty by a relevant international court;15'
however, 'it has been recognised in international law that absent a clear andexpress statement to the contrary, the procedural rules of the forum State
govern the implementation of the treaty in that State'.'j6 Accordingly, theeffect of resort to a domestic procedural rule might result in preventing
the provision of an international treaty from being applied in any given
case. The Supreme Court also affirmed that international treaties under
the Constitution were recognised as the 'supreme law of the land', but sowere the provisions of the Constitution. An Act of Congress was 'on fullSee the decision of the Supreme Court in M.'hit~zey v. Robertson 124 US 190 (1888). The
Third US Restatenlent ofForeign Relations Law, pp. 63 ff. suggests that an Act of Congress
will supersede an earlier rule of international law or a provision in an international
agreement 'if the purpose of the act to supersede the earlier rule or provision is clear orif the act and the earlier rule or provision cannot be fairly reconciled:"I
695 F.Supp. 1456 (1988).
22 USCA, paras. 5201-3.
Ibid. See the Advisory Opinion of the International Court in the Applicability o f the
Obligation to Arbitrate case, ICJ Reports, 1988, p. 12; 82 ILR, p. 225. See also DUSPIL,
1981-8, part I, pp. 8 ff.
140 L.Ed. 2d 529 (1998); 118 ILR, p. 22.
'j5 The issue concerned the Vienna Convention on Consular Relations, 1963, and the international court in question was the International Court of Justice in Paraguay v. LrSA, ICT
Reports, 1998, p. 248; 118 ILR, p. 1.
140 L.Ed.2d 529, 537 (1998); 118 ILR, p. 22.
li0

'"

"'

INTERNATIONAL LAW A N D M U N I C I P A L LAW

151

parity' with a treaty, so that a later statute would render an earlier treaty
null to the extent of any conflict.'j7
Other countries
In other countries where the English common law was adopted, such as
the majority of Commonwealth states and, for example, 1srael,'j8 it ispossible to say that in general the same principles apply. Customary law
is regarded on the whole as part of the law of the land.'59Municipal laws
are presumed not to be inconsistent with rules of international law, but
in cases of conflict the former have precedence.
The Canadian Supreme Court in the Reference Re Secession of Quebec
judgmentl6' noted that it had been necessary for the Court in a numberof cases to look to international law to determine the rights or obligationsof some actor within the Canadian legal system.16' As far as treaties areconcerned, Lord Atkin expressed the general position in Attorney-General
for Canada v. Attorney-General for 0ntario,16"n a case dealing with therespective legislative competences of the Dominion Parliament and theprovincial legislatures. He noted that within the then British Empire it waswell enshrined that the making of a treaty was an executive act, while theperformance of its obligations, if they involved alteration of the existing
15'

Ibid.

15'

See the Eichmann case, 36 ILR, p. 5; R. Lapidoth, Les Rapports entre le Droit International
Public et le Droit Interne en Israel, Paris, 1959, and Lapidoth, 'International Law Within
the Israel Legal System', 24 Israel Latv Review, 1990, p. 251. See also the Affo case before
the Israeli Supreme Court, 29 ILM, 1990, pp. 139, 156-7; 83 ILR, p. 121, and the Legalityof Interrogation Methods case, Israeli Supreme Court judgment of 6 September 1999,~.~~'~,co~~rt.gov.il/mishpat/html/en/verdict/judgment.rtf.
But see as to doubts concerning the application of the automatic incorporation of customary internationallaw into Australia, I. Shearer, 'The Internationalisation ofA~~stralianLaw', 17 Sydney LatvReview, 1995, pp. 121, 124. See also G. Triggs, 'Customary International Law and Australian Law' in The Emergence ofAustralian Latv (eds. M. P. Ellinghaus,
A. J. Bradbrook and A. J. Duggan), 1989, p. 376. Note that Brennan J in Mabo v. Queensland (1992) 175 CLR 1,41-2, stated that 'international law is a legitimate and important
influence on the development of the common law:
160 (1998) 161 DLR (4th) 385, 399; 115 ILR, p. 536. See also G. La Forest, 'The Expanding
Role of the Supreme Court of Canada in International Law Issues', 34 Canadian YIL, 1996,
p. 89.
See also Reference re Poivers to Levy Ratex on Foreign Legations and High Cornrnissioners'
Residences [I9431 SCR 208; Reference re Ownership of Ofihore Mineral Rights of British
Columbia [I9671 SCR 792; 43 ILR, p. 93, and Reference reNeivfoundland Continental Shelf[I9841 1 SCR 86; 86 ILR, p. 593.
16' [I9371 AC 326; 8 AD, p. 41.

Is'

'"

152

I N T E R N A T I O N A L LAW

domestic law, required legislative action. 'The question', remarked Lord
Atkin,
is not how is the obligation formed, that is the fi~nctionof the executive, but
how is the obligation to be performed, and that depends upon the authorityof the competent legislature or legislature^.'^^The doctrine that customary international law forms part of the domestic law of Canada has been reaffirmed in a number of cases.16"hishas also been accepted in New ~ e a l a n d and' ~ ~in ~ustra1ia.l~'
The relationship between treaties and domestic law was examined by the High
Court of Australia in illinister of State for Immigration andEthnic Affairs v.
A h Hin Teoh F C . The~ ~ Court~
upheld the traditional doctrine to the effect that the provisions of an international treaty to which Australia is aparty do not form part of Australian law, and do not give rise to rights,
unless those provisions have been validly incorporated into municipal
law by statute.'68 It was noted that this was because of the constitutional
separation of functions whereby the executive made and ratified treaties,
lh3 Ibid., pp, 347-8; 8 AD, pp. 43-4.
lh4 See e.g. Reference re Exenlptioris of US Forcesfioin Canadian Criminal Law 119431 4 DLR

11,41and Reference re Power? to Levy Rates on Foreign Legations and High Coinmissioners'
Residences [I9431 SCR 208.
lh5 See e.g. Marine Steel Ltd u. GoiJernmentof the Marshall Islands [I9811 2 NZLR 1 andGovernor ofpitcairn and Associated Islands v. Sutton [I9951 1 NZLR 426. The courts havealso referred to a presumption of statutory interpretation that, so far as ~vordingallows,
legislation should be read in a way that is consistent with New Zealand's obligations: seee.g. Rajan u. iMir~isterof bnirrigration [I9961 3 NZLR 543, 551 and b\iellington District
Legal Services v. Ezngiora [I9981 1 NZLR 129, 137.
Ih"eee.g. Potter v. BHP Co. Ltd (1906) 3 CLR 479, 495, 506-7 and 510; Th7rig1lt v. Cantrell(1943) 44 SR (NSW) 45; Politer v. Conzmon~vealth(1945) 70 CLR 60 and Chow Hung
Ching v. R (1948) 77 CLR449. These cases are unclear as to whether the incorporationist
or transformation approaches have been adopted as the appropriate theoretical basis. As
to the view that international law is the 'source' of domestic lam: see Dixon J in Choiv
Hung Chitzgand Merkel 1 in Nt~lyarinzmav. Thompson (1999) 165 ALR 621, 653-5; 120
ILR, p. 353. See also Public International Latv: A n Australian Perspective (eds. S. Blay, R.
Piotrowicz and B. h1. Tsamenyi), Oxford, 1997, chapter 5, and H. Burmeister and S. Reye,'The Place of Customary International Law in Australian Law: Unfinished Business', 21Australian YIL, 2001, p. 39.
16' (1995) 128 ALR 353; 104 ILR, p. 466. See also Public hiterrlational Law: A n At~straliarl

Perspective.
See e.g. judgment by Mason CJ and Deane 1, (1995) 128 ALR 353, 361. See also
Dietrich v. The Queen (1992) 177 CLR 292, 305 and Coe v. Commonwealth ofAtlstralia(1993) 118 ALR 193,200-1; 118 ILR, p. 322. Reaffirmed by the High Court in K r ~ g e rv.
Commonivealth ofAl4stralia (1997) 146 ALR 126, 161; 118 ILR, p. 371.

INTERNATIONAL LAW A N D M U N I C I P A L LAW

I53

while the legislature made and altered 1 a ~ s .Thel~~majority of the Court,
however, went on to hold that the fact that a treaty had not been incorporated did not mean that its ratification by the executive held nosignificance for Australian law. Where a statute or subordinate legislation was ambiguous, the courts should favour that construction whichaccorded with Australia's obligations under the particular treaty,170whilea statute generally had to be interpreted as far as its language permitted so that it was in conformity and not in conflict with the establishedrules of international law. Indeed, the Court felt that a narrow conceptionof ambiguity in this context should be rejected."' Referring to Ex Parterind,'^^ the Court stated that this principle was no more than a canonof construction and did not import the terms of the treaty into municipallaw."3 Moving beyond this approach which is generally consistent with
common law doctrines, the majority of the Court took the view that ratification of a convention itself would constitute an adequate foundation
for a legitimate expectation (unless there were statutory or executive indications to the contrary) that administrative decision-makers would act
in conformity with the unincorporated but ratified c~nvention."~This
particular proposition is controversial in legal doctrine, but is an interesting example of the fact that internal decision-makers may not always
be expected to be immune from the influence of obligations undertakenby the state.'"'" (1995) 128 ALR 353,362 and see e.g. Sirnsek v. Macphee (1982) 148 CLR 636,641-2.
170

17'

17'
17'

17'

Judgment of Mason CJ and Deane J. See also ChungKhengLin v. Mi~listerforlmmigriztion(1992) 176 CLR 1,38. In Kruger v. Corr~rnonwealthofAustralia, Dawson J noted that sucha construction was not required where the obligations arise only under a treaty and thelegislation in question was enacted before the treaty, (1997) 146 ALR 126, 161; 118 ILR,
p. 371.
Ibid. See also Polites v. The Cornnlonwealth (1945) 70 CLR 60, 68-9, 77, 80-1.
[I9911 1 AC 696 at 748; 85 ILR, p. 29.
Judgment at 362.
Ibid., 365. See also the judgment ofToohey J, ibid. at 371-2, andthe judgment of GaudronJ, ibid. at 375-6. Cf. the judgment of McHugh J, ibid. at 385-7.
Note that after the decision in Teoh, the Minister for Foreign Affairs and the Attorney
General issued a Joint Statement (10 May 1995) denying the existence of any such legitimate expectation upon the ratification of a treaty: see M. Allars, 'One Small Step for
Legal Doctrine, One Giant Leap Towards Integrity in Government: Teoll's Case and theInternationalisation ofAdministrative Law', 17 Sydney LaivRevieiv, 1995, pp. 204,237-41.
The Government also introduced the Administrative Decisions (Effect of International
Instruments) Bill 1995 into the Parliament with the specific purpose of denying thattreaties or con~rentionsgive rise to a legitimate expectation of how a decision-maker will
make a decision in an area affected by such international instruments. See also Trick or

I54

I N T E R N A T I O N A L LAW

Although the basic approach adopted by the majority of common law
states is clear, complications have arisen where the country in question has
a written constitution, whether or not specific reference is made thereinto the treatment of international agreements. An example of the latter isIndia, whose constitution refers only in the vaguest of terms to the provisions of international law,'76whereas by contrast the Irish constitution
clearly states that the country will not be bound by any treaty involving
a charge upon public funds unless the terms of the agreement have been
approved by the ~ a i 1 . l ~Under'
article 169(3) of the Cyprus Constitution, treaties concluded in accordance with that provision have as frompublication in the Official Gazette of the Republic 'superior force to any
municipal law on condition that such treaties, conventions and agreements are applied by the other party thereto'.178In such cases where there
is a written constitution, serious questions of constitutional law may be
involved, and one would have to consider the situation as it arises andwithin its own political ~ 0 n t e x t . l 'But
~ in general common law states tend
to adopt the British approach.
Treaty? Colnmonivealth Power to Make and Implemeilt Treaties, a Report by the Senate
Legal and Constitutional References Committee, November 1995.
17"ee e.g. D. D. Basu, Commentaries on the Corzstittltiorz of Irzdia, New Delhi, 1962, vol. 11,
and Constitutions of the Mbrld (ed. R. Peaslee), 3rd edn, New York, 1968, vol. 11, p. 308.
See also K. Thakore, 'National Treaty Law and Practice: India' in Leigh and Blakeslee,lVational Treaty Latv and Practice, p. 79.
177 Peaslee, Constitutiovrs, uol. 111, p. 463 (article 29(5)2). Article 29 also states that Ireland
accepts the generally recognised principles of international law as its rule of conduct in
its relations with other states. See e.g. Re O'Laighleis 24 ILR, p. 420 and Re \Voods 53
ILR, p. 552. See also Crotty v. A n Tuoiseach 93 ILR, p. 480; l\4cGinlpsey v. Ireland [I9881
IR 567, and Kavanagh v. GolJervrorofMountjoy Prison [2002] 2 ILRM 81. Note also thedecision of the Irish High Court in Horgan v. A n Taoiseacll on 28 April 2003 reaffirmingthat article 29 does not confer individual rights, transcript at pp. 59 and 68.
17'
See e.g. Malachtou r.Armefti and Armefti, 88 ILR, p. 199.
See e.g. International Latv in Australia (ed. K. \I! Ryan), Sydney, 1984; Blay et al., Public
Irrternatior~alLauv: An Australian Perspective; A. Byrnes and H. Charlesworth, 'Federalism
and the International Legal Order: Recent Developments in Australia: 79 AJIL, 1985,
p. 622, and Koo~vartav. Bjelke-Petersen, High Court of Australia, 39 ALR 417 (11 May
1982); 68 ILR, 17. 181; Tabag v. Minister for Inirnigratiori and Ethnic Affairs, Federal Court
45 ALR 705 (23 December 1982); Commonwealth of Australia v. State ofof A~~stralia,
Tasmania, High Court of Australia, 46 ALR 625 (1 ruly 1983); 68 ILR, p. 266; Polyukhovich
v. Comrnonivealth (1991) 172 CLR 501 and 1MinisterforForeignAffairsv. Magno (1992) 37
FCR 298. See also International Law Chiefly as Interpreted and Applied in Canada (ed. H.
Kindred), 6th edn, Toronto, 2000, chapter 4; Re Ne~vfoundlandContinental Shelf[1984] 1
SCR 86, and C. Okeke, The Theory and Practice of International Law in Nigeria, London,
1986.

"'

INTERNATIONAL LAW A N D M U N I C I P A L LAW

I55

The practice of those states which possess the civil law system, based
originally on Roman law, manifests certain differences.lsO
The Basic Law of the Federal Republic of Germany,''' for example,
specifically states in article 25 that 'the general rules ofpublic internationallaw are an integral part of federal law. They shall take precedence over thelaws and shall directly create rights and duties for the inhabitants of thefederal territory."82 This provision, which not onlytreats international law
as part of municipal law but regards it as superior to municipal legislation,
has been the subject of a great deal of controversy as writers and lawyers
have tried to establish whether international legal rules would invalidate
any inconsistent municipal legislation and, indeed, whether internationalrules could override the constitution. Similarly, the phrase 'general rulesof public international law' has led to problems over interpretation as
it may refer to all aspects of international law, including customary andtreaty rules, or merely general principles common to all, or perhaps only
certain nations.ls3
As far as treaties are concerned, the German federal courts will regard
these as superior to domestic legislation, though they will not be allowed
to operate so as to affect the constitution. Article 59 of the Basic Law
declares that treaties which regulate the political relations of the federation
or relate to matters of federal legislation shall require the consent or
participation, in the form of a federal law, of the bodies competent in any
specific case for such federal legislation. Thereafter such treaties will betreated as incorporated into German law, but with the status (no higher)of a federal law. Such laws may indeed be challenged before the German
courts by means of a constitutional complaint if the treaty in question
contains provisions directly encroaching upon the legal sphere of theindividual. 84'

l a O See e.g. L. Wildhaber and S. Ereitenmoser, 'The Relationship Eet~veenCustomary Inter-national Law and Municipal Law in Western European Countries: 48 Za(iRV,1988, p, 163;
Oppenheim's Internrztional Lmv, pp. 63 ff., and Henlun et al., International Law Cases rznd
Materials, pp. 154 ff.
la' See H . D. Treviranus and H. Reemelmans, 'National Treaty Law and Practice: Federal
Republic of Germany' in Leigh and Blakeslee, National Treaty Law and Pmctice, p. 43.
la' See e.g. the ParkingPrivilegesfor Diplomats case, 70 ILR, p. 396.
'83 See e.g. D. P. O'Connell, Iiiternational Law, 2nd edn, London, 1970, vol. I, pp. 71-6, andsources therein cited. See also generally A. Drzemczewski, The Europeari Human Right5
Conveiltion iii Doinestic Law, Oxford, 1983, and Penslee, Constit~ltions,vol. 111, p. 361.
l a 4 See the Uni$cation Treaty Constit~~tionulity
case, 94 ILR, pp. 2,54. See also the Enst Treutiex
Constitutionality case, 73 ILR, p. 691.

I5 6

I N T E R N A T I O N A L LAW

Article 9 l(1) of the Netherlands Constitution 1983 requires the priorapproval of Parliament before treaties, or their denunciation, become
binding, while article 91(3) provides that any provisions of a treaty thatconflict with the Constitution or which lead to conflicts with it may beapproved by the Chambers of the Parliament, provided that at least twothirds of the votes cast are in favour. Article 94 provides that statutory
regulations in force within the Kingdom shall not be applicable if suchapplication is in conflict with provisions of treaties that are binding on all
persons or with resolutions by international i n s t i t u t i ~ n s . Customary'~~international law is deemed to apply internally, although it seems thatstatute will prevail in cases of conflict.1s6In a provision contained in otherconstitutions, article 10 of the Italian Constitution of 1947 stipulates that
the Italian legal order 'shall conform with the generally recognised rulesof international law: This is interpreted to indicate that internationalcustomary law will override inconsistent ordinary national legi~lation.'~'Article 8(1) of the Portuguese Constitution provides that the rules andprinciples of general or customary international law are an integral partof Portuguese law."'
The French Constitution of 1958 declares that treaties duly ratified andpublished shall operate as laws within the domestic system.'s9 However,
the Constitution provides that, although in principle it is the President of
the Republic who negotiates and ratifies treaties, with regard to important
See e.g. E. A. Alkema, 'Fundamental Human Rights and the Legal Order of the Netherlands' in Internatiorlal Laiv in the LAJetherlaizds(eds. H. Van Panhuys et al.), Dordrecht,
1980, vol. 111, p. 109; Peaslee, Constitutions, 1701. 111, p. 652; Oppenl~eim'sInterniztionalLaw, p. 69, and H. Schermers, The Effect of Treaties in Domestic Law (eds. F. Tacobs and
S. Roberts), Leiden, 1987, p. 109. See also e.g. Nordstern Allgemeine Versicl~erungsAG v.
Vereinigte Stinees Rheirlreedereien 74 ILR, p. 2 and Public Projecutor v. JO 74 ILR, p. 130.
Note also J. Klabbers, 'The New Dutch Law on the Approval of Treaties', 44 ICLQ, 1995,
p. 629.
lS6 See e.g. Harzdelsk~vekerijGJBier BV v. LUirzesde Potasse d'Alsace SA 11 Netherlands YIL,
1980, p. 326.
IS' Cassese, Itztertzational Law, p. 173. See also the decision of the Italian Court of Cassationin Catlada v. Cargnello 114 ILR, p. 559.
See e.g. the decision of the Supreme Court of Portugal in the Braziliarz Ewlbassy Ertzployee
case, May 1984, 116 ILR, p. 625.
l a y See Title VI of the Constitution. See also e.g. Nguyen Quoc Dinh et al., Droit Internatiorzal
Public, pp 231 ff.; P. M. Dupuy, Droit Irzterrzational Pt~blic,4th edn, Paris, 1998, pp. 369
ff.; D. Alland, 'Jamais, Parfois, Toujours. Reflexions sur la Competence de la Cour deCassation en Matiere d'Interpretation des Conventions Internationales: Revue Gtntrale
de Droit International Public, 1996, p. 599; \! Kronenberger, 'A New Approach to theInterpretation of the French Constitution in Respect to International Conventions: From
Hierarchy of Norms to Contlict of Competence', NILR, 2000, p. 323.

INTERNATIONAL LAW A N D M U N I C I P A L LAW

I57

treaties such as commercial treaties which entail some form of financial
outlay, treaties relating to international organisations, treaties modifying
legislation and treaties affecting personal status, ratification takes placeby Act of Parliament. Once the relevant legislation has been passed, theagreement is promulgated and becomes binding upon the courts. Article
55 of the Constitution provides that duly ratified or approved treaties oragreements shall upon publication override domestic laws, subject only
to the application of the treaty or agreement by the other party or parties to the treaty.lgOIt is also now accepted that the French courts may
declare a statute inapplicable for conflictingwith an earlier treaty.19' However, the Cour de Cassation has held that the supremacy of international
agreements in the domestic order does not extend to constitutional provision~.'~~
WhereasIn 1993, South Africa adopted anew (interim) constit~tion.'~'the previous constitutions of 1910, 1961 and 1983 had been silent on thequestion of international law, the 1993 Constitution contained several
relevant provisions. Section 23 l(4) states that 'the rules of customary international law binding on the Republic, shall, unless inconsistent withthis Constitution or an Act of Parliament, form part of the law of the Republic', This formulation confirms essentially the common law position
and would also suggest that the principle of stare decisis is not applicable tocustomary international law. As far as treaties are concerned, the previous
position whereby an Act of Parliament was required in order to incorporate an international agreement has been modified. While the negotiation
190 See e.g. O'Connell, Internatioiial Law, pp. 65-8; Rousseau, Droit International Public, and

19'

'"

'"

Peaslee, Constitutions, uol. 111, p. 312. See also S A Rotllrnans Internatiofzal France and S A
Philip Morris France 93 ILR, p. 308.
See the Cafes Jacques Vabre case, 16 Common Market Law Review, 1975, p. 336 and 6 1
re Ilricolo 84 ATIL, 1990, p. 765; 93 ILR, p. 286. Under article 54 of the Constitution,
the Constitutional Council may declare a treaty to be contrary to the Constitution, sothat the Constitution must first be amended before the treaty may be ratified or approved. See e.g. Re Treaty on European Union 93 ILR, p. 337. See also Ligue hlternationale Contre le Racisme et l'Antistrrlitisme, AFDI, 1993, p. 963 and AFDI, 1994, pp.
963 ff.
See Pauline Fraisse, 2 June 2000, Btllletin de 1'Assettzblbe Pldnit.re, No. 4, p. 7 and Levacher,
RFDA, 2000, p. 79. The position with regard to customary law is unclear: see e.g. Aquarone,
RGDIP, 1997-4, pp. 1053-4; Barbie, Cass. Crim., 6 October 1983, Bull., p. 610 and Kadahfi,
RGDIP, 2001-2, pp. 474-6.
See 33 ILM, 1994, p. 1043. This interim constitution came into force on 27 April 1994 andwas intended to remain in force for five years to be replaced by a constitution adopted bya Constitutional Assembly consisting of the National Assembly and Senate of Parliament:see below. See also J. Dugard, Internatzonal Law: A South African Perspect~ve,2nd edn,
Kenwyn, 2000.

I58

I N T E R N A T I O N A L LAW

and signature oftreaties is a function ofthe President (section 82(1)i),rat~
ification is now a function of the Parliament (section 2 3 1 ( 2 ) ) . ' ~Section
231 (3) provides that 'such international agreement shall be binding on
the Republic and shall form part of the law of the Republic, provided Parliament expressly so provides and such agreement is not inconsistent withthis constitution'. Thus South Africa has moved from the British system toa position akin to the civil law tradition. It should also be noted that thisinterim constitution expressly provides that the National Defence Forceshall 'not breach international customary law binding on the Republic
relating to aggression', while in armed conflict, it would 'comply with its
obligations under international customary law and treaties binding on
the Republic' (section 227(2)).lg5
These provisions were considered and refined by the Constitutional
Assembly, which on 8 May 1996 adopted a new c ~ n s t i t u t i o n . Section'~~
23 l(1) of this constitution provides that the negotiating and signing of allinternational agreements is the responsibility of the national executive,
while such an agreement would only bind the Republic after approval byresolution in both the National Assembly and the National Council of~rovinces.'~'Any international agreement becomes domestic law whenenacted into law by national legislation, although a self-executing provision of an agreement that has been approved by Parliament is law in
the Republic unless it is inconsistent with the Constitution or an Act of~ a r 1 i a m e n t . Sectionl~~
232 provides that customary international law is
law in the Republic unless it is inconsistent with the Constitution or an
Act of Parliament, while section 233 stipulates that when interpreting any
legislation, every court must prefer any reasonable interpretation of theInternational Law. Note that this change means that treaties entered into
before the Constitution came into force do not form part of municipal law unless expresslyincorporated by legislation, while those treaties that postdate the new Constitutionmay.
I y 5 Note that article 144 of the Namibian Constitution provides that 'unless otherwise provided by this Constitution or Act of Parliament, the general rules of public internationallaw and international agreements binding upon Namibia under this Constitution shallform part ofthe law ofNamibia': see B. Erasmus, 'The Namibian Constitution and the Application of International Law', 15 South African Yearbook oflnternational Latv, 1989-90,
p. 81.
'96 See 36 ILM, 1997,p. 744.
Section 231(2). This is unless either such an agreement is of a 'technical, administrative
or executive nature' or it is one not requiring ratification (or accession), in which casetabling in the Assembly and the Council within a reasonable time is required: section
231(3).
Sectio11231(4).
194 See Dugard,'"'"

INTERNATIONAL LAW A N D M U N I C I P A L LAW

I59

legislation which is consistent with international law over any alternativeinterpretation that is inconsistent with international law. It is also to beparticularly noted that section 200(2) of the Constitution states that the
primary object of the defence force is to defend and protect the Republic,
its territorial integrity and its people, 'in accordance with the Constitution
and the principles of international law regulating the use of force'.
The Russian Federation adopted a new constitution in 1 9 9 3 . ' ~Un~
der article 86, the President negotiates and signs treaties and signs theratification documents, while under article 106 the Federal Council (theupper chamber of the federal parliament) must consider those federal
laws adopted by the State Duma (the lower chamber) that concern theratification and denunciation of international agreements. The Constitutional Court may review the constitutionality of treaties not yet in force(article 125(2)) and treaties that conflict with the Constitution are not
to be given effect (article 125(6)).Article 15(4) of the new constitution
provides that 'the generally recognised principles and norms of international law and the international treaties of the Russian Federation shallconstitute part of its legal system. If an international treaty of the RussianFederation establishes other rules than those stipulated by the law, therules of the international treaty shall apply.' Thus both treaty law andcustomary law are incorporated into Russian law, while treaty rules havea higher status than domestic laws.'00 The Constitutional Court takes theview that customary international law and international treaties ratified
by Russia are norms incorporated into Russian law.'O1
199 See G. M. Danilenko, 'The New Russian Constitution and International Law', 88 AJIL,

'0°

20'

1994, p. 451 and Danilenko, 'Implementation of International Law in CIS States: Theory
and Practice: 10 EJIL, 1999, p. 51, and V. S. Vereshchetin, 'New Constitutions and the
Old Problem of the Relationship between International Law and National Law', 7 EJIL,
1996, p. 29. See, as regards the practice of the Soviet Union, K. Grzybowski, Soviet Ptlblic
International Law, Leiden, 1970, pp. 30-2.
See also article 5 of the Russian Federal Law on International Treaties adopted on 16
June 1995, 34 ILM, 1995, p. 1370. This repeats article 15(4) of the Constitution and also
provides that 'the provisions of officially published international treaties of the R~~ssianFederation which do not require the publication of intra-state acts for application shall
operate in the Russian Federation directly. Respective legal acts shall be adopted in order
Federation.' Seeto effectuate other provisions of international treaties of the R~~ssianofIndependerlt
further W E. Butler, The Law of Treaties in Russia and the Cornrno~~wealtl~
States, Cambridge, 2002, who notes that the change brought about by article 15(4) 'is
among the most momentous changes of the twentieth century in the development of
Russian Law', at p. 36.
Butler, Law of Treaties in Russia, p. 37. See also generally, Constitutional R~fo1.mand
International Law in Central and Emtern Europe (eds. R. Mullerson, M. Fitzmauriceand M. Andenas), The Hague, 1998; T. Schweisfurth and R. Alleweldt, 'The Positioil

160

I N T E R N A T I O N A L LAW

Under article 7 3 ( 3 )of the Japanese Constitution of 1 9 4 6 , ~ the' ~ Cabinet
has authority to conclude treaties with the prior or subsequent approvalof the Diet, although executive agreements may be entered into without
such approval, usually by simple exchange of notes. Promulgation of atreaty takes place by publication in the Official Gazette under the nameof the Emperor once the Diet has approved and the Cabinet ratified theagreement (article 7). Article 98(2) provides that 'treaties concluded by
Japan and established laws of nations shall be faithfully observed' and thisprovision is taken as incorporating international law, both relevant treaty
and customary law, into Japan's legal system.203Japan has also experienced
some difficulty204in the context of the relative definition of self-governingand non-self-governing treaties.205
This survey of the attitudes adopted by various countries of the common law and civil law traditions leads to a few concluding remarks. The
first of these is that a strict adherence to either the monist or the dualist
position will not suffice. Most countries accept the operation of customary rules within their own jurisdictions, providing there is no conflictwith existing laws, and some will allow international law to prevail overmunicipal provisions. One can regard this as a significant element in extending the principles and protection of international law, whether or not
it is held that the particular provision permitting this, whether by constitutional enactment or by case-law, illustrates the superiority of municipal
law in so acting.
The situation as regards treaties is much more complex, as different
attitudes are maintained by different states. In some countries, certain
treaties will operate internally by themselves (self-executing) while others
must undergo a process of domestic legalisation. There are countries
where legislation is needed for virtually all international agreements:of International Law in the Domestic Legal Orders of Central and Eastern European
Countries: 40 German YIL, 1997, p. 164; I. Ziemele, 'The Application of International
Law in the Baltic States', 40 German YIL, 1997, p. 243 and TI7. Czaplinski, 'International
Law and Polish Municipal Law: 53 ZaoRV, 1993, p. 871.
'02 See generally S. Oda, The Practice of Japan in Interrzational Law 1961-1 970, Leiden, 1982,
andY. Iwasawa, 'The Relationship Between International Law and National Law: JapaneseExperiences: 64 BYIL, 1993, p. 333. See also H. Oda, Japanese Law, 2nd edn, Oxford,
1999, and Y. Iwasawa, International Law, Htnnan Rights, and Japanese Latv - The Impactof Irlterrlational Laiv on Japanese Law, Oxford, 1998.
'03 Iwasawa, 'Relationship: p. 345.
*04 Ibid., pp. 349 ff.
'05 See generally with regard to China, T. Wang, 'International Law in China: 221 HR, 1990,
p. 195.

I N T E R N A T I O N A L LAW A N D M U N I C I P A L LAW

161

for example, ~ e l g i u m . ~It' is~ by no means settled as a general principle whether treaties prevail over domestic rules. Some countries allow
treaties to supersede all municipal laws, whether made earlier or later
than the agreement. Others, such as Norway, adopt the opposite stance.
Where there are written constitutions, an additional complicating factor is introduced and some reasonably stable hierarchy incorporating
ordinary laws, constitutional provisions and international law has to be
maintained. This is particularly so where a federal system is in operation.
It will be up to the individual country to adopt its own list of preference~.~'~
Of course, such diverse attitudes can lead to confusion, but in the lightof the present state of international law, it is inevitable that its enforcement and sphere of activity will become entangled with the ideas andpractices of municipal law. Indeed, it is precisely because of the inadequate enforcement facilities that lie at the disposal ofinternational law that
one must consider the relationship with municipal law as of more thanmarginal importance. This is because the extent to which domestic courts
apply the rules of international law may well determine the effectivenessof international legislation and judicial decision-making.
However, to declare that international legal rules therefore prevail over
all relevant domestic legislation at all times is incorrect in the vast majorityof cases and would be to overlook the real in the face of the ideal. States
jealously guard their prerogatives, and few are more meaningful than theability to legislate free from outside control; and, of course, there aredemocratic implications. The consequent supremacy of municipal legal
systems over international law in the domestic sphere is not exclusive, but
it does exist as an undeniable general principle.
It is pertinent to refer here briefly to the impact of the European
union.'08 The European Court of Justice has held that Community law
'06

'07

See article 68 of the Constitution, which deals basically with treaties of commerce andtreaties which impose obligations on the state or on individuals.
See generally Drzemczewski, Dorrlestic Law, and Peaslee, Constitutions, vol. 111, pp. 76 and689. See also, as regards the Philippines, the decision of the Supreme Court (en banc) in
The Holy See v. Starbright Sales Enterprises Inc. 102 ILR, 17. 163, and, as regards Poland,
W. Czaplinski, 'International Law and Polish M~lnicipalLaw - A Case Study', 8 Hague
Yearbook oflnternational Law, 1995,p. 31.
See e.g. S. IVeatherill and P. Beaumont, EC Law, 3rd edn, London, 1999; L. Collins,
European Community Latv in the United Kingdom, 4th edn, London, 1990, and H. Kovar,'The Relationship between Coinmunity Law and National Law' in Thirty Years of Community Law (Commission of the European Communities), 1981, p. 109. See also above,
p. 142.

162

I N T E R N A T I O N A L LAW

has supremacy over ordinary national law,209and indeed over domestic
constitutional law.210In addition to the treaties creating the E C , ~ "there
is a great deal of secondary legislation issuing forth from its institutions,which can apply to the member states. This takes the form of regulations,decisions or directives. Of these, the first two are directly applicable andenforceable within each of the countries concerned without the need forenabling legislation. While it is true that the legislation for this type ofactivity has been passed - for example section 2(1) of the European Communities Act 1972~"in the UK, which permits in advance this form of
indirect law-making, and is thus assimilated into municipal law - the fact
remains that the member states have accepted an extraterritorial sourceof law, binding in certain circumstances upon them. The effect is thusthat directly effective Community law has precedence over inconsistent
UK legislation. This was confirmed by the House of Lords in Factortame
Ltd v. Secretary of State for f ran sport."^ It was further noted that one of
the consequences of UK entry into the European Communities and theEuropean Communities Act 1972 was that an interim injunction could
be granted, the effect of which would be to suspend the operation of astatute on the grounds that the legislation in question allegedly infringed
Community law. This is one illustration of the major effect which joining the Community has had in terms of the English legal system andpreviously accepted legal principles. The mistake, however, should not
be made of generalising from this specific relationship to the sphere ofinternational law as a whole.
Justiciability, act of state and related doctrines
An issue is justiciable basically if it can be tried according to law.214It
would, therefore, follow that matters that fall within the competence ofthe executive branch of government are not justiciable before the courts.
See Costa v. ENEL, Case 6164 [I9641 ECR 585.
See bltertlationale Handelsgesellschafc v. Einfullr- und l'orratsstelle fiir Getreide und Futtermittel [1970] ECR 1125.
'I1 Including the treaties of Maastricht (1992), Amsterdam (1997) and Nice (2001).
112 See also section 2 (4).
''' See [I9901 2 AC 85, 140 (per Lord Bridge); 93 ILR, p. 652. See also E x p a r t e Factortame( N o . 2) [1991] 1 AC 603; 93 ILR, p. 731; R v. Secretary of State for Transport, e x parte
Factortame, European Court of Justice case C-213189,93 ILR, p. 669 and Case C-221189,
93 ILR, p. 731.
"4 See Mann, Foreign Affairs, chapter 4. See also L. Collins, 'Foreign Relations and theTudiciary', 51 ICLQ, 2002, p. 485.
'09'lo

INTERNATIONAL LAW A N D M U N I C I P A L LAW

I63

Accordingly, the test as to whether a matter is or is not justiciable involves an illumination of that grey area where the spheres of executive
and judiciary merge and overlap. One important aspect of justiciability is the doctrine of act of state. An act of state generally relates to theactivities of the executive in relations with other ~ t a t e s , ~ ' % uint the context of international law and municipal courts it refers particularly to thedoctrine that no state can exercise jurisdiction over anotherAssuch it is based upon the principles of the sovereignty and equality ofstates.217
The concept of non-justiciability applies with regard to both domestic
and foreign executive acts. In the former case,218the courts will refuse to
adjudicate upon an exercise of sovereign power, such as making war andpeace, making international treaties or ceding t e r r i t ~ r ~ . ~ l Qfars as thelatter instance is concerned, Lord Wilberforce declared in Buttes Gas andOil Co, v. Hammer (No. 3)220
there exists in English law a general principle that the courts will not adjudicate upon the transactions of foreign sovereign states.. . i t seems desirable
to consider this principle.. . not as a variety of 'act of state' but one forjudicial restraint or a b ~ t e n t i o n . " ~Such a principle was not one of discretion, but inherent in the nature of
the judicial process. Although that case concerned litigation in the areasof libel and conspiracy, the House of Lords felt that a determination of
the issue would have involved the court in reviewing the transactions offour sovereign states and having to find that part of those transactions
was contrary to international law. Quite apart from the possibility of
See e.g. \\7ade and Phillips, Cotzstitutional and Adtninirtrative Law, pp. 299-303; J. B.
Moore, Acts of State in English Law, New York, 1906; Mann, Foreign Affairs, chapter 9;Singer, 'The Act of State Doctrine of the UK', 75 AIIL, 1981, p. 283; M. Akehurst,'Jurisdiction in International Law', 46 BYIL, 1972-3, pp. 145, 240, and M. Zander, 'The
Act of State Doctrine', 53 AJIL, 1959, p. 826.
'I6 See Lord Pearson, hTissan v. Attorney-General [I9701 AC 179, 239; 44 ILR, pp. 359, 390.
See Oppenheim's International Law, p. 365.
'la See Nissarl v. Attorney-General [I9701 AC 179 and Buron v. Denmarl (1848) 145 ER
450. See also S. de Smith and R. Brazier, Corlstitutional and Administrative Law, 6th edn,
London, 1989, pp. 145-51 and Mann, Foreign ,4fairs, chapter 10.
See also Cotlncil for Civil Service Unions v. Minister for the Civil Scrvice [I9841 3 All ER
935, 956.
220 [I9821 AC 888; 64 ILR, p. 331.
[I9821 AC 888,931; 64 ILR, p. 344. See also Duke ofBrunstvick v. King ofHunover (1848)
1 HLC 1.
"5

"'

164

I N T E R N A T I O N A L LAW

embarrassment to the foreign relations of the executive, there were no
judicial or manageable standards by which to judge such issues.222
It has been held, for example, that judicial review would not be appropriate in a matter which would have serious international repercussions
and which was more properly the sphere of diplomacy.223Although the
Court of Appeal has noted that the keeping and disposal of foreign banknotes for commercial purposes in the UK could not be treated as sovereign
acts so as to bring the activity within the protection of the Buttes nonjusticiability doctrine, the acts in question had to be of a sovereign rather
than of a commercial nature and performed within the territory of aforeign state.224
Legislation can, of course, impinge upon the question as to whether anissue is or is not justiciable, and sovereign, or state, immunity is particularly relevant here, especially as it too is founded upon the principles of thesovereignty and equality of states. The UK State Immunity Act 1978, forexample, removed sovereign immunity for commercial t r a n s a c t i o ~ ~ s . ~ ~ 'One of the questions that the Court ofAppeal addressed in Maclaine Watson v. International Tiiz Council 226 was whether in such circumstances thedoctrine of non-justiciability survived. It was emphasised that the twoconcepts of immunity and non-justiciability had to be kept separate andconcern was expressed that the Buttesnon-justiciability principle could be
used to prevent proceedings being brought against states in commercial
matters, contrary to the A C ~ . ~ ~ 'Non-justiciability acts, in essence, as an evidential bar, since an issue
cannot be raised or proved, whereas the immunity doctrine provides
that the courts cannot exercise jurisdiction with regard to the matter inquestion, although it is open to the state concerned to waive its immunity
and thus remove the jurisdictional bar. Indeed, whereas non-justiciability
in the above sense relates to a clear inter-state relationship or situation
which is impleaded in a seemingly private action, immunity issues willinvariably arise out of a state-private party relationship that will not"' 119821 AC 888,938; 64 ILR, p. 351.
"' See e.g. R v. Secretary of State for Forelgn and C o m m o n ~ ~ e n lAtfnirs,thexparte Pzrbhaz, 107
ILR, p. 462. But see the Abbasz case below, p. 168.

"9
Ltd v. B Batik 111 ILR, pp. 590, 594-6.

'" See EnlpresnExportadora d e A z t l ~ a rv. IndustrtaAzu~nreraNu~zonalS A 1198312 LL. R 171,'26"'

194-5, 64 ILR, p. 368. See furthel below, chapter 13.
119881 3 WLR 1169,80 ILR, p. 191.
[I9881 3 WLR 1169, 1188 per Kerr LJ; 80 ILR, p. 209.

I N T E R N A T I O N A L LAW A N D M U N I C I P A L LAW

165

relate to inter-state activities as
Nevertheless, in practice, it isoften difficult to disentangle the different conceptual threads, although
the end result in terms of the inability of the plaintiff to surmount thesovereign hurdle may often be the same.
The issue of justiciability was discussed in Maclaine Watson v. Departl ~ the~ ~House
ment of Trade and Industryboth by the Court of ~ p p e a and2of lords " in the context of the creation of the collapsed International Tin
Council by a group of states by a treatywhich was unincorporated into English law. Kerr LJ emphasised that the doctrine in this context rested upon
the principles that unincorporated treaties do not form part of the law ofEngland and that such international agreements were not contracts which
the courts could enforce.231However, this did not prevent reference to anunincorporated treaty where it was necessary or convenient, for example
in order to assess the legal nature of the International Tin
Lord Oliver in the House of Lords decision reaffirmed the essence ofthe doctrine of non-justiciability. He noted that it wasaxiomatic that municipal courts have not and cannot have the competence
to adjudicate upon or to enforce the rights arising out of transactions
entered into by independent sovereign states between themselves 011 theplane of international law.233

However, this did not mean that the court must never look at or construe
a treaty. A treaty could be examined as a part of the factual backgroundagainst which a particular issue has arisen.234It was pointed out that thecreation of the Council by a group of states was a sovereign act and thatthe adjudication of the rights and obligations between the member statesof the Council and the Council itself could only be undertaken on theinternational plane.13"n other words, the situation appeared to involve
not only the Buttes form of act of state non-justiciability, but also nonjusticiability on the basis of an unincorporated treaty.
See e.g. Amalgamated Metal Tradlrlg v. Department of Trade and Indmstvy, The Tunes, 21
March 1989, p. 40.
'29 119881 3 WLR 1033; 80 ILR, p. 49.
119891 3 All ER 523; 81 ILR, p. 671.
231 119881 3 WLR 1033, 1075; 80 ILR, pp. 49,86.
[I9881 3 WLR 1033, 1075-6. See also Nourse LJ, zbld, p. 1130, 80 ILR, p. 148.
233 119891 3 All ER 523,544,81 ILR, yp. 671,700.
2 3 4 [I9891 3 All ER 523, 545; 81 ILR, p. 701.
2 z 5 119891 3 All ER 523,559; 81 ILR, p. 722. See also Ralph G~bson
LJ In the Court ofAppeal
judgment, 119881 3 WLR 1033, 1143-4; 80 ILR, pp. 49, 163.
'28

'"

'"

166

I N T E R N A T I O N A L LAW

Hoffmann LJ in Littrell v. USA (No. 2)236pointed out in the context ofa status of forces agreement (providing for the placement of NATO troops
in the UK) that the courts could look at such agreement to ensure that theforeign troops were here by invitation since the conclusion of a treaty was
as much a fact as any other,237but this could not be taken to mean thatthe courts would actually enforce the terms of an unincorporated treaty.
Additionally, it would not be open to the courts to determine whether aforeign sovereign state had broken a treaty.238The basic position is that:'Ordinarily speaking, English courts will not rule upon the true meaningand effect of international instruments which apply only at the level ofinternational law.'239Further, the English courts are likely to decline to seek
to determine an issue where this could be 'damaging to the public interestin the field of international relations, national security or defen~e'.'~'The principle of non-justiciability, which includes but goes beyond theconcept of act of state,24' must exist in an international system founded
23"1995] 1 WLR 82,93.
Similarly, Colman J in Tliestlarid Helicopters Ltd v. Arab Organisation for Industrialisation [I9951 2 IVLR 126, 149, held that reference to the terms of the treaty establishing an international organisation and to the terms of the basic statute of thatorganisation in order to ascertain the governing law of that organisation and its precise
nature did not transgress the boundary between what was justiciable and what was nonjusticiable.
See British Airways Board v. Laker Airways Ltd [I9851 AC 58, 85-6; Ex parte l\folyneaux[I9861 1 IVLR 331; 87 ILR,p. 329 and \VestlandHelicopters Ltd v. Arab Organisation forlndustrialisation [I9951 2 WLR 126, 136. See also ~VinisterforArts Heritizge izrldEnvironment
v. Peko-Wallsend Ltd (1987) 75 ALR218,2504; 90 ILR, pp. 32,51-5, where the A~~stralianFederal Court held that a Cabinet decision involving" Australia's international relationsin implementing a treaty was not a justiciable matter, and Arab Republic of Syria u. Arab
Republic of Egypt 91 ILR, pp. 288, 305-6, where the Supreme Court of Brazil held thatthe courts of a third state could not exercise jurisdiction in a matter essentially of state
succession between two other states even where the property was within the jurisdiction.
"9 CND v. Prime lL4inister of the UK and Others [2002] EWHC 2777 (Admin), paras. 23, 36
and 47. See also R v. Lyons [2002] 3 IVLR 1562.
240 CND v. Prinie ,Minister o f the UK, para. 47, cited with approval by the Irish High Courtin Horgaiz v. An Taoiseach, judgment of 28 April 2003, as emphasising 'the strictly
circumspect role which the courts adopt when called upon to exercise jurisdiction in
relation to the Executive's conduct of international relations generally', transcript at
p. 51.
14' A distinction has recently been drawn between a narrower doctrine of act of state, which
concerns the recognition of acts of a foreign state within its own territory, and a broader
principle of non-justiciability in respect of 'certain sovereign acts' of a foreign state: see
Mance J in Kuwait Airways Corporation r. Iraqi Airtvays Company 116 ILR, pp. 534, 568,
basing himself upon Lord IVilberforce in Buttes Gas and Oil v. Hammer [I9821 AC 888,
930-2; 64 ILR, p. 331. Mance J's analysis was approved by Lord Lloyd in Ex Parte Pinochet(No. 1 ) [2000] 1 AC 61, 102; 119 ILR, pp. 51,91.

'""*

INTERNATIONAL LAW A N D M U N I C I P A L LAW

I67

upon sovereign and formally equal states.242Having said that, there is no
doubt that the extent of the doctrine is open to question. While the courts
would regard a question concerning the constitutionality of a foreign government as non-justiciable243and would not as a general rule inquire into
the validity of acts done in a sovereign capacity, such as the constitutionality of foreign laws,244the latter proposition may be subject to exceptions.
The House of Lords addressed the question in Kuwait Airways Corporation v. Iraqi Airways Company.245Lord Nicholls noted that in appropriate
circumstances it was legitimate for an English court to have regard to thecontent of international law in deciding whether to recognise a foreign law
and it did not flow inevitably from the non-justiciability principle that the
judiciary must ignore a breach ofinternational law committed by one stateagainst another 'where the breach is plain and, indeed, acknowledged'.246
In such cases, the difficulty discussed by Lord Wilberforce in Buttes Gas
and Oil concerning the lack of judicial or manageable standards by which
to deal with a sovereignty dispute between two foreign states did not apply.247The acceptability of a provision of foreign law had to be judged
by contemporary standards and the courts had to give effect to clearly
established rules of international law.248Where foreign legislation was
adopted consequential upon a fundamental breach of international law(such as the Iraqi invasion of Kuwait in 1990 and seizure of its assets),
enforcement or recognition of such law by the courts would be 'manifestly
contrary to the public policy of English law: Further, it was emphasisedthat international law recognised that a national court may decline to giveeffect to legislative and other acts of foreign states whichare in violationof international law.249Lord Steyn noted that the extension of the public
policy exception to recognition of foreign laws from human rights violations to 'flagrant breaches of international law' was correct. Reference was"'See e.g. the decision of the Belgian Conseil d'Etat in T v. Belgit~rnon 9 April 1998 thatthe process of declaring a foreign diplomat persona non grata was not justiciable bothbecause the request from the receiving state was a matter between states and because it
was the sending state that had to recall the person in question or terminate his functions
and the Conseil d'Etat had no jurisdiction over an act emanating from a foreign state:
115 ILR, 17.442.
See e.g. Exparte Turkish Cypriot Association 112 ILR, p. 735.
244 See Buck v. Attorney-General [I9651 1 Ch. 745; 42 ILR, 17. 11.
Decision of 16 May 2002, [2002] UKHL 19.
246 Ibid., para. 26.
247 See above, p. 163.
248 [2002] UKHL 19, para. 28. See also Blathivayt v. Baron Ca~vley[1976] AC 397,426 and
Oppenheimer r.Cattermole [I9761 AC 249,278.
24"2002] UKHL 19, para. 29. See also Oppenheim's International Laiv, pp. 371 ff.

'"
'"

168

I N T E R N A T I O N A L LAW

made to the UN Charter, binding Security Council resolutions and international opinion in general.250Lord Hope emphasised that 'very narrow
limits must be placed on any exception to the act of state rule', but there
was no need for restraint on grounds of public policy 'where it is plain
beyond dispute that a clearly established norm of international law has
been violated'.?" He concluded that 'a legislative act by a foreign state
which is in flagrant breach of clearly established rules of international law
ought not to be recognised by the courts of this country as forming partof the lex situs of that ~tate'."~
The courts may also not feel constrained in expressing their views
as to foreign sovereign activities where a breach of international law,particularly human rights, is involved2j3 and may not feel constrained
from investigating, in a dispute involving private rights, the legal validityof an act done by a citizen purporting to act on behalf of the sovereign orsovereign state.254It is clear that the courts will regard as non-justiciable
policy decisions by the government concerning relationships with friendly
foreign states, on the basis that foreign policy is pre-eminently an area forthe government and not the courts.255In particular, a number of cases
have laid down the proposition that decisions taken by the executive inits dealings with foreign states regarding the protection of British citizens
abroad are non-j~sticiable.~'~This approach, however, is subject to some qualification.257This concerns in particular the evolvinglaw ofjudicial review258both with regard toits scope concerning the executive and in terms of 'legitimate expectation',or a reasonable expectation that a regular practice will continue. Where
diplomatic protection of a national abroad is concerned, the Court of'" [2002] UKHL 19, para. 114. '" Ibid., paras. 1 3 8 4 0 .
Ibid., para. 148. See also Lord Scott, ibid., para. 192.
'" See e.g. Abbasi v. Secretary of State for Foreign and Cornttlonwealtk A-fairs [2002] EWCA
Civ. 1598, paras. 57 and 66 (per Lord Phillips MR).
'" See e.g. Dtrbai Bank v. Galadari, The Tirnes, 14 J~lly1990.
'j2

See Ex parte Everett [I9891 1 QB 81 1; 84 ILR, 1). 713; Ex parte Ferhut Butt 116 ILR, pp.
607,620-1 and Foday Saybatla Sankoh 119 ILR, pp. 389,396.
See e.g. Council for Civil Service Unions v. ministerf for the Civil Service [I9851 1 AC 374,411 (per Lord Diplock); Ex parte Pirbhai 107 ILR, pp. 462,479; Ex parte Ferhtrt Butt 116
ILR, 1711. 607, 615 and 622 and R (Suresh and Manickavasagarn) v. Secretary of State for
the HomeDepartrnent [2001] EWHC Admin 1028, para. 19.
See Lord Phillips MR in Abbasi v. Secretary of State for Foreign and Commonwealtlz Affairs[2002] EMCA Civ. 1598, paras. 80 ff.
'j8 See e.g. S. A. De Smith, H. Woolf and J. Jowell, Judicial Review, 5th edn, London, 1998,
p p 419 ff.
'j5"'

INTERNATIONAL LAW A N D M U N I C I P A L LAW

I69

Appeal has noted that 'The Secretary of State must be free to give fullweight to foreign policy considerations, which are not justiciable. However, this does not mean the whole process is immune from judicial
scrutiny. The citizen's legitimate expectation is that his request will be"considered", and that in that consideration all relevant factors will bethrown into the balan~e.'~"'The Court concluded that judicial review
would lie where the Foreign and Commonwealth Office, contrary to its
stated policy, refused even to consider whether to make diplomatic representations on behalf of a subject whose fundamental rights were being
violated. However, beyond this, no general proposition could be stated,being dependent upon the precise circumstance^.^^^ Australian courts also
have emphasised the importance of separation of powers and the need forcourts to exercise considerable caution with regard to foreign policy.261
The US courts have similarly recognised the existence of areas of nonjusticiability for sensitive political reasons. This is usually referred to as
the political question doctrine and operates to prevent the courts fromconsidering issues of political delicacy in the field of foreign affairs.262
In the Greenham Women against Cruise Missiles v. Reagan ca~e,~~"or
example, the Court held that a suit to prevent the US deployment of
cruise missiles at an air force base in the UK constituted a non-justiciable~~
ispolitical question, not appropriate for judicial r e s ~ l u t i o n . 'Similarly,
sues relating to rights of succession to the assets of a foreign state were
Per Lord Phillips MR in Abassi v. Secretary of State for Foreign and Corr~vnonwealthAffairs[2002] EL\'CA Civ. 1598, para. 99.
260 Ibid., paras. 104-7.
in Thorpe v. Comrnonwealtll ofAustralia
See the decision of the High Court of A~~stralia(No. 3 ) (1997) 144 ALR 677, 690-1; 118 ILR, p. 353. See also Re Ditfort (1988) 19 FCR
347, 369; 87 ILR, p. 170, and G. Lindell, 'The Justiciability of Political Questions: Recent
Developments' in Australian Constitutional Perspectives (eds. H. P. Lee and G. \$'interton),
Sydney, 1992, p. 180.
'62 See e.g. Underhill v. Hernandez 168 US 250 (1897), Baker v. Carr 369 US 181 (1962)
and American Iv~strranceAssociation v. Garanlendi, US Court of Appeals for the Ninth
Circuit, 23 June 2003. See also Henkin et al., International Law Cases and Materials,
p. 178; L. Henkin, 'Is There a "Political Question" Doctrine?', 85 Yale Law Journal, 1976,
p. 597; 1. Charney, 'rudicial Deference in Foreign Relations', 83 ArIL, 1989, 17. 805, andT. M. Franck, Political Questions/Judicial Answers: Does the Rule of Law Apply to Foreign
Affairs?, Princeton, 1992.
263 591 F.Supp. 1332 (1984); 99 ILR, p. 44.
264 But see Japan WhalingAssociation v. American Cetacean Society478 US 221 (1986),~vhere
the Supreme Court held that the judicial interpretation of a US statute, even if it iilvolved
foreign relations, was not a political question precluding justiciability. See also Dellurns v.
Bush 752 F.Supp. 1141 (1990).
2'9

170

I N T E R N A T I O N A L LAW

non-j~sticiable,~"Much will depend upon the particular circumstancesof the case. In Linder v. ~ o r t o c a r r e r ofor
, ~ ~instance,~
concerning the murder of a US citizen working for the Nicaraguan government by rebel
forces (the Contras), the US Court of Appeals for the Eleventh Circuit
held that the political question doctrine was not implicated since thecomplaint neither challenged the legitimacy of US policy on Nicaragua
nor sought to require the Court to decide who was right and who waswrong in the civil war in that country. The complaint was rather narrowly focused on the lawfulness of the conduct of the defendants in asingle incident. In Koohi v. United
the US Court of Appeals for
the Ninth Circuit held that the courts were not precluded from reviewing military decisions, whether taken during war or peacetime, whichcaused injury to US or enemy civilians. As the Court noted in Buker v.
~ u r r , ~not" every case touching foreign relations is non-justiciable and,as the Court ofAppeals underlined in KudiC v. ~ u r u d . 2 i C'judges, ~ ~ ~ should
not reflexively invoke these doctrines [political question and act of state
doctrines] to avoid difficult and somewhat sensitive decisions in the context of human rights: The fact that judicially discoverable and manageable standards exist would indicate that the issues involved were indeed
ju~ticiable.~"Also relevant in the context of non-justiciability is the doctrine of act ofstate. The Third US Restatement ofForeign Relations ~ a w ~provides'lthat'in the absence of a treaty or other unambiguous agreements regarding
controlling legal principles, courts in the United States will generally refrain from examining the validity of a taking by a foreign state of property
within its own territory, or from sitting in judgment on other acts of agovernmental character done by a foreign state within its own territory
and applicable there'.272
In Banco Nucional de Cuba v. S ~ b b a t i n o the, ~ ~US~ Supreme Court
held that the act of state concept was not a rule of public international

States 14 F.3d 160 (1994); 107 ILR, p. 255.
963 F.2d 332,337 (1992); 99 ILR, pp. 54, 79.
976 F.2d 1328, 1331-2 (1992); 99 ILR, pp. 80,84-5.
369 US 186,211 (1962).
269 1995 US App. LEXIS 28826.
270 See e.g. Klir~glzofferv. SNCAclzille Lauro 937 F.2d 44 (1991); Nixon v. United States 122
L.Ed.2d 1 (1993) and Can v. United States 14 F.3d 160(1994).
271 1987, para. 443, pp. 366-7.
This doctrine is subject to modification by act of Congress, ibid., para. 444.
27' 376 US 398 (1964); 35 ILR, p. 2.
265 See e.g. Can and Others v. L'nited

266

"'

"'

INTERNATIONAL LAW A N D M U N I C I P A L LAW

171

law, but related instead to internal constitutional balances.274It was arule of judicial self-restraint. The Court declared that the judicial branchwould not examine the validity of a taking of property within its own
territory by a foreign sovereign g~vernment,~~"rrespectiveof the legality in international law of that action.276This basic approach was supported in a subsequent case,277whereas in Alfred Dunhill ofLondon Inc, v.
Republic of C ~ b u ~the~ 'Supreme Court employed sovereign immunity
concepts as the reason for not recognising the repudiation of the commercial obligations of a state instrumentality as an act of state. However,
it now appears that there is an exception to the strict act of state doctrine
where a relevant treaty provision between the parties specifies the standard of compensation to be payable and thus provides 'controlling legal
principles'.279
In an important case in 1990, the Supreme Court examined anew theextent ofthe act ofstate doctrine. Kirkputrick v. Environmental Tectonics280
concerned a claim brought by an unsuccessful bidder on a Nigerian government contract in circumstances where the successful rival had bribed
Nigerian officials. The Court unanimously held that the act of state doctrine did not apply since the validity of a foreign sovereign act was not
at issue. The Court also made the point that act of state issues only arosewhen a court 'must decide - that is, when the outcome of the case turns

376 US 398, 427-8 (1964); 35 ILR, p. 37. In United States v. Noriega 746 F.Supp. 1506,
1521-3 (1990); 99 ILR, pp. 143, 163-5, the US District Court noted that the act of state
doctrine was a function of the separation of powers, since it precluded judicial examination of the acts of foreign governments which might otherwise hinder the executive's
conduct of foreign relations.
'75 376 US 398 (1964); 35 ILR, p. 2.
' 7 6 This approach was reversed by Congress in the Hickenlooper Amendment to the Foreign
Assistance Act of 1964, Pub. L No. 86-663, para. 301(d)(4), 78 Stat. 1013 (1964), 79
Stat. 653, 659, as amended 22 USC, para. 23470(e)(2),(1982). Note that in Williafrls 4
Huinbert Ltd v. W 6 H Trade 12.larks(Jersey) Ltd [I9861 1 All ER 129; 75 ILR, p. 312,
the House of Lords held that an English court would recognise a foreign law effecting
compulsory acquisition and any change of title to property which came under the controlof the foreign state as a result and would accept and enforce the consequences of thatcompulsory acquisition without considering its merits.
277 First National City Bank v. Banco Nacional de Cuba 406 US 759 (1972); 66 ILR, p. 102.
27S 96 S. Ct. 1854 (1976); 66 ILR, p. 212. See also M. Halberstam, 'Sabbatino Resurrected:
79 AJIL, 1985, p. 68.
27' See Kulamazoo SpiceExtraction Co. v. Provisional Military Government ofSocialist Ethiopia
729 F.2d 422 (1984). See also AIG v. Iran 493 F.Supp. 522 (1980) and Justice Harlan in
the Sabbutino case, 376 US 398,428 (1964); 35 ILR, pp. 25,37.
110 S. Ct. 701 (1990); 88 ILR, p. 93.
'74

172

I N T E R N A T I O N A L LAW

upon - the effect of official action by a foreign sovereign'.281While thedoctrine clearly meant that a US court had to accept that the acts of foreign
sovereigns taken within their jurisdictions were to be deemed valid, thisdid not extend to cases and controversies that might embarrass foreign
governments in situations falling outside this. Act of state was not to beextended.282
Executive certificates
There is an established practice adopted by the British courts of applying
to the executive branch of government for the conclusive ascertainmentof certain facts. Examples include the status of a foreign state or government, questions as to whether a state of war is in operation as regards aparticular country or as between two foreign states, and whether or nota particular person is entitled to diplomatic status. This means that insuch matters of state the courts will consult the government and regard
the executive certificate (or Foreign Office certificate as it is sometimes
called), which is issued following the request, as conclusive, irrespective of
any relevant rules of international law.283This was firmly acknowledgedin DuffDevelopment Co. Ltd v. elant tan,^^^ which concerned the statusof the state of Kelantan in the Malay Peninsula and whether it was able toclaim immunity in the English courts. The government declared that it
was regarded as an independent state and the House of Lords noted that'where such a statement is forthcoming, no other evidence is admissibleor needed: and that:
it was not the business of the Court to inquire whether the Colonial Officerightly concluded that the Sultan [of Kelantan] was entitled t o be recognised
as a sovereign by international law.28""' 110 S.Ct. 701, 705 (1990).
"'See also Third US Restatement ufForeigi1 Relatioils Lau: pp. 366-89; Bandes v. Harlow eb
Jones 82 AJIL, 1988, p. 820, where the Court of Appeals held that the act of state doctrine
mias inapplicable to takings by a foreign state of property located outside its territory, andFirst American Corp. v. Al-Nahyan 948 F.Supp. 1107 (1996).
18' See e.g. Oppenheinl's Irlternational Law, pp. 1046 ff.
2S4 [I9241 AC 797; 2 AD, p. 124. See also The Fagernes [I9271 P. 311; 3 AD, 17. 126 and Post
Office v. Estuary Radio Ltd [I9681 2 QB 740; 43 ILR, p. 114. But cf. Hesperides Hotels v.
Aegean Turkish Holidays [I9781 1 All ER 277; 73 ILR p. 9.
Note that under s. 7, Diplomatic Privileges Act 1964 and s. 21, State Immunity Act 1978,
such certificates are 'conclusive evidence' as to issues of diplomatic and state immunity.
See also s. 8, International Organisations Act 1968, and see further below, chapter 13.

INTERNATIONAL LAW A N D M U N I C I P A L LAW

I73

This basic position was reaffirmed in R v. Secretary of State for Foreign
and Commonwealth Affairs, exparte T r a ~ n i kin, ~which~ ~ it was held thatcertificates under section 40(3) of the Crown Proceedings Act 1947 andsection 21 of the State Immunity Act 1978 were reviewable in the courts
only if they constituted a nullity in that they were not genuine certificatesor if, on their face, they had been issued outside the scope of the relevant
statutory power. The contents of such certificates were conclusive of thematters contained therein and, in so far as they related to recognition offoreign states, were matters within the realm of the royal prerogative andnot subject to judicial review.
Problems have arisen in the context of the decision of the UK announced in 1980 not to accord recognition to governments, but rather totreat the question of an unconstitutional change of regimes as one relating to diplomatic relation^.^" In Republic of Somalia v. Woodhouse Drakeand Carey (Suisse) S A , the~ ~court~ was faced with a confused situation
concerning whether the interim government of Somalia was actually ineffective control and the extent to which other factions controlled different areas of the country. The court noted that in reaching its decision as towhether the interim government was or was not the valid successor to theformer legitimate government in the light of the degree of actual control
exercised over the country, letters from the Foreign and Commonwealth
Office became part of the evidence in the case. In so far as the three letters concerned statements as to what was happening in the country, 'such
letters may not be the best evidence', but in so far as they dealt with thequestion as to whether and to what extent the UK government had dealings with the foreign government, such letters 'will almost certainly be
the best and only conclusive evidence of that fact'.28y
The United States State Department similarly offers 'suggestions' on
such matters, although they tend to be more extensive than their British
counterparts, and include comments upon the issues and occasionally theviews of the executive.290
T h e Times, 18 April 1985, p. 4 . See also C. Il'arbrick, 'Executive Certificates in Foreign
Affairs: Prospects for Review and Control: 35 ICLQ, 1986, p. 138, and E. Wilmshurst,'Executive Certificates in Foreign Affairs: The United Kingdom: 35 ICLQ, 1986,p. 157.
See further below, chapter 8 , p. 401.
2SS [I9931 Q B 54,64-8; 94 ILR, pp. 608,618-23.
[I9931 QB 54, 65; 94 ILR,pp. 608, 619. See also Sierra Leone T~~ecorr~rnnr~icutior~s
Co. Ltd
v. Barclays Bunk [I9981 2 All ER 821; 114 ILR, p. 466.
2"
O'Connell, International Law,pp. 119-22. See T h e Pitaro255 US 216 ( 1 9 2 1 ) ;Anderson v.
NV Trunxandine Handelmaatschappij 289 NY 9 ( 1 9 4 2 ) ;10 AD, p. 10; ,Mexico r.Hoffman
324 US 30 ( 1 9 4 5 ) ; 12 AD, p. 143 and the Navemar303 US 68 ( 1 9 3 8 ) ;9 AD, p. 176.
286

"'

I74

I N T E R N A T I O N A L LAW

Suggestions for further reading
A. Cassese, 'Modern Constitutions and International Law', 192 HR, 1985 111, p. 335
D. Feldman, 'Monism, Dualism and Constitutional Legitimacy', 20 Australian YIL,
1999, y . 105
J. J. Paust, International Law as Law of the United States, Durham, N C , 1996
I. Shearer, 'The Internationalisation ofAustralian Law', 17 Sydney Law Review, 1995,
p. 121
C. Warbriclz, 'Treaties', 49 ICLQ, 2000, p. 944.

The subjects of international law

Legal personality - introduction

In any legal system, certain entities, whether they be individuals or companies, will be regarded as possessing rights and duties enforceable at law.'
Thus an individual may prosecute or be prosecuted for assault and a company can sue for breach of contract. They are able to do this because thelaw recognises them as 'legal persons' possessing the capacity to have andto maintain certain rights, and being subject to perform specific duties.
Just which persons will be entitled to what rights in what circumstances
will depend upon the scope and character of the law. But it is the function of the law to apportion such rights and duties to such entities as itsees fit. Legal personality is crucial. Without it institutions and groups
cannot operate, for they need to be able to maintain and enforce claims.
In municipal law individuals, limited companies and public corporations
are recognised as each possessing a distinct legal personality, the terms ofwhich are circumscribed by the relevant legislation.2 It is the law which'

See e.g. I. Brownlie, Principles ofPt~blicIr~ternational
Laiv, 5th edn, Oxford, 1998, part 11; J.
Crawford, The Creation of Statehood in Interilational Law, Oxford, 1979; D. P. O'Connell,
International Latv, 2nd edn, London, 1970, vol. I; J. bt'. Verzijl, International Latv in Historical
Perspective, Leiden, 1969, vol. 11; 0 . Lissitz~m,'Territorial Entities other than Independent
States in the Law of Treaties', 125 HR, 1968, p. 5; Berezowski, in Mklanges Oferts a Juraj
Andrassy (ed. Ibler), 1968, p. 31; H. Lauterpacht, Intertzational Law: Collected Papers, Cambridge, 1975, vol. 11, p. 487; C. Rousseau, Droit Iilterilational Public, Paris, 1974, vol. 11;
N. Mugerwa, 'Subjects of International Law' in manual of Public ltztertzational Law (ed.
M. Sarensen), London, 1968, p. 247; G. Schwarzenberger, International Latv, 3rd edn,
London, 1957, vol. I, p. 89; A. Cassese, bzternational Laiv in a Divided World, Oxford, 1986,
chapter 4, and Cassese, blternational Law), Oxford, 2001, chapters 3 and 4; International
Laiu: Ackievettzents andProspects (ed. M. Bedjaoui), Paris, 1991, part 1, title 1; Oppenheinz'sInternational La1.l~(eds. R.Y. Jenninps and A. D. Slratts),9th edn, London, 1992, chapter 2; R.
Higgins, Problems and Process, Oxford, 1994, chapter 3; L. Henkin, R. Pugh, 0.Schachterand H. Smit, International Law Cases and ~Materiuls,3rd edn, St Paul, 1993, chapters 4
and 5, and S. Rosenne, 'The Perplexities of Modern International Law', 291 HR, 2001,
chapter VII.
R. Dias, Jurisprudence, 5th edn, London, 1985, chapter 12.

176

I N T E R N A T I O N A L LAW

will determine the scope and nature of personality. Personality involves
the examination of certain concepts within the law such as status, capacity, competence, as well as the nature and extent of particular rights
and duties. The status of a particular entity may well be determinativeof certain powers and obligations, while capacity will link together the
status of a person with particular rights and duties. The whole process
operates within the confines of the relevant legal system, which circumscribes personality, its nature and definition. This is especially true ininternational law. A particular view adopted of the system will invariablyreflect upon the question of the identity and nature of international legal

person^.^Personality in international law necessitates the consideration of theinterrelationship between rights and duties afforded under the international system and capacity to enforce claims. One needs to have close
regard to the rules of international law in order to determine the precise nature of the capacity of the entity in question. Certain preliminary
issues need to be faced. Does the personality of a particular claimant,for instance, depend upon its possession of the capacity to enforce rights?
Indeed, is there any test of the nature of enforcement, or can even the mostrestrictive form of operation on the international scene be sufficient? One
view suggests, for example, that while the quality of responsibility for
violation of a rule usually co-exists with the quality of being able to enforce a complaint against a breach in any legal person, it would be useful toconsider those possessing one of these qualities as indeed having juridical
personality.4 Other writers, on the other hand, emphasise the crucial role
played by the element of enforceability of rights within the international
system.'However, a range of factors needs to be carefully examined before it canbe determined whether an entity has international personality and, if so,
what rights, duties and competences apply in the particular case. Personality is a relative phenomenon varying with the circumstances. One of the
distinguishing characteristics of contemporary international law has been
the wide range of participants. These include states, international organisations, regional organisations, non-government organisations, publiccompanies, private companies and individuals. Not all such entities willSee, for example, the Soviet view: G. I. Tunkin, Theory oflnternational Law, London, 1974.
"ee e.g. M. S~rensen,'Principes de Droit International Public: 101 HR, 1960, pp. 5, 127.
For a wider definition, see H. Mosler, The International Society as a Legal Community,
Dordrecht, 1980, p. 32.
See e.g. Verzijl, International Law, p. 3.

T H E S U B I E C T S OF INTERNATIONAL LAW

I77

constitute legal persons, although they may act with some degree of influence upon the international plane. International personality is participation plus some form of community acceptance. The latter element will bedependent upon many different factors, including the type of personality
under question. It may be manifested in many forms and may in certain cases be inferred from practice. It will also reflect a need. Particularbranches of international law here are playing a crucial role. Human rights
law, the law relating to armed conflicts and international economic law are
specially important in generating and reflecting increased participationand personality in international law.
StatesAs Lauterpacht observes: 'the orthodox positivist doctrine has been explicit in the affirmation that only states are subjects of international law'.6
However, it is less clear that in practice this position was maintained. The
Holy See (particularly from 1871 to 1929), insurgents and belligerents,
international organisations, chartered companies and various territorial
entities such as the League of Cities were all at one time or another treatedas possessing the capacity to become international persons.'

Creation of statehood
The relationship in this area between factual and legal criteria is a crucial
shifting one. Whether the birth of a new state is primarily a question offact or law and how the interaction between the criteria of effectivenessand other relevant legal principles may be reconciled are questions of considerable complexity and significance. Since terrae nullius are no longer
Lauterpacht, International Law, p. 489.

' See Verzijl, International Law, pp. 17-43, and Lauterpacht, International Law, pp. 494-500.
See also the \Vestern Sahara case, ICJ Reports, 1975, pp. 12, 39; 59 ILR, pp. 30, 56, andSur~leyofInternationa1 Law in Relation to the Work of Codification of the International Law
Corrzrnission,Memorandum of the Secretary-General, 1949, AICN.4IlIRev.1, p. 24.
See in particular Crawford, Creation of Statehood; R. Higgins, The Development of International Law through tlze Political Organs of tlze United Nations, Oxford, 1963, pp. 11-57;
K. Marek, Identity arid Continuity of States in Pnblic International Law, 2nd edn, Leiden,
1968; M. Whiteman, Digest of Irlternational Law, IVashington, 1963, vol. I, pp. 221-33,
283-476, and Nguyen Quoc Dinh, P. Daillier and A. Pellet, Droit International Public,
7th edn, Paris, 2002, p. 407. See also Societe Franqaise pour le Droit International, L'Etat
Souverain, Paris, 1994, and L. Henkin, International Law: Politics and Values, Dordrecht,
1995, chapter 1.

178

I N T E R N A T I O N A L LAW

a ~ p a r e n t the, ~ creation of new states in the future, once the decolonisation process is at an end, can only be accomplished as a result of thediminution or disappearance of existing states, and the need for careful
regulation thus arises. Recent events such as the break-up of the Soviet
Union, the Socialist Federal Republic of Yugoslavia and Czechoslovakia
underline this. In addition, the decolonisation movement has stimulated
a re-examination of the traditional criteria. Article 1 of the Montevideo
Convention on Rights and Duties of States, 1933" lays down the mostwidely accepted formulation of the criteria of statehood in internationallaw. It notes that the state as an international person should possess the following qualifications: '(a) a permanent population; (b) a defined territory;(c) government; and (d) capacity to enter into relations with other states'.
The Arbitration Commission of the European Conference on
Yugoslavia1' in Opinion No. 1 declared that 'the state is commonly defined
as a community which consists of a territory and a population subject toan organised political authority' and that 'such a state is characterised bysovereignty'. It was also noted that the form of internal political organisation and constitutional provisions constituted 'mere facts', although
it was necessary to take them into account in order to determine thegovernment's sway over the population and the territory.12
Such provisions are neither exhaustive nor immutable. As will be seen
below, ;ther factors may be relevant, including self-determination andrecognition, while the relative weight given to such criteria in particularsituations may very well vary. What is clear, however, is that the relevant
framework revolv;s essentially around territorial effectiveness.
The existence of a permanent population13 is naturally required andthere is no specification of a minimum number ofinhabitants, as examples
See, as regards Antarctica, O'Connell, International Law, p. 451. See also below, p. 424.

'' 165 LNTS 19. International law does not require the structure of a state to follow any
particular pattern: Western Sahara case, ICJ Reports, 1975, pp. 12, 43-4; 59 ILR, pp. 30,
60-1.
" Established pursuant to the Declaration of 27 A ~ ~ g u1991
s t of the European Community:
see Bull. EC, 718 (1991). See generally, M. Craven, 'The EC Arbitration Commission on
figoslavia', 65 BYIL, 1994, p. 333, and below, p. 180.
92 ILR, pp. 162, 165. Note that Oppenlzeim's International Latv, p. 120, provides that 'astate proper is in existence when a people is settled in a territory under its ow11 sovereign
government'.
A iloinadic population inight not thus count for the purposes of territorial sovereignty,
although the Interllatiollal Court in the Western Sahara case, ICJ Reports, 1975, pp. 12,
63-5; 59 ILR, pp. 30, 80-2, held that nomadic peoples did have certain rights with regard
to the land they traversed.

''

T H E S U B I E C T S OF INTERNATIONAL LAW

I79

such as Nauru andTuvalu14demonstrate. However, one of the issues raisedby the Falkland Islands conflict does relate to the question of an acceptable
minimum with regard to self-determination issues,15 and it may be thatthe matter needs further clarification as there exists a number of small
islands awaiting de~olonisation.'~
The need for a defined territory focuses upon the requirement for aparticular territorial base upon which to operate. However, there is nonecessity in international law for defined and settled boundaries. A state
may be recognised as a legal person even though it is involved in a disputewith its neighbours as to the precise demarcation of its frontiers, so longas there is a consistent band of territory which is undeniably controlled by
the government of the alleged state. For this reason at least, therefore, the'State of Palestine' declared in November 1988 at a conference in Algierscannot be regarded as a valid state. The Palestinian organisations didnot
control any part of the territory they claim.I7
Albania prior to the First World War was recognised by many countries
even though its borders were in dispute.18 More recently, Israel has been
accepted by the majority of nations as well as the United Nations as avalid state despite the fact that its frontiers have not been finally settled
and despite its involvement in hostilities with its Arab neighbours over its
existence and territorial delineation." What matters is the presence of al 4 Populations of some 12,000 and 10,000 respectively: see Whitaker's Almanack, London,

2003, pp. 1010 and 1089.
l5 See below, p. 225.

But see, as regards artificial islands, United Statesv. Ray51 ILR, p. 225; Chierici andRosav.
Ministry of the l\4erchaf~t fitly and Harbour Ofice of Rimini 71 ILR, p. 283, and Re Duchyof Sealand 80 ILR, p. 683.
l 7 See Keesing's Record of Miorld Events, p. 36438 (1989). See also General Assembly resolution 43177; R. Lapidoth and K. Calvo-Goller, 'Les Elements Constitutifs de 1'Etat et la
Dkclaration du Conseil National Palestinien du 15 Novembre 1988: AFDI, 1992, p. 777;
J. Crawford, 'The Creation of the State of Palestine: Too Much Too Soon?', 1 EJIL, 1990,
p. 307, and Crawford, 'Israel (1948-1949) and Palestine (1998-1999): TWOStudies in
the Creation of States' in The Reality of Ir~ternationalLaw (eds. G. Goodwin-Gill and221, with regard to the evolution of
S. Talmon), Oxford, 1999, p. 95. See below, Y,I
Palestinian autonomy in the light of the Israel-Palestine Liberation Organisation (PLO)
Declaration on Principles.
l a See e.g. the North Sea Continental Shelfcases, ICI Reports, 1969, pp. 3, 32.
lY~rownlie,Principles, p. 71. In fact most of the new states emerging after the First World
War were recognised de facto or de jure before their frontiers were determined by treaty:
H. Lauterpacht, Recognition in International Law, Cambridge, 1948, p. 30. See Lle~~tsche
Continental Gas-Gesellschaftv. Polish State (1929), 5 AD, pp. 11, 15; the ~MosulBoundarycase, PCIJ, Series B, No. 12, p. 21, and the North Sea Continental Shelfcases, ICJ Reports,
1969, pp. 3,32; 41 ILR, pp. 29, 62. See also Jessup speaking on behalf of the US regarding
l6

180

I N T E R N A T I O N A L LAW

stable community within a certain area, even though its frontiers may beuncertain. Indeed, it is possible for the territory of the state to be split into
distinct parts, for example Pakistan prior to the Bangladesh secession of1971.
For a political society to function reasonably effectively it needs someform of government or central control. However, this is not a precondition for recognition as an independent country.20 It should be
regarded more as an indication of some sort of coherent politicalstructure and society, than the necessity for a sophisticated apparatus of executive and legislative organs.21The requirement relates to thenineteenth-century concern with 'civilisation' as an essential of independent statehood and ignores the modern tendency to regard sovereignty for
non-independent peoples as the paramount consideration, irrespective of
administrative condition^.^^As an example of the former tendency one may note the Aaland Islands
case of 1920. The report of the International Committee of Jurists appointed to investigate the status of the islands remarked, with regard to
the establishment ofthe Finnish Republic in the disordered days following
the Russian revolution, that it was extremely difficult to name the datethat Finland became a sovereign state. It was noted that:[tlhis certainly did not take place until a stable political organisation had
been created, and until the public authorities had become strong enought o assert themselves throughout the territories of the state without theassistance of the foreign

Recent practice with regard to the new states of Croatia and Bosnia
and Herzegovina emerging out of the former Yugoslavia suggests themodification of the criterion of effective exercise of control by a government throughout its territory. Both Croatia and Bosnia and Herzegovina
were recognised as independent states by European Community member
Israel's admission to the UN, SCOR, 3rd year, 383rd meeting, p. 41. The Minister of Stateof the Foreign and Commonu~ealthOffice in a statement on 5 February 1991, UKMIL, 62
BYIL, 1991, p. 557, noted that the UK 'recognises many states whose borders are not fully
agreed with their neighbours'.
See e.g. the Congo case, Higgins, Development, pp. 162-4, and C. Hoskyns, The Congo Since
Independence, Oxford, 1965. See also Higgins, Probleirts and Process, 17. 40, and Nguyen
Quoc Dinh et al., Droit Iiiternatioftal Ptlblic, pp. 415 ff.
See the Western Sahara case, ICJ Reports, 1975, pp. 12,43-4; 59 ILR, pp. 30,60-1.
22 See below, p. 225, on the right to self-determination.
'3 LNOJ Sp. Supp. No. 4 (1920), pp. 8-9. But cf. the view ofthe Commission of Rapporteursin this case, LN Co~ulcilDoc. B7 211681106 (1921), p. 22.

"

T H E S U B I E C T S OF INTERNATIONAL LAW

181

states24and admitted to membership of the United Nations (which is limited to 'states' by article 4 ofthe UN ~ h a r t e rat~a~time) ~when~ both states
were faced with a situation where non-governmental forces controlled
substantial areas of the territories in question in civil war conditions.
The capacity to enter into relations with other states is an aspect of
the existence of the entity in question as well as an indication of theimportance attached to recognition by other countries. It is a capacity notlimited to sovereign nations, since both international organisations andnon-independent states can enter into legal relations with other entities
under the rules of international law. But it is essential for a sovereign state
to be able to create such legal relations with other units as it sees fit. Where
this is not present, the entity cannot be an independent state. The concern
here is not with political pressure by one country over another, but rather
the lack of competence to enter into legal relations. The difference is thepresence or absence of legal capacity, not the degree of influence that may
affect decisions.
The essence of such capacity is independence. This is crucial to statehood and amounts to a conclusion of law in the light of particular circumstances. It is a formal statement that the state is subject to no othersovereignty and is unaffected either by factual dependence upon otherstates or by submission to the rules of international laws2' It is arguablethat a degree of actual as well as formal independence may also be necessary. This question was raised in relation to the grant of independence bySouth Africa to its Bantustans. In the case of the Transkei, for example,
15 January 1992 and 6 April 1992 respectively: see Keesing's Record of T47orld Events,
1992, pp. 38703,38704 and 38833. But see theYugoslavArbitration Commission's Opinion
No. 5 of 11 January 1992 noting that Croatia had not met the requirements laid downin the Draft Convention on Yugoslavia of 4 November 1991 and in the Declaration on
Yugoslavia and Guidelines on the Recognition of New States in Eastern Europe and in
the Soviet Union of 16 December 1991: see 92 ILR, p. 178. Opinion No. 4 expressed
reservations concerning the independence of Bosnia andHerzegovina pending the holdingof a referendum, A referendum showing a majority for independence, however, was held
prior to recognition by the EC member states and admission by the UN, ibid., p. 173. See
also below, p. 383.
" See e.g. 17. Gowlland-Debbas, 'Collective Responses to the Unilateral Declarations of Independence of Southern Rhodesia and Palestine: 61 BYIL, 1990, p. 135.
26 On 22 May 1992. See M. Weller, 'The International Response to the Dissolution of theSocialist Federal Republic of Yugoslavia', 86 ATIL, 1992, p, 569.
27 See Austro-German C~lstomsUnion case, (1931) PCIJ, Series AIB, No. 41, pp. 41 (Court's
Opinion) and 57-8 (Separate Opinion of Tudge Anzilotti); 6 AD, pp. 26, 28. See also
Marek, Identity, pp. 166-80; Crawford, Creation of Statehood, pp. 48-52, and Rousseau,
Droit International Public, vol. 11, pp. 53, 93.
24 On

182

I N T E R N A T I O N A L LAW

a considerable proportion, perhaps 90 per cent, of its budget at one time
was contributed by South Africa, while Bophuthatswana was split into
a series of areas divided by South African territory.28Both the Organisation of African Unity and the United Nations declared such 'independence' invalid and called upon all states not to recognise the newentities. These entities were, apart from South Africa, totally unrecogn i ~ e d However,.~~many states are as dependent upon aid from otherstates, and economic success would not have altered the attitude of theinternational community. Since South Africa as a sovereign- state was able
to alienate parts of its own territory under international law, these entities would appear in the light of the formal criteria of statehood tohave been formally independent. However, it is suggested that the answer
as to their status lay elsewhere than in an elucidation of this categoryof the criteria of statehood. It lay rather in understanding that actions
taken in order to pursue an illegal policy, such as apartheid, cannot be~ustained.~'An example of the complexities that may attend such a process is provided by the unilateral declaration of independence by Lithuania, oneof the Baltic states unlawfully annexed by the Soviet Union in 1940, on
11 March 1990."' The 1940 annexation was never recognised de jure by
the Western states and thus the control exercised by the USSR was accepted only upon a de facto basis. The 1990 declaration of independence
was politically very sensitive, coming at a time of increasing disintegration within the Soviet Union, but went unrecognised by any state. In viewof the continuing constitutional crisis within the USSR and the possibility of a new confederal association freely accepted by the fifteen Soviet" This was cited as one of the reasons for UK non-recognition, by the Minister of State,
FCO: see UKMIL, 57 BYIL, 1986, pp. 507-8.

" The 1993 South African Constitution provided for the repeal of all laws concerning'O''apartheid, including the four Status Acts which purported to create the 'independent
states' of the four Bantustans, thus effectively reincorporating these areas into South
Africa: see 1. Dugard, International Law - A South '4frican Perspective, Kemvyn, 1994,
p. 346.
See M. N. Shaw, Title to Territory in Africa: International Legal Issues, Oxford, 1986, pp. 16 12. See also OAU Resolution CM.Res.493 (XXVII), General Assembly resolution 3116lA
and Security Council state~nentson 21 September 1979 and 15 December 1981. Note that
the Minister of State at the Foreign and Cornrnonwealth Office declared that 'the very
existence of Rophuthats~vanais a consequence of apartheid and I think that that is theprincipal reason why recognition has not been forthcoming: 126, HC Deb., cols. 760-1,3February 1988.
See Keesing's Record of World Events, p. 37299 (1990).

T H E S U B I E C T S OF INTERNATIONAL LAW

I83

republics, it was at that time premature to talk of Lithuania as an independent state, not least because the Soviet authorities maintained substantial
control within that territory.32The independence of Lithuania and theother Baltic States was recognised during 1991 by a wide variety of states,
including crucially the Soviet
Se2f-determination and the criteria of statehood
It is the criterion of government which, as suggested above, has been mostaffected by the development of the legal right to self-determination. The
traditional exposition of the criterion concentrated upon the stability andeffectiveness needed for this factor to be satisfied,34while the representative and democratic nature of the government has also been put forward
as a requirement. The evolution of self-determination has affected thestandard necessary as far as the actual exercise of authority is concerned,
so that it appears a lower level of effectiveness, at least in decolonisation
situations, has been accepted. This can be illustrated by reference to acouple of cases.
The former Belgian Congo became independent on 30 June 1960 in
the midst of widespread tribal fighting which had spread to the capital.
Within a few weeks the Force Publique had mutinied, Belgian troops hadintervened and the province ofKatanga announced its secession. Notwithstanding the virtual breakdown of government, the Congo was recognisedby alarge number of states after independence and was admitted to the UN
as a member state without opposition. Indeed, at the time of the relevant
General Assembly resolution in September 1960, two different factions of
the Congo government sought to be accepted by the UN as the legitimate
representatives of the state. In the event, the delegation authorised by thehead of state was accepted and that of the Prime Minister rejected.35A
rather different episode occurred with regard to the Portuguese colony
of Guinea-Bissau. In 1972, a UN Special Mission was dispatched to the'liberated areas' of the territory and concluded that the colonial power
had lost effective administrative control of large areas of the territory.
Foreign observers appeared to accept the claim of the PAIGC, the local-''See e.g.thevie~vofthe UK government, 166 HCDeb., col. 697, MTrittenAnswers,5 February
1990.
33 See e.g. R. Mullerson, International Law, Rights and Politics, London, 1994, pp. 119 ff.
j4

See Lauterpacht, Recognition, p. 28.
Contemporary Archives, pp. 17594-5 and 17639-40, and Hoskyns, Congo,
pp. 96-9.

35 Keesing's

184

I N T E R N A T I O N A L LAW

liberation movement, to control between two-thirds and three-quartersof the area. The inhabitants of these areas, reported the Mission, supported the PAIGC which was exercising effective de facto administrative
control." On 24 September 1973, the PAIGC proclaimed the Republicof Guinea-Bissau an independent state. The issue of the 'illegal occupation by Portuguese military forces of certain sections of the Republic ofGuinea-Bissau' came before the General Assembly and a number of statesaffirmed the validity of the independence of the new state in internationallaw. Western states denied that the criteria of statehood had been fulfilled.
However, ninety-three states voted in favour of Assembly resolution 306 1(XXVIII) which mentioned 'the recent accession to independence of thepeople of Guinea-Bissau thereby creating the sovereign state of the Republic of Guinea-Bissau'. Many states argued in favour of this approachon the basis that a large proportion of the territory was being effectively
controlled by the PAIGC, though it controlled neither a majority of the
population nor the major towns.37
In addition to modifying the traditional principle with regard to theeffectiveness of government in certain circumstances, the principle of selfdetermination may also be relevant as an additional criterion of statehood.
In the case of Rhodesia, UN resolutions denied the legal validity of theunilateral declaration of independence on 11 November 1965 and called
upon member states not to recognise it.38NO state did recognise Rhodesia
and a civil war ultimately resulted in its transformation into the recognised state of Zimbabwe. Rhodesia might have been regarded as a state by
virtue of its satisfaction of the factual requirements of statehood, but thisis a dubious proposition. The evidence of complete non-recognition, thestrenuous denunciations of its purported independence by the international community and the developing civil war militate strongly against
this. It could be argued on the other hand that, in the absence of recognition, no entity could become a state, but this constitutive theory of
j6

"

''

Yearbook uf the UN, 1971, pp. 566-7, and AIAC.109IL 804, p. 19. See also Al8723lRev.l
and Assembly resolution 2918 (XXVII).
See GAOR, 28th Session, General Committee, 213rd meeting, pp. 25-6, 28, 30 and 31;
GAOR, 28th session, plenary, 2156th meeting, pp. 8, 12 and 16, and 2157th meeting, pp.
22-5 and 65-7. See also Yearbook of the CN, 1973, pp. 143-7, and CDDHISR.4., pp. 33-7.
See also the Western Sahara situation, below, 17.213,and the recognition ofAngola in 1975
despite the continuing civil war between the three liberation movements nominally allied
in a government of national unity: see Shaw, Title, pp. 155-6.
E.g. General Assembly resolutions 2024 (XX) and 2151 (XXI) and Security Council resolutions 216 (1965) and 217 (1966). See R. Higgins, The World Today, 1967, p. 94, andCrawford, Creation of Statehood, pp. 103-6. See also Shaw, Title.

T H E S U B I E C T S OF INTERNATIONAL LAW

185

recognition is not a ~ c e p t a b l eThe
. ~ ~ best approach is to accept the development of self-determination as an additional criterion of statehood,denial ofwhich would obviate statehood. This can only be acknowledged
in relation to self-determination situations andwouldnot operate in cases,
for example, of secessions from existing states.40In other words, in the caseof an entity seeking to become a state and accepted by the international
community as being entitled to exercise the right of self-determination,
it may well be necessary to demonstrate that the internal requirements ofthe p;inciple have not.been offended. One cannot define this condition
too rigorously in view of state practice to date, but it would appear to bea sound proposition that systematic and institutionalised discrimination
might invalidate a claim to statehood.
In particular, one may point to the practice of the international community concerning the successor states to the former Yugoslavia. The
European Community adopted Guidelines on Recognition of New States
in Eastern Europe and the Soviet Union on 16 December 1991,~'whichconstituted a common position on the process of recognition of such newstates and referred specifically to the principle of self-determination. The
Guidelines underlined the need to respect the rule of law, democracy andhuman rights and mentioned specifically the requirement for guarantees
for the rights of minorities. Although these Guidelines deal with the issue of recognition and not as such the criteria for statehood, the two areinterlinked and conditions required for recognition may in the circumstances, especially where expressed in general and not specific terms, often
in practice be interpreted as additions to the criteria for statehood.

Recognition
Recognition is a method of accepting certain factual situations and endowing them with legal significance, but this relationship is a complicated one.
In the context ofthe creation of statehood, recognition may be viewed as
constitutive or declaratory, as will be noted in more detail in chapter 8. The
former theory maintains that it is only through recognition that a state
comes into being under international law, whereas the latter approach
maintains that once the factual criteria of statehood have been satisfied, a
new state exists as an international person, recognition becoming merelya political and not a legal act in this context. Various modifications have
3'
41

"

Below, chapter 8, p. 368.
See further below, p. 225.
For the text see 31 ILM, 1992, pp. 1486-7 and 92 ILR, p. 173.

186

I N T E R N A T I O N A L LAW

been made to these theories, but the role of recognition, at the least inproviding strong evidential demonstration of satisfaction of the relevant
criteria, must be acknowledged. In many situations, expressed requirements for recognition may be seen as impacting upon the question ofstatehood as the comments in the previous section on the EC Guidelines
indicate. There is also an integral relationship between recognition andthe criteria for statehood in the sense that the more overwhelming thescale of international recognition is in any given situation, the less may
be demanded in terms of the objective demonstration of adherence tothe criteria. Conversely, the more sparse international recognition is, themore attention will be focused upon proof of actual adherence to thecriteria concerned.

Extinction of statehood 42
Extinction of statehood may take place as a consequence of merger, absorption or, historically, annexation. It may also occur as a result of thedismemberment of an existing state.43 In general, caution needs to be
exercised before the dissolution of a state is internationally accepted.44
While the disappearance, like the existence, of a state is a matter of fact,45
it is a matter of fact that is legally conditioned in that it is international
law that will apportion particular legal consequences to particular factual situations and the appreciation of these facts will take place within acertain legal framework.
While it is not unusual for governments to disappear, it is rather rarer
for states to become extinct. This will not happen in international law as
a result of the illegal use of force, as the Kuwait crisis of August 1990 andthe consequent United Nations response clearly demonstrate^,^^ nor as aconsequence of internal upheavals within a state,47but it may occur by
See e.g. Crawford, Creation o f Statellood, pp. 417 ff., and Oppenheirn's Interflational Law,
p. 206. See also H. Ruiz-Fabri, 'Genese et Disparition de 1'Etat a1'Epoque Contemporaine:
AFDI, 1992,p. 153.
4' Opperzl~eirn's
International Law, pp. 206-7. Extinction of statehood may also take place asa consequence of the geographical disappearance of the territory of the state: see e.g. withregard to the precarious situation of Tuvalu, Guardian, 29 October 2001, p. 17.
44 See e.g. Yugosla\~ArbitrationCommission, Opinion No. 8, 92 ILR, pp. 199,201.
Ibid.
See further below, chapter 22, p. 1126.
47 Such as Somalia in the early 1990s: see e.g. Security Council resolutions 751 (1992); 767(1992); 794 (1992); 814 (1993); 837 (1993); 865 (1993); 885 (1993) and 886 (1993). See
also Crawford, Creation of Statehood, p. 417.
4'"

T H E S U B I E C T S OF INTERNATIONAL LAW

Is7consent. Three recent examples may be noted. On 22 May 1990, Northand South Yemen united, or merged, to form one state, the Republic oferne en,^^ while on 3 October 1990, the two German states reunified as aresult of the constitutional accession of the Lander of the German Democratic Republic to the Federal Republic of Germany." The dissolution ofCzech~slovakia"~on 1 January 1993 and the establishment of the two newstates of the Czech Republic and Slovakia constitutes a further exampleof the dismemberment, or disappearance, of a ~ t a t e . ~ 'During 1991, the process of disintegration of the Soviet Union gathered force as the Baltic states reasserted their i n d e p e n d e n ~ eand~ ~ theother Republics of the USSR stated their intention to become sovereign.
In December of that year, the Commonwealth of Independent States wasproclaimed, and it was stated in the Alma Ata ~eclarationj"hat, with theestablishment of the CIS, 'the Union of Soviet Socialist Republics ceases
to exist: The states of the CIS agreed to support 'Russia's continuance ofthe membership of the Union of Soviet Socialist Republics in the United
Nations, including permanent membership of the Security Council, andother international organ is at ion^'.^^ It has been commonly accepted that
Russia constitutes a continuation of the USSR, with consequential adjustments to take account of the independence of the other former Republicsof the Soviet ~ n i o n . " It is therefore a case of dismemberment basicallyconsisting of the transformation of an existing state. The disappearance of
the USSR was accompanied by the claim, internationally accepted, of theRussian Federation to be the continuation of that state. While the elementof continuity is crucial in the framework of the rules of state ~ u c c e s s i o n , ~ ~it does constitute a complication in the context of extinction of states.
By way of contrast, not all the relevant parties accepted that the process of dissolution of the former Socialist Federal Republic of Yugoslavia
during 1991-2 resulted in the dissolution of that state.57 The Federal
See Keesing's Record o f World Events, p. 37470 (1990). See also 30 ILM, 1991, p. 820, and
R. Goy, 'La Reunification du Yemen', AFDI, 1990, p. 249.
49 See below, p. 204. See also C. Schrike, 'L'Unification Allemande: AFDI, 1990, p. 47, andW. Czaplinski, 'Quelques Aspects sur la Reunification de l'Allemagne', AFDI, 1990, p. 89.
Termed at that stage the Czech and Slovak Federal Republic.
See e.g. 1. Malenovsky, 'Problemes J ~ ~ r i d i q u Liese s a la Partition de la Tchecoslovaquie',
AFDI, 1993,p. 305.
See L. Kherad, 'La Reconnaissance Internationale des Etats Baltes', RGDIP, 1992, p. 843.
j3 See 31 ILM, 1992, pp. 118-9.
'4 Ibid., p. 151.
See further below, p. 865,
j6 See below, chapter 17.
j7 See also A. Pellet, 'La Commission d'Arbitrage de la Conference Europeenne pour la Paix
ell Yougaslavie: AFDI, 1991, p. 329; AFDI, 1992, p. 220, and AFDI, 1993, p. 286.
48

"

"

"

188

I N T E R N A T I O N A L LAW

Republic of Yugoslavia, comprising the former Republics of Serbia andMontenegro, saw itself as the continuation of the former state within reduced boundaries, while the other former Republics disputed this andmaintained rather that the Federal Republic of Yugoslavia (Serbia andMontenegro) was a successor to the former Yugoslavia precisely on thesame basis as the other former Republics such as Croatia, Slovenia andBosnia and Herzegovina. The matter was discussed by the Yugoslav Arbitration Commission. In Opinion No. 1 of 29 November 1991, it was notedthat at that stage the Socialist Federal Republic of Yugoslavia was 'in theprocess of d i s s o l ~ t i o n ' .However,~~in Opinion No. 8, adopted on 4 July
1992, the Arbitration Commission stated that the process of dissolution
had been completed and that the Socialist Federal Republic of Yugoslavia(SFRY) no longer existed. This conclusion was reached on the basis of thefact that Slovenia, Croatia and Bosnia and Herzegovina had been recognised as new states, the republics of Serbia and Montenegro had adopted a
new constitution for the 'Federal Republic of Yugoslavia' and UN resolutions had been adopted referring to 'the former SFRY'.'~The Commission
also emphasised that the existence of federal states was seriously compromised when a majority of the constituent entities, embracing a majorityof the territory and population of the federal state, constitute themselves
as sovereign states with the result that federal authority could no longer be
The UN Security Council in resolution 777 (1992)
effectively exer~ised.~'stated that 'the state formerly known as the Socialist Federal Republicof Yugoslavia has ceased to exist'. This was reiterated in resolution 1022
(1995) in which the Security Council, in welcoming the Dayton Peace
Agreement (the General Framework Agreement for Peace in Bosnia andHerzegovina) between the states of the former Yugoslavia and suspending the application of sanctions, stated that the Socialist Federal Republicof Yugoslavia 'has ceased to exist'. On 1 November 2000, Yugoslavia was
92 ILR, pp. 164-5. One should note the importance of the federal structure of the state
in determining the factual situation regarding dissolution. The Arbitration Commission pointed out that in such cases 'the existence of the state implies that the federal
organs represent the components of the Federation and wield effective power', ibid.,
p. 165.
See e.g. Security Council resolutions 752 and 757 (1992). See also the resolution adopted
by the European Community at the Lisbon Council on 27 June 1992, quoted in part inOpinion No. 9, 92 ILR, pp. 204-5.
60 92 ILR, p. 201. In Opinions Nos. 9 and 10, the Arbitration Commission noted that the(Serbia and Montenegro) could not consider itself as theFederal Republic of Y~~goslavia
continuation of the SFRY, but was instead one of the successors to that state on the same
basis as the recognised new states, ibid., pp. 205 and 208.
j8''

T H E S U B I E C T S OF INTERNATIONAL LAW

Is9admitted to the UN as a new member,61following its request sent to the
Security Council on 27 October 2 0 0 0 . ~ ~The fundamental rights of states
The fundamental rights of states exist by virtue of the international legal
order, which is able, as in the case of other legal orders, to define thecharacteristics of its subject^.^"Perhaps the outstanding characteristic of a state is its independence, or
sovereignty. This was defined in the Draft Declaration on the Rights andDuties of States prepared in 1949 by the International Law Commission as
the capacity of a state to provide for its own well-being and development
free from the domination of other states, providing it does not impair
or violate their legitimate right^.^"^ independence, one is referring to alegal concept and it is no deviation from independence to be subject to therules of international law. Any political or economic dependence that may
in reality exist does not affect the legal independence of the state, unlessthat state is formally compelled to submit to the demands of a superior
state, in which case dependent status is concerned.
A discussion on the meaning and nature of independence took placein the Austro-German Customs Union case before the Permanent Courtof International Justice in 1 9 3 1 . ~It~concerned a proposal to create a'' General Assembly resolution 55/12," See

Yugoslav Application instituting proceedings filed at ICJ Registry, 24 April
2001, for re~isionof the Court's preliminary objections judgment of 11 July 1996,
para. 18 (http:lluww.icj-cij.orglicjwwwiidocketliybhliybhapplication/iybl~iapplication~
20010423.pdf).
" See e.g. A. Kiss, Repertoire de la Pratique Fran~aiseen Mati?re deDroit International Public,
Paris, 1966, vol. 11, pp. 21-50, and Survey of International Law, prepared by the UN
Secretary-General, AlCN.41245.
64 Oppenheirn's International Latv, p. 382. See also N. Schrijuer, 'The Changing Nature of State
Sovereignty', 70 BYIL, 1999, p. 65; C. Rousseau, 'L'Independance de 1'Etat dans l'Ordre
International', 73 HR, 1948 11, p. 171; H. G. Gelber, Sovereignty Through Independence, The
Hague, 1997; Brownlie, Principles, p. 289, andNguyen QuocDinh et al., DroitInternational
Public, p. 422.
Yearbook of the ILC, 1949, p. 286. Tudge Huber noted in the Island of Palnzas case that'independence in regard to a portion of the globe is the right to exercise therein, to the
exclusion of any other state, the functions of a state', 2 RIAA, pp. 829, 838 (1928); 4 AD,
p. 3.
66 PCIJ, Series A/B, No. 41, 1931; 6 AD, p. 26.

''

l9 0

I N T E R N A T I O N A L LAW

free trade customs union between the two German-speaking states andwhether this was incompatible with the 1919 Peace Treaties (coupledwith a subsequent protocol of 1922) pledging Austria to take no action tocompromise its independence. In the event, and in the circumstances of
the case, the Court held that the proposed union would adversely affectAustria's sovereignty. Judge Anzilotti noted that restrictions upon a state's
liberty, whether arising out of customary law or treaty obligations, do notas such affect its independence. As long as such restrictions do not place
the state under the legal- authority of another state, the former maintains
its status as an independent country."
The Permanent Court emphasisedin the ~ o t u s c a s thate ~ ~'[r] estrictions
upon the independence of states cannot therefore be presumed'. A similar
point in different circumstances was made by the International Court ofJustice in the Nicaragua case,69where it was stated that 'in international
law there are no rules, other than such rules as may be accepted by thestate concerned, by treaty or otherwise, whereby the level of armamentsof a sovereign state can be limited, and this principle is valid for all states
without exception'. The Court also underlined in the Legality of the Threator Use of Nuclear weaponsio that '[s] tate practice shows that the illegalityof the use of certain weapons as such does not result from an absence ofauthorisation but, on the contrary, is formulated in terms of prohibition'.
The starting point for the consideration of the rights and obligations ofstates within the international legal system remains that international law
permits freedom of action for states, unless there is a rule constraining this.
However, such freedom exists within and not outside the international
legal system and it is therefore international law which dictates the scopeand content of the independence of states and not the states themselvesindividually and unilaterally.
The notion of independence in international law implies a number ofrights and duties: for example, the right of a state to exercise jurisdiction
over its territory and permanent population, or the right to engage uponan act of self-defence in certain situations. It implies also the duty not
to intervene in the internal affairs of other sovereign states. Precisely
PCIJ, Series AIB, No. 41, 1931, p. 77 (dissenting); 6 AD, p. 30 See also the North Atlantic
CoastFisheriescase (1910),Scott, HagueCot~rtReports,17. 141 at 17. 170, andthe Wirnbledon
case, PCIJ, Series A, No.1, 1923, p. 25; 2 AD, p. 99.
PCIr, Series A, No. 10, 1927, p. 18; 4 AD, pp. 153, 155.
@ I C J Reports, 1986, pp. 14, 135; 76 ILR, pp. 349, 469. See also the Legality of the Threat or
Use ofNuclear Weapons, ICJ Reports, 1996, pp. 226,238-9; 110 ILR, p. 163.
70 ICJ Reports, 1996, pp. 226,247; 110 ILR, p. 163.
67

T H E S U B ~ E C T SO F I N T E R N A T I O N A L L AW

191

what constitutes the internal affairs of a state is open to dispute andis in any event a constantly changing standard. It was maintained by
the Western powers for many years that any discussion or action by theUnited Nations71 with regard to their colonial possessions was contrary
to international law.
However, this argument by the European colonial powers did not
succeed and the United Nations examined many colonial situation^.^^In addition, issues related to human rights and racial oppression do
not now fall within the closed category of domestic jurisdiction. It wasstated on behalf of the European Community, for example, that the 'protection of human rights and fundamental freedoms can in no way beconsidered an interference in a state's internal affairs: Reference wasalso made to 'the moral right to intervene whenever human rights are
violated'.73
This duty not to intervene in matters within the domestic jurisdiction of any state was included in the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among
States adopted in October 1970 by the United Nations General Assembly.
It was emphasised that[ n ] o state or group of states has the right to intervene, directly or indirectly,
for any reason whatever, in the internal or external affairs of any other state.
Consequently, armed intervention and all other forms of interference or
attempted threats against the personality of the state or against its political,
econoinic and cultural elements, are in violation of international law.

The prohibition also covers any assistance or aid to subversive elements
aiming at the violent overthrow of the government of a state. In p articular," Article 2 ( 7 )ofthe UN Charter provides that 'nothing in the present Charter shall authorise

the United Nations to intervene in matters which are essentially witllin the domestic jurisdiction of any state'. On the relationship between this article and the general internationallaw provision, see Brownlie, Principles, p. 294.
See Higgins, Development, pp. 58-130; Brownlie, Principles, pp. 293-4; M. Raian, United~Vatioilsand Dornestic Jurisdiction, 2nd edn, London, 1961, and H. Kelsen, Principles ofInternational Law, 2nd edn, London, 1966.
" EICN.4I1991ISR.43, p. 8, quoted in UKMIL, 62 BYIL, 1991, p. 556. See also statement of
the European Community in 1992 to the same effect, UKMIL, 63 BYIL, pp. 635-6. By way
of contrast, the Iranian fativa condemning the British writer Salman Rushdie to death wascriticised by the UK government as calling into question Iran's commitment to honour
its obligations not to interfere in the internal affairs of the UK, ibid., p. 635. See also M.
Reisman, 'Sovereignty and Human Rights in Contemporary International Law', 84 ArIL,
1990, p. 866.

''

192

I N T E R N A T I O N A L LAW

the use of force to deprive peoples of their national identity amounts to aviolation of this principle of non-interventi~n.~"The principles surrounding sovereignty, such as non-intervention, areessential in the maintenance of a reasonably stable system of competingstates. Setting limits on the powers of states vis-a-vis other states contributes to some extent to a degree of stability within the legal order. As
the International Court of Justice pointed out in the Corfu Channel casein 1949, 'between independent states, respect for territorial sovereignty isan essential foundation of international relations'.j5
By a similar token a state cannot purport to enforce its laws in the territory of another state without the consent of the state concerned. However,international law would seem to permit in some circumstances the state
to continue to exercise its jurisdiction, notwithstanding the illegality of
the apprehension.j6 It also follows that the presence of foreign troops on
the territory of a sovereign state requires the consent of that state."

One other crucial principle is the legal equality of states, that is equalityof legal rights and duties. States, irrespective of size or power, have thesame juridical capacities and functions, and are likewise entitled to one
vote in the United Nations General Assembly. The doctrine of the legal
equality of states is an umbrella category for it includes within its scope
the recognised rights and obligations which fall upon all states.
This was recognised in the 1970 Declaration on Principles of International Law. This provides that:All states enjoy sovereign equality. They have equal rights and duties andare equal members of the international community notwithstanding differences of an economic, social, political or other nature.
In particular, sovereign equality includes the following elements:(a) States are juridically equal;(b) Each state enjoys the rights inherent in full sovereignty;'4

See also the use of force, below, chapter 20.

" ICJ Reports, 1949, pp. 4, 35; 16 AD, pp. 155, 167. See below, p. 512.
'6

See e.g. the Eichrnanrl case, 36 ILR, p. 5. But see further below, 17. 604.

" See the statement made on behalf of the European Comn~unityon 25 November 1992

with regard to the presence of Russian troops in the Baltic states, UKMIL, 63 BYIL, 1992,
p. 724.
Oppenheirn'5 International Law, p. 339, and Nguyen Quoc Dinh et al., Droit International
Public, p. 428.

T H E S U B I E C T S OF INTERNATIONAL LAW

I93(c) Each state has the duty to respect the personality of other states;(d) The territorial integrity and political independence of the state are
inviolable;(e) Each state has the right freely to choose and develop its political, social,economic and cultural systems;(f) Each state has the duty to comply fully and in good faith with its
international obligations and to live in peace with other state^.'^In many respects this doctrine owes its origins to Natural Law thinking.
Just as equality was regarded as the essence of man and thus contributed
philosophically to the foundation ofthe state, so naturalist scholars treatedequality as the natural condition of states. With the rise in positivism, theemphasis altered and, rather than postulating a general rule applicable to
all and from which a series of rights and duties may be deduced, international lawyers coilcentrated upon the sovereignty of each and every state,
and the necessity that international law be founded upon the consent ofstates.
The notion of equality before the law is accepted by states in the senseof equality of legal personality and capacity. However, it would not bestrictly accurate to talk in terms of the equality of states in creating law.
The major states will always have an influence commensurate with theirstatus, if only because thei; concerns are much wider, their interests much
deeper and their power more effecti~e.~'Within the General Assembly of the United Nations, the doctrine ofequality is maintained by the rule of one state, one vote.81 However, one
should not overlook the existence ofthe veto possessed by the USA, Russia,
China, France and the United Kingdom in the Security ~ o u n c i l . ~ "Peaceful co-existenceThis concept has been formulated in different ways and with different
views as to its legal nature by the USSR, China and the Third World. It was
See also Final Act of the Conference on Security and Co-operation in Europe, Helsinki,
1975, Cmnd 6198, pp. 2-3. See also O'Connell, Internatiorzal Laiu, pp. 322-4; P. Kooijmans,
The Doctrine of the Legal Equality of States, Leiden, 1964, and Marshall CJ, The Antelope,
10 Wheat., 1825, pp. 66, 122.
See Nguyen Quoc Dinh et al., Droit Irzternational Public, pp. 1062-3.
" See e.g. L. Sohn, Cases on UN Law, 2nd edn, Brooklyn, 1967, pp. 232-90, and G. Clark
and L. Sohn, World Peace Through M'orld Law, 3rd edn, New York, 1966, pp. 399-402.
82 The doctrine of equality of states is also influential in areas of international law suchas jurisdictional immunities, below, chapter 13, and act of state, above, chapter 4,
p. 162.
'9

I94

I N T E R N A T I O N A L LAW

elaborated in 1954 as the Five Principles of Peaceful Co-existence by India
and China, which concerned mutual respect for each other's territorial
integrity and sovereignty, mutual non-aggression, non-interference ineach other's affairs and the principle of equality.8"
The idea was expanded in a number of international documents suchas the final communiqu~of the Bandung Conference in 1955 and invarious resolutions of the United ~ a t i o n s . 'Its
~ recognised constituentsalso appear in the list of Principles of the Charter of the Organisation of
African Unity. Among the points enumerated are the concepts of sovereign
equality, non-interference in the internal affairs of states, respect for thesovereignty and territorial integrity of states, as well as a condemnation ofsubversive activities carried out from one state and aimed against another.
Other concepts that have been included in this category comprise suchprinciples as non-aggression and the execution of international obligations in good faith. The Soviet Union had also expressed the view thatpeaceful co-existence constituted the guiding principle in contemporaryinternational law.85

Protectorates and protected states'"

A distinction is sometimes made between a protectorate and a protectedstate. In the former case, in general, the entity concerned enters into an
arrangement with a state under which, while separate legal personality
may be involved, separate statehood is not. In the case of a protectedstate, the entity concerned retains its status as a separate state but enters
into a valid treaty relationship with another state affording the latter
certain extensive functions possibly internally and externally. However,precisely which type of arrangement is made and the nature of the status,
rights and duties in question will depend upon the circumstances and, inparticular, the terms ofthe relevant agreement and third-party attitudes."In the case of Morocco, the Treaty of Fez of 1912 with France gave the" See e.g. Tunkin, Theory, pp. 69-75. See also B. Ramondo, Peaceful Co-existence, Baltimore,

1967, and R. Higgins, Conflict oflnterests, London, 1965, pp. 99-170.
84 See e.g. General Assembly resolutions 1236 (XII) and 1301 (XIII). See also Yearbook ofthe

CTN, 1957, pp. 105-9; ibid., 1961, p. 524 and ibid., 1962, p. 488.
" Tunkin, Theory, pp. 35-48.
86 See Opperll~eirn'sInternational Law, p. 266; Crawford, Creatiorl of Statehood, pp. 187-208;

O'Connell, International Law, pp. 341-4, and L'erzijl, International Law, pp. 412-27.
See the Tunic and Morocco Nationality Decrees case, (1923) PCIT, Series B, No. 4, p. 27; 2AD, p. 349. See also the question of the Ionian Islands, M. F. Lindley, The Acquisition and
Government of Backivard Territory in International Laiv, London, 1926, pp. 181-2.

T H E S U B I E C T S OF INTERNATIONAL LAW

I95

latter the power to exercise certain sovereign powers on behalf of theformer, including all of its international relations. Nevertheless, the ICJ
emphasised that Morocco had in the circumstances of the case remained
a sovereign- state.88
In the case of sub-Saharan Africa in the colonial period, treaties ofprotection were entered into with tribal entities that were not states. Such
institutions were termed 'colonial protectorates' and constituted internalcolonial arrangements. They did not constitute international treaties withinternationally recognised
states.89
The extent of powers delegated to the protecting state in such circumstances may vary, as may the manner of the termination of the arrangement. In these cases, formal sovereignty
remains unaffected and the entity.
in question retains its status as a state, and may act as such in the various international fora, regard being had of course to the terms of thearrangement. The obligation may be merely to take note of the advice ofthe protecting state, or it may extend to a form of diplomatic delegation
subject to instruction, as in the case of Liechtenstein. Liechtenstein was
refused admission to the League of Nations since it was held unable todischarge all the international obligations imposed by the Covenant in
the light of its delegation of sovereign powers, such as diplomatic representation, administration of post, telegraph and telephone services andfinal decisions in certain judicial cases.90Liechtenstein, however, has beena party to the Statute of the International Court of Justice and was a party' before the Court, a facility only open to states.
to the ~ o t t e b o h m ~case
Liechtenstein joined the United Nations in 1990.

Federal states 92
There are various forms of federation or confederation, according to therelative distribution of power between the central and local organs. In" Rights ofNationals uf the United States of America in Morocco, ICJ Reports, 1952, pp. 176,

188; 19 ILR, pp. 255,263. See also to the same effect, Benai'm c. Proctrreur de la R$ubliqtre
de Bordeaux, AFDI, 1993, p. 971.
" See Carrteroon v. Nigeria, ICJ Reports, 2002, paras. 205-9. See also the Islartd of Palrnas
case, 2 RIAA, pp. 826, 858-9 and Shaw, Title, chapter 1.
See Crawford, Creation of Statehood, 17. 190; Report of the 5th Committee of the League,
6 December 1920, G. Hackworth, Digest of Ir~ternationalLaw, IVashington, 1940, vol. I,
pp. 48-9; Higgins, Development, p. 34, note 30.
ICJ Reports, 1955, p. 4; 22 ILR, p. 349.
" See Oppenheim's International Law, p. 245. See also I. Bernier, International Legal Aspects
ofFederalism, London, 1973, and 17 RevtleBelge de Droit International, 1983, p. 1.

"

I9 6

I N T E R N A T I O N A L LAW

some states, the residue of power lies with the central government, inothers with the local or provincial bodies. A confederation implies a more
flexible arrangement, leaving a considerable degree of authority and competence with the component units to the detriment of the central organ.9"
The Yugoslav Arbitration Commission noted in Opinion No. 1 that in
the case of a federal state embracing communities possessing a degree of
autonomy where such communities participate in the exercise of politicalpower within the framework of institutions common to the federation,
the 'existence of the state implies that the federal organs represent thecomponents of the federation and wield effective power'.94 In addition,
the existence of such a federal state would be seriously compromised 'whena majority of these entities, embracing the greater part of the territory andpopulation, constitute themselves as sovereign states with the result thatfederal authority may no longer be effectively exerci~ed'.~~The division of powers inherent in such arrangements often raises important questions for international law, particularly in the areas ofpersonalitj: responsibility and immunity. Whether the federation dissolves into
two or more states also brings into focus the doctrine ofself-determinationin the form of secession. Such dissolution may be the result of an amicableand constitutional agreement or may occur pursuant to a forceful exercise
of secession. In the latter case, international legal rules may be pleadedin aid, but the position would seem to be that (apart from recognisedcolonial situations) there is no right of self-determination applicable toindependent states that would justify the resort to secession. There is, ofcourse, no international legal duty to refrain from secession attempts: thesituation remains subject to the domestic law. However, should such a secession prove successful in fact, then the concepts of recognition and theappropriate criteria of statehood would prove relevant and determinative
as to the new ~ i t u a t i o n . ~ ~The federal state will itself, of course, have personality, but the questionof the personality and capability of the component units of the federationon the international plane can really only be determined in the light ofthe constitution of the state concerned and state practice. For instance,
the then Soviet Republics of Byelorussia and the Ukraine were admitted
as members of the United Nations in 1945 and to that extent possessedinternational p e r ~ o n a l i t ~ Component.~'
states of a federation that have
93 See also below, p. 197.

94 92 ILR, p. 165.

" Opinion No. 8, ibid., p. 201.
9'"

See below, p. 443.
See e.g. Bernier, Federalism, pp. 64-6. These entities were also members of a number ofinternational organisations and signed treaties.

T H E S U B I E C T S OF INTERNATIONAL LAW

I97

been providedwith a certain restrictedinternational competence may thus
be accepted as having a degree of international personality. The issue hasarisen especially with regard to treaties. Lauterpacht, in his Report on the
Law of Treaties, for example, noted that treaties concluded by component
units of federal states 'are treaties in the meaning of international law',98
although Fitzmaurice adopted a different approach in his Report on the
Law of Treaties by stating that such units act as agents for the federation
which alone possesses international personality and which is the entity
bound by the treaty and responsible for its i m p l e r n e n t a t i ~ n .Article~~
5(2) of the International Law Commission's Draft Articles on the Law ofTreaties provided that[sltates members of a federal union may possess a capacity to conclude
treaties if such capacity is admitted by the federal constitution and ~vithin
the limits there laid down

but this was ultimately rejected at the Vienna Conference on the Law of~reaties,~"
partly on the grounds that the rule was beyond the scope ofthe
Convention itself. The major reasons for the rejection, however, were thatthe provision would enable third states to intervene in the internal affairsof federal states by seeking to interpret the constitutions of the latter andthat, from another perspective, it would unduly enhance the power ofdomestic law to determine questions of international personality to thedetriment of international law. This perhaps would indeed have swung
the balance too far away from the international sphere of operation.
Different federations have evolved different systems with regard
to theallocation of treaty-making powers. In some cases, component units may
enter into such arrangements subject to varying conditions. The Constitution of Switzerland, for example, enables the cantons to conclude
treaties with foreign states on issues concerning public economy, frontier relations and the police, subject to the provision that the Federal
Council acts as the intermediary.lo1In the case of the United States, responsibility for the conduct of foreign relations rests exclusively with
the Federal Government,lo2 although American states have entered into
Yearbook of the ILC, 1953, vol. 11, p. 139.
Yearbook of the ILC 1958, vol. 11, p. 24. Cf. Waldock, ibid., 1962, vol. 11, p. 36.
' O n AICONF.39ISR.8,28 April 1969.
lo' See e.g. A. Looper, 'The Treaty Power in Switzerland: 7 American Journal of Comparative
Law, 1958, p. 178.
lo' See e.g. Article I, Section 10 of the US Constitution; USv. Curtiss- WrightExport Corp. 299
US 304 (1936);8 AD, p. 48, and Zachevningv. Miller389 US 429 ( 1 9 6 8 ) .See also generally,
9S

99

I9 8

I N T E R N A T I O N A L LAW

certain compacts with foreign states or component units (such as Manitoba and Quebec, provinces of Canada) dealing with the construction
and maintenance of highways and international bridges, following upon
consultations with the foreign state collducted by the federal authorities.
In any event, it is clear that the internal constitutional structure is crucial
in endowing the unit concerned with capacity. What, however, turns this
into international capacity is recognition.
An issue recently the subject of concern and discussion has been thequestion of the domestic implementation of treaty obligations in the caseof federations, especially in the light of the fact that component units
may possess legislative power relating to the subject-matter of the treaty
concerned. Although this issue lies primarily within the field of domestic
constitutional law, there are important implications for international law.
In the US, for example, the approach adopted has been to insert 'federal'
reservations to treaties in cases where the states of the Union have exercised jurisdiction over the subject-matter in question, providing that theFederal Government would take appropriate steps to enable the competent authorities of the component units to take appropriate measures tofulfil the obligations concerned.lo3In general, however, there have been
few restrictions on entry into international agreements.lo4
The question as to divided competence in federations and international
treaties has arisen in the past, particularly with regard to conventions of
the International Labour Organisation, which typically encompass areas
subject to the law-making competence of federal component units. In
Canada, for example, early attempts by the central government to ratify
ILO conventions were defeated by the decisions of the courts on constitutional grounds, supporting the views of the provinces,''' while the US
has a poor record of ratification of ILO conventions on similar groundsof local competence and federal treaty-making.'06 The issue that arises
therefore is either the position of a state that refuses to ratify or sign atreaty on grounds of component unit competence in the area in question
Brownlie, Principles, pp. 59-60; Il%iteman, Digest, vol. 14, pp.13-17, and Rousseau, Droit
International Public, pp. 138-213 and 264-8.
lo' See e.g. the proposed reservations to four human rights treaties in 1978, US Ratificationof the Htrman Rights Treaties (ed. R. B. Lillich), Charlottesville, 1981, pp. 83-103.
lo4 See e.g. Missouriv. Holland, 252 US 416 (1920); 1 AD, p. 4.
lo' See especially, Attorney-General for Canada v. Attorney-General for Ontario [1937] AC
326; 8 AD, p. 41.
lo6 Bernier, Federalism, pp. 162-3, and A. Looper, 'Federal State Clauses in Multilateral
Instruments', 32 BYIL, 1955-6, p. 162.

T H E S U B I E C T S OF INTERNATIONAL LAW

I99

or alternatively the problem of implementation and thus responsibility
where ratification does take place. In Australia, for instance, the issue hasturned on the interpretation of the constitutional grant of federal power
to make laws 'with respect t o . . . external affairs'.''' Two recent cases haveanalysed this, in the light particularly of the established principle that theFederal Government could under this provision legislate on matters, nototherwise explicitly assigned to it, which possessed an intrinsic international aspect.lo8
In Koowarta v. ~jelke-~etersen"~in 1982, the Australian High Court,
in dealing with an action against the Premier of Queensland for breachof the Racial Discrimination Act 1975 (which incorporated parts of theInternational Convention on the Elimination of All Forms of Racial Discrimination adopted in 1965))held that the relevant legislation was valid
with respect to the 'external affairs' provision under section 5 l(29) of theConstitution. In other words, the 'external affairs' power extended to permit the implementation of an international agreement, despite the factthat the subject-matter concerned was otherwise outside federal power.
It was felt that if Australia accepted a treaty obligation with respect to an
aspect of its own internal legal order, the subject of the obligation thus
became an 'external affair' and legislation dealing with this fell within
section 51(29), and was thereby valid constit~tionally."~It was not necessary that a treaty obligation be assumed: the fact that the norm of nondiscrimination was established in customary international law was itself
sufficient in the view of Stephen J to treat the issue of racial discriminationas part of external affairs."'
In Commonwealth ofAustralia v.
the issue concerned theconstruction of a dam in an area placed on the World Heritage List established under the 1972 UNESCO Convention for the Protection of theWorld Cultural and Natural Heritage, to which Australia was a party. The
Federal Government in 1983 wished to stop the scheme by reference interalia to the 'external affairs' power as interpreted in Koowurta, since it possessed no specific legislative power over the environment. The majority of
See e.g. L. R. Zines, TheHigh Court and the Constitution, Sydney, 1981, and A. Byrnes and
H. Charlesworth, 'Federalism and the International Legal Order: Recent Developmellts
in Australia: 79 AIIL, 1985, p. 622.
lo' R v. Burgess, exparte Henry 55 CLR 608 (1936); 8 AD, p. 54.
"8
ILR, p. 181.
'lo Ibid., pp. 223-4 (Stephen J); p. 235 (Mason J) and p. 255 (Brennan J).
11' Ibid., pp. 223-4.
11' Ibid., p. 266. The case similarly came before the High Court.
lo'

200

I N T E R N A T I O N A L LAW

the Court held that the 'external affairs' power extended to the implementation of treaty obligations. It was not necessary that the subject-matterof the treaty be inherently international.
The effect of these cases seen, of course, in the context of the Australian
Constitution, is to reduce the problems faced by federal states of implementing international obligations in the face of local jurisdiction.
The difficulties faced bv federal states have also become evident withregard to issues of state r e s p ~ n s i b i l i t ~ .As" ~a matter of international law,states are responsible for their actions, including those of subordinate organs irrespective of domestic constitutional arrangements.ll"heInternational Court in the I m m u n i t y from Legal Process of a Special Rapporteur
case stated that it was a well-established rule of customary international
law that 'the conduct of any organ of a State must be regarded as an actof that state''15 and this applies to component units of a federal state. As
the Court noted in its Order of 3 March 1999 on provisional measures inthe LaGrand case, 'the international responsibility of a State is engaged
by the action of the competent organs and authorities acting in that State,
whatever they may be'. In particular, the US was under an obligation totransmit the Order to the Governor ofthe State ofArizona, while the Governor was under an obligation to act in conformity with the international
undertakings of the
Similarly, the Court noted in the I m m u n i t yfrom Legal Process of a Special Rapporteur case that the government of
Malaysia was under an obligation to communicate the Court's Advisory
Opinion to the Malaysian courts in order that Malaysia's international
obligations be given effect."'
Thus, international responsibility of the state may co-exist with aninternal lack of capacity to remedy the particular international wrong.
In such circumstances, the central government is under a duty to seek'

See e.g. R. Higgins, 'The Concept of "the State": Variable Geometry and Dualist Perceptions' in The International Legal System in Quest o f E q ~ i t andy Universality (eds. L. Boissonde Chazournes andV. Go~vlland-Debas),The Hague, 2001, p. 547.
l 4 Article 4(1) of the International Law Commission's Articles o n State Responsibility, 2001,
provides that: 'The conduct of any State organ shall be considered an act of that State
under international law, whether the organ exercises legislative, executive, judicial or any
other functions, whatever position it holds in the organisation of the State, and whateverits character as an organ of the central government or of a territorial unit of the State.'
See also 1. Crawford, The International Law Corr~rnission'sArticles on State Responsibility,
Cambridge, 2002, pp. 94 ff.
'I5 ICJ Reports, 1999, pp. 62, 87; 121 ILR, p. 367.
'I6 ICJ Reports, 1999, pp. 9, 16; 118 ILR, p. 37. See also e.g. the Pellat case, 5 RIAA, p. 534(1929).
'I7 ICJ Reports, 1999, pp. 62, 88; 121 ILR, p. 367.

T H E S U B I E C T S OF INTERNATIONAL LAW

201

to persuade the component unit to correct the violation of international
law,"8 while the latter is, it seems, under an international obligation toact in accordance with the international obligations of the state.
Federal practice in regulating disputes between component units isoften of considerable value in international law. This operates particularly
in cases of boundary problems, where similar issues arise."' Conversely,international practice may often be relevant in the resolution of conflicts
between component units.l2'

Sui generis territorial entities
Mandated and trust teuritoriesl2l
After the end of the First World War and the collapse of the Axis andRussian empires, the Allies established a system for dealing with thecolonies ofthe defeated powers that did not involve annexation. These territories would be governed according to the principle that 'the well-being
and development of such peoples form a sacred trust of civilisation'. The
way in which this principle would be put into effect would be to entrust
the tutelage of such people to 'advanced nations who by reason of theirresources, their experience or their geographical position' could undertake the responsibility. The arrangement would be exercised by them as
mandatories on behalf of the ~ e a g u e . ' ~ ~Such issues arise from time to time with regard to human rights matters before international or regional human rights bodies: see e.g. Toor~enu. Australia, Human Rights
Committee, Communication No. 48811992,112 ILR, p. 328, and Tyrerv. UK, 2 European
Human Rights Reports 1. See also Mutthe~vsv. UK, 28 European Human Rights Reports
361, and Rh.IDv. Switzerland, ibid., 224.
I l 9 See e.g. E. Lauterpacht, 'Rip-er Boundaries: Legal Aspects of the Shatt-Al-Arab Frontier:C u k ~ w r a hThe
, Settlernent ofBoundary Disputes in
9 ICLQ, 1960, pp. 208,216, and A. 0.
International Law, Manchester, 1967.
See also below, chapters 13 and 14.
12' See generally H. Duncan Hall, Mandates, Dependencies and Trusteeships, London, 1948;
Whiteman, Digest, vol. I, pp. 598-911 and vol. XIII, pp. 679 ff.; C. E. Toussaint, The
Trusteeship System of the United Natior~s,New York, 1957; I'erzijl, blternational Law, vol.
11, pp. 545-73; Q. Wright, mandates Under the League o f Nations, New York, 1930; J.
Dugard, The South West Africa/Narnibia Dispute, Berkeley, 1973, and S. Slonim, Sot~thWest Africa and the United Nations, Leiden, 1973. See also Oppenheirn'c International Law,
pp. 295 and 308.
12' See article 22 of the Covenant of the League of Nations. See also the International Statucof South West Afi-icu, ICJ Reports, 1950, pp. 128, 132; 17 ILR, p. 47; the Namibia case, ICJ
Reports, 1971, pp. 16,28-9; 49 ILR, pp. 2, 18-19; Certain Phosphate Lands in Nauru, ICJ202

I N T E R N A T I O N A L LAW

Upon the conclusion of the Second World War and the demise of
the League, the mandate system was transmuted into the United Nations
trusteeship system under Chapters XI1 and XI11 of the UN Charter.123The
strategic trust territory of the Pacific, taken from Japan, the mandatory
power, was placed in a special category subject to Security Council rather
than Trusteeship Council supervision for s e c u r i t y r e a ~ o n s ,while' ~ ~ South
Africa refused to place its mandated territory under the system. Quite whoheld sovereignty in such territories was the subject of extensive debatesover many decades.lZ5
As far as the trust territory of the Pacific was concerned, the US signed a
Covenant with the Commonwealth of the Northern Mariana Islands andCompacts of Free Association with the Federated States of Micronesia andwith the Republic of the Marshall Islands. Upon their entry into force inautumn 1986, it was determined that the trusteeship had been terminated.
This procedure providing for political union with the US was accepted by
the Trusteeship Council as a legitimate exercise of self-determinati~n.'~~However, the proposed Compact of Free Association with the Republic of
Palau (the final part of the former trust territory) did not enter into force
as a result of disagreement over the transit of nuclear-powered or armed
vessels and aircraft through Palauan waters and airspace and, therefore,
the US continued to act as administering authority under the trusteeshipagreement."' These difficulties were eventually re~olved."~Reports, 1992, pp. 240,256; 97 ILR, pp. 1,23 and Canieroon u. Nigeria, ICT Reports, 2002,
para. 212.
12' See e.g. Certain Pliospllate Lands in Nauru, ICJ Reports, 1992, pp. 240, 257; 97 ILR,
pp. 1, 24. See also the discussion by Judge Shahabuddeen in his Separate Opinion, ICJ
Reports, 1992, pp. 276 ff.; 97 ILR, p. 43. Note that the Court in this case stated that thearrangements whereby Nauru was to be administered under the trusteeship agreementby the governments of the UK, Australia and New Zealand together as 'the administering
authority' did not constitute that authority an international legal person separate fromthe three states so designated: ICJ Reports, 1992, p. 258; 97 ILR, p. 25. See also Canierooii
v. Nigeria, ICT Reports, 2002, para. 212.
McHenry, Micronesia: Trust Betrayed, New York, 1975; Whiteman, Digest, vol. I,
See 0.
pp. 769-839; S. A. de Smith, Micro-States and Micronesia, New York, 1970; DUSPIL, 1973,
pix 59-67; ibid., 1974, pp. 54-64; ibid., 1975, pp. 94-104; ibid., 1976, pp. 56-61; ibid.,
1977, pp. 71-98 and ibid., 1978, pp. 204-31.
12' See in particular Judge McNair, Internatior~dStatt~sof South M'est Africa, ICJ Reports,
1950, pp. 128, 150 and the Court's view, ibid., p. 132; 17 ILR, pp. 47, 49.
See Security Council resolution 683 (1990).
12' See 'Contemporary Practice of the United States Relating to International Law', 81 AJIL,
1987, pp. 405-8. See also Bank of Hatvaii~r.Balos 701 F.Supp. 744 (1988).
See Security Council resolution 956 (1994).

'"

T H E S U B I E C T S OF INTERNATIONAL LAW

203

South West Africa was administered after the end of the First World
War as a mandate by South Africa, which refused after the Second World
War to place the territory under the trusteeship system. Following this,the International Court of Justice in 1950 in its Advisory Opinion on theInternational Status of South West Africa'29 stated that, while there wasno legal obligation imposed by the United Nations Charter to transfer amandated territory into a trust territory, South Africa was still bound by
the terms of the mandate agreement and the Covenant of the League of
Nations, and the obligations that it had assumed at that time. The Court
emphasised that South Africa alone did not have the capacityto modify theinternational status of the territory. This competence rested with South
Africa acting with the consent of the United Nations, as successor to the
League of Nations. Logically flowing from this decision was the ability of
the UnitedNations to hear petitioners from the territoryin consequence ofSouth Africa's refusal to heed United Nations decisions and in pursuanceof League of Nations practices.l3'
In 1962 the ICJ heard the case brought by Ethiopia and Liberia, thetwo African members of the League, that South Africa was in breachof the terms of the mandate and had thus violated international law.
The Court initially affirmed that it had jurisdiction to hear the meritsof the dispute.13' However, by the Second Phase of the case, the Court(its composition having slightly altered in the meanwhile) decided that
Ethiopia and Liberia did not have any legal interest in the subject-matterof the claim (the existence and supervision of the mandate over SouthWest Africa) and accordingly their contentions were rejected.132 Having thus declared on the lack of standing of the two African appellants,
the Court did not discuss any of the substantive questions which stood
before it.
This judgment aroused a great deal of feeling, particularly in the Third
World, and occasioned a shift in emphasis in dealing with the problem of
the territory in question.'33
The General Assembly resolved in October 1966 that since South Africa
had failed to fulfil its obligations, the mandate was therefore terminated.
South West Africa (or Namibia as it was to be called) was to come under

12'
130
13'
13'
13'

ICJ Reports, 1950, pp. 128, 143-4; 17 ILR, pp. 47,57-60.
ICJ Reports, 1955, p. 68; 22 ILR, p. 651 and ICJ Reports, 1956, p. 23; 23 ILR, p. 38.
ICJ Reports, 1962, pp. 141 and 143.
ICJ Reports, 1966, p. 6; 37 ILR, p. 243.
See e.g. Dugard, South WestAfrica/Narnibia,p. 378.

204

I N T E R N A T I O N A L LAW

the direct responsibility of the United ~ a t i 0 n s .Accordingly,l~~a Council
was established to oversee the territory and a High Commissioner appointed.''' The Security Council in a number of resolutions upheld theaction of the Assembly and called upon South Africa to withdraw its administration from the territory. It also requested other states to refrainfrom dealing with the South African government in so far as Namibia wasconcerned. 136
The Security Council ultimately turned to the International Court andrequested an Advisory Opinion as to the Legal Consequences for States of theContinued Presence of South Africa in ~ a m i b i a . ' ~The' Court concluded
that South Africa's presence in Namibia was indeed illegal in view ofthe series of events culminating in the United Nations resolutions on the
grounds of a material breach of a treaty (the mandate agreement) by South
Africa, and further that 'a binding determination made by a competentorgan of the United Nations to the effect that a situation is illegal cannot
remain without consequence'. South Africa was obligated to withdraw its
administration from the territory, and other states members ofthe United
Nations were obliged to recognise the illegality and the invalidity of its
acts with regard to that territory and aid the United Nations in its efforts
concerning the pr0b1em.l~~
The opinion was approved by the Security Council in resolution 301(1971), which also reaffirmed the national unity and territorial integrityof Namibia. In 1978 South Africa announced its acceptance of proposals negotiated by the five Western contact powers (UK, USA, France,
Canada and West Germany) for Namibian independence involving a UN
supervised election and peace-keeping force.139After some d i f f i c ~ l t i e s , ' ~ ~Namibia finally obtained its independence on 23 April 1990.141
Germany 1945
With the defeat of Germany on 5 June 1945, the Allied Powers assumed 'supreme authority' with respect to that country, while expressly
Resolution 2145 (XXI).

'j5 See General Assembly resolutions 2145 (XXI) and 2248 (XXII).
See e.g. Security Council resolutions 263 (19691, 269 (1969) and 276 (1970).
'" ICJ Reports, 1971, pp. 52-8.
17 ILM, 1978, pp. 762-9, and DUSPIL, 1978, pp. 38-54. See Security Council resolution
435 (1978). See also Africa Research Bulletin, April 1978, p. 4829 and July 1978, p. 4935.
14' See Sl14459; Sl14460lRev. 1; Sl14461 and Sl14462.
'" See 28 ILM, 1989, p. 944.

"'ICJ Reports, 1971, p. 16; 49 ILR, p. 3.

T H E S U B I E C T S OF INTERNATIONAL LAW

20 5

disclaiming any intention of a n n e ~ a t i 0 n . Germanyl~~
was divided into
four occupation zones with four-power control over Berlin. The Control
Council established by the Allies acted on behalf of Germany and in suchcapacity entered into binding legal arrangements. The state of Germany
continued, however, and the situation, as has been observed, was akinto legal representation or agency of necessity.'" Under the 1952 Treaty
between the three Western powers and the Federal Republic of Germany,full sovereign powers were granted to the latter subject to retained powers concerning the making of a peace treaty, and in 1972 the Federal
Republic of Germany and the German Democratic Republic, establishedin 1954 by the Soviet Union in its zone, recognised each other as sovereignstates.'44
However, following a series of dramatic events during 1989 in Central
and Eastern Europe, deriving in essence from the withdrawal of Soviet
control, the drive for a reunified Germany in 1990 became ~ n s t o p p a b l e . ' ~ ~A State Treaty on German Economic, Monetary and Social Union was
signed by the Finance Ministers of the two German states on 18 May andthis took effect on 1 ~ u 1 y . A
l ~State~
Treaty on Unification was signed
on 31 August, providing for unification on 3 October by the accession to the Federal Republic of Germany of the Lander of the German
Democratic Republic under article 23 of the Basic Law of the Federal
Republic, with Berlin as the capital.14' The external obstacle to unity
was removed by the signing on 12 September of the Treaty on the Final
Settlement with Respect to Germany, between the two German states
and the four wartime allies (UK, USA, USSR and ~ r a n c e ) . Under' ~ ~ thistreaty, a reunified Germany agreed to accept the current Oder-Neisse
See Whiteman, Digest, vol. I, pp. 325-6, and R. It'. Piotrowicz, 'The Status of Germany
in International Law', 38 ICLQ, 1989, p. 609.
14'
Brownlie, Principles, p. 107. See also Whiteman, Digest, p. 333, and I. D. Hendry and
M. C. Wood, The Legal Status of Berlin, Cambridge, 1987.
'44 12 AD, p. 16. Note also Kunstsarn~rllurigenzn W i n e r v . Elicofori 94 ILR, p. 135. Both states
became members of the UN the following year. See Crawford, Creation of Statehood, pp.
273-81, and F. A. Mann, Studies in International Law, Oxford, 1973, pp. 634-59 and
660-706.
145 See e.g. J. Frowein, 'The Reunification of Germany', 86 AJIL, 1992, p. 152; Schrike,'L'Unification Allemande', p. 47; Czaplinski, 'Quelques Aspects: p. 89, and R. Mr.
Piotrowicz and S. Blay, The Uriificatiori of Gernlarly in International and Donlestic Latv,
Amsterdam, 1997.
146 See Keesingk Record of World Events, p. 37466 (1990). See also 29 ILM, 1990, p. 1108.
14' Keesing's, p. 37661. See also 30 ILM, 1991, pp. 457 and 498.
148 See 29 ILM, 1990, p. 1186.
14'

206

I N T E R N A T I O N A L LAW

border with Poland and to limit its armed forces to 370,000 persons,while pledging not to acquire atomic, chemical or biological weapons.
The Agreement on the Settlement of Certain Matters Relating to Berlin
between the Federal Republic and the three Western powers on 25 September 1990 provided for the relinquishment of Allied rights with regard to~er1in.I~'

Condominium
In this instance two or more states equally exercise sovereignty with respect to a territory and its inhabitants. There are arguments as to therelationship between the states concerned, the identity of the sovereign
for the purposes of the territory and the nature of the competences in~ o l v e d . ' ~In' the case of the New Hebrides, a series ofAnglo-French agreements established a region of joint influence, with each power retaining
sovereignty over its nationals and neither exercising separate authority
over the area.'" A Protocol listed the functions of the condominial government and vested the power to issue joint regulations respecting themin a British and a French High Commissioner. This power was delegated toresident commissioners who dealt with their respective nationals. Three
governmental systems accordingly co-existed, with something of a legal
vacuum with regard to land tenure and the civil transactions of the indigenous population.15"he process leading to the independence of theterritory also reflected its unique status as a condominium.153It was notedthat the usual independence Bill would not have been appropriate, since
the New Hebrides was not a British colony. Its legal status as an AngloFrench condominium had been established by international agreement
and could only be terminated in the same fashion. The nature of thecondominium was such that it assumed that the two metropolitan powers would always act together and unilateral action was not provided for
See 30 ILM, 1991, p. 445. See also the Exchange of Notes of the same date concerning thepresence of allied troops i11 Berlin, ibid., p. 450.
Brownlie, Principles, pp. 114-15. See also O'Connell, International Law, pp. 327-8;
A. Coret, Le Condoniiniurn, Paris, 1960; Oppenheim's International Law, p. 565, and V. P.
Bantz, 'The Inter~latio~lal
Legal Status of Condo~ninia:12 Florida Journal of InternationalLaw, 1998, p. 77.
15' See e.g., 99 BFSP, p. 229 and 114 BFSP, p. 212.
'j2 O'Connell, Interrlutional Law, p. 328.
Lord Trefgarne, the government spokesman, moving the second reading of the New
Hebrides Bill in the House of Lords, 404 HL Deb., cols. 1091-2,4 February 1980.
14'

T H E S U B I E C T S OF INTERNATIONAL LAW

zo7

in the basic constitutional document^.'^^ The territory became independent on 30 July 1980 as the state of Vanuatu. The entity involved prior toindependence grew out of an international treaty and established an administrative entity arguably distinct from its metropolitan governments
but more likely operating on the basis of a form of joint agency with arange of delegated powers."'
The Central American Court of Justice in 1 9 1 7 ~ 'held~ that a condominium existed with respect to the Gulf of Fonseca providing for rights
of co-ownership of the three coastal states of Nicaragua, El Salvador and
Honduras. The issue was raised in the El Salvador/Hondurascase before theInternational Court of ~ustice."~
The Court noted that a condominium
arrangement being 'a structured system for the joint exercise of sovereign
governmental powers over a territory' was normally created by agreement
between the states concerned, although it could be created as a juridical
consequence of a succession of states (as in the Gulf of Fonseca situation
itself), being one of the ways in which territorial sovereignty could passfrom one state to another. The Court concluded that the waters of the
Gulf of Fonseca beyond the three-mile territorial sea were historic waters
and subject to a joint sovereignty of the three coastal states. It based its
decision, apart from the 1917 judgment, upon the historic character of
the Gulf waters, the consistent claims of the three coastal states and theabsence of protest from other states.'''International territories
In such cases a particular territory is placed under a form of international
regime, but the conditions under which this has been done have varied'" See Mr Luce, Foreign Office Minister, 980 HC Deb., col. 682, 8 March 1980 and 985 HCe
See also D. P. O'Connell, 'The Condominium of the New
Deb., col. 1250, 3 J ~ m 1980.
Hebrides: 43 BYIL, p. 71.
155 See also the joint Saudi Arabian-K~nvaiti administered Neutral Zone based on the treatyof 2 December 1922, 133 BFSP, 1930 Part 11, pp. 726-7. See e.g. The Middle East (ed.
P. Mansfield), 4th edn, London, 1973, p. 187. Both states enjoyed an equal right of
undivided sovereignty over the whole area. However, on 7 J~lly1965, both states signed
an agreement to partition the neutral zone, although the territory apparently retained its
condoininiuin status for exploration of resources purposes: see 4 ILM, 1965, p. 1134, andH. M. Albaharna, The Legal Status of the Arabian Gulfstates, 2nd rev. edn, Beirut, 1975,
pp. 264-77.
11 AJIL, 1917, p. 674.
lS7 ICJ Reports, 1992, pp. 351,597 ff.; 97 ILR, pp. 266,513 ff. El Salvador and Nicaraguawere
parties to the 1917 decision but differed over the condoininium solution. Honduras was
not a party to that case and opposed the condoininiuin idea.
ICJ Reports, 1992, p. 601; 97 ILR, p. 517.

208

I N T E R N A T I O N A L LAW

widely, from autonomous areas within states to relatively independent
entities.159The UN is able to assume the administration of territories in
specific circumstances. The trusteeship system was founded upon the supervisory role of the UN,'~' while in the case of South West Africa, theGeneral Assembly supported by the Security Council ended South Africa's
mandate and asserted its competence to administer the territory pending
independence.Ih' Beyond this, UN organs exercising their powers may
assume a variety of administrative functions over particular territories
where issues of international concern have arisen. Attempts were made tocreate such a regime for Jerusalem under the General Assembly partition
resolution for Palestine in 1947 as a 'corpus separatum under a special international regime. . . administered by the United Nations', but this nevermaterialised for a number of r e a ~ 0 n s . Further,l~~
the Security Council in1947 adopted a Permanent Statute for the Free Territory of Trieste, under which the Council was designated as the supreme administrative andlegislative authority of the territory.'63
More recently, the UN has become more involved in important administrative functions, authority being derived from a mixture of international agreements, domestic consent and the powers of the Security
Council under Chapter VII to adopt binding decisions concerning international peace and security, as the case may be. For example, the 1991
Paris Peace Agreements between the four Cambodian factions authorised
the UN to establish civil administrative functions in that country pending
elections and the adoption of a new constitution. This was accomplishedthrough the UN Transitional Authority in Cambodia (UNTAC), to whichwere delegated 'all powers necessary to ensure the implementation' of thepeace settlement and which also exercised competence in areas such as
foreign affairs, defence, finance and so forth.'(j4See M. Ydit, Internationalised Territories, Leiden, 1961; Crawford, Creation of Statehood,
pp. 160-9; Brownlie, Priizciples, pp. 61 and 172, and Rousseau, Droithlternational Public,
vol. 11, pp. 413-48.
See further above, p. 201.
161 See above, p. 203.
162 Resolution 18(II).See e.g. E. Lauterpacht, Jer~~salernand the Holy Places, London, 1968
and Ydit, Irzterrzationalised Territories, pp. 273-314.
16' See Security Council resolution 16 (1947). Like the Jerusalem idea, this never came into
being. See also the experiences of the League of Nations with regard to the Saar andDanzig, Ydit, blternatiorlalised Territories, chapter 3.
16"eeArticle 6 and Annex I of the Paris Peace Settlement. See also C. Stahn, 'International Territorial Administration in the Former Yugoslavia: Origins, Developinents and Challenges Ahead: ZaoRV, 2001, p. 107. UNTAC lasted from March
1992 to September 1993 and involved some 22,000 military and civilian personnel: see http:i/wcvw.ui~.org/Depts/dpko/dpkoico-n~ission/untac.htn~.
Note also e.g. theT H E S U B I E C T S OF INTERNATIONAL LAW

209

Annex 10 ofthe General Framework Agreement for Peace in Bosnia and~ e r z e g o v i n a lestablished~jthe post of High Representative with extensive
powers with regard to the civilian implementation of the peace agreement
and with the final authority to interpret the civilian aspects of the settlement.Ib6This was endorsed and confirmed by the Security Council inbinding resolution 1031 (1995). The High Representative's authority waselaborated upon by the fifty-five members of the Peace Implementation
Council, which reviews progress regarding the peace settlement.lb7This
unusual structure with regard to an independent state arises, therefore,
from a mix of the consent of the parties and binding Chapter VII activity
by the Security Council.
In resolution 1244 (1999), the Security Council authorised theSecretary-General to establish an interim international civil presencein Kosovo ( ~ ~ ~ ~ ~ ) , ~ ~ " o l the
l o wwithdrawal
ingof Yugoslav forcesfrom that part of the country consequent upon NATO action. Under
this resolution, UNMIK performs a wide range of administrative functions, including health and education, banking and finance, post andtelecommunications, and law and order. It is tasked inter alia to promote the establishment of substantial autonomy and self-government
in Kosovo, to co-ordinate humanitarian and disaster relief, support theoperations of the UN Transition Group in Namibia which, in the process leading toNamibian independence, exercised a degree of administrative power: see Report of the
UN Secretary-General, At4511 ( 1 9 9 1 ) ,and the UN Transitional Administration for Eastern Slavonia (UNTAES),which facilitated the transfer of the territory from Serb to Croat
rule over a two-year period: see Security Council resolution 1037 ( 1 9 9 6 ) .
16' Initialled at Dayton, Ohio, and signed in Paris, 1995.
The final authority with regard to the military inlplementation of the agreement remains
the commander of SFOR: see article 12 of the Agreement on the Military Aspects of the
Dayton Peace Agreement. Note also the establishment of the Human Rights Chamber,the majority of whose members are from other states: see below, chapter 7,p. 353, andthe Commission for Displaced Persons and Refugees: see Annexes 6 and 7 of the Peace
Agreement.
See e.g. the documentation available at http://~.~w.ohr.int/pic/archive.asp!so=d&sa=on.
For example, the High Representative's authority to remove public officials from office for violating legal commitments under the peace agreement and to impose interim legislation where Bosnia's institutions had failed to do so were recognised by
the conclusions of the Council's meeting in Bonn in 1997 and confirmed in Security Council resolution 1144 (1997). See also e.g. resolutions 1256 ( 1 9 9 9 ) and 1423'"'"

(2002).

'" See Stahn, 'International Territorial Administration', p. 11 1; T. Garcia, 'La Missiond'administration Interimaire des Nations Unies au Kosoro', RGDIP, 2000, p. 61, and
M . Ruffert, 'The Administration of Kosovo and East Tiinor by the International Community: 50 ICLQ, 2001, p. 613. See also http://www.ohr.int/piciarchive.asp?so=d&sa=on.
Resolution 1244 also authorised an international military presence.

210

I N T E R N A T I O N A L LAW

reconstruction of key infrastructure, maintain civil law and order, promote human rights and assure the return of refugees. Administrative
structures have been established and elections held. The first regulation
adopted by the Special Representative of the UN Secretary-General appointed under resolution 1244 vested all legislative and executive authority in Kosovo in UNMIK as exercised by the Special ~ e ~ r e s e n t a t i v e . ' ~ 'This regulation also established that the law in the territory was that inexistence in so far as this did not conflict with the international standards referred to in section 2 of the regulation, the fulfilment of themandate given to UNMIK under resolution 1244, or the present or any
other regulation issued by UNMIK. A Constitutional Framework for Provisional Self-Government was promulgated by the Special Representative in May 2 0 0 1 . ~ 'This~ comprehensive administrative competence isfounded upon the reaffirmation of Yugoslavia's sovereignty and territorial integrity (and thus continuing territorial title over the province)
and the requirement for 'substantial autonomy and meaningful selfadministration for Kosovo:"' Accordingly, this arrangement illustrates acomplete division between title to the territory and the exercise of powerand control over it. It flows from a binding Security Council resolution,
which refers to Yugoslavia's consent to the essential principles therein~0ntained.l'~
The United Nations Transitional Administration in East Timor(UNTAET) was established by Security Council resolution 1272 (1999)
acting under Chapter VII. It was 'endowed with overall responsibility forthe administration of East Timor' and 'empowered to exercise all legislative and executive authority, including the administration of ju~tice'."~Its widespread mandate included, in addition to public administration,
humanitarian responsibilities and a military component and it was authorised to take all necessary measures to fulfil its mandate. UNTAET's mandate was extended to 20 May 2002, the date of East Timor's independence
Regulation 1 (1999). This was backdated to the date of adoption of resolutio~l1244.
See UNMIK Regulation 9 (2001).
17' Resolution 1244 (1999).
17' See Sl19991649 and Annex 2 to the resolution.
17' East Timor, a Portuguese non-self-governing territory, was occupied by Indonesia in
1974. These two states agreed ~ v i t hthe UN on 5 May 1999 to a process of popular consultatio~lin the territory over its future. The inhabitants expressed a clear
wish for a transitional process of UN authority leading to independence. Following
force was sent to East T i ~ n o rpursuant to
the outbreak of viole~lce,a ~nulti~latio~lalresolution 1264 (1999): see also the Report of the Secretary-General, Si199911024;

16'
17'

T H E S U B I E C T S OF INTERNATIONAL LAW

211

as the new state of T i m o r - L e ~ t e . It
' ~ ~was thereafter succeeded by theUnited Nations Mission of Support in East Timor (UNMISET).'"

This territory was ceded by China to Japan in 1895 by the treaty of
Shimonoseki and remained in the latter's hands until 1945. Japan undertook on surrender not to retain sovereignty over Taiwan and this wasreaffirmed under the Peace Treaty, 1951 between the Allied Powers (butnot the USSR and China) and Japan, under which all rights to the island
were renounced without specifying any recipient. After the Chinese Civil
War, the Communist forces took over the mainland while the Nationalist
regime installed itself on Taiwan (Formosa) and the Pescadores. Both the
US and the UK took the view at that stage that sovereignty over Taiwan
was uncertain or ~ndetermined."~The key point affecting status has beenthat both governments have claimed to represent the whole of China. No
claim of separate statehood for Taiwan has been made and in such a case
it is difficult to maintain that such an unsought status exists. Total lack ofrecognition of Taiwan as a separate independent state merely reinforces
this point. In 1979 the US recognised the People's Republic of China as thesole and legitimate government of China.178Accordingly, Taiwan would
appear to be a non-state territorial entity which is capable of acting independently on the international scene, but is most probably de jure partSee resolutions 1388 (2001) and 1392 (2002).
'75 See resolution 1410 (2002).

See e.g. China and the Question of Taiwan (ed. H. Chiu), New York, 1979; J\'. M. Reisman,'Who Owns Taiwan?: 81 Yale Law Journal, p. 599; F. P. Morello, The Iriternatio~ialLegal
Status o f Formosa, The Hague, 1966; V. H. Li, De-Recognising Taiwan, Washington, D C ,1977, and L. C. Chiu, 'The International Legal Status of the Republic of China: 8 Chinese
Yearbook of Ir~ternatiorialLaw arid Affairs, 1990, p. 1. See also The International Status
of Taiwan in the New World Order (ed. J. M. Henckaerts), London, 1996; Let Taiwan be
Taiwan (eds. M. 1. Cohen and E. Teng), Washington, 1990, and J. I. Charney and 1. R.
1: Prescott, 'Resolving Cross-Strait Relations Between China and Taiwan', 94 AJIL, 2000,
p. 453.
177 See IVhiteman, Digest, vol. 111, pp. 538, 564 and 565.
17' See Crawford, Creation ofStatehood, p. 145. Note that the 1972 USA-China communiqueaccepted that Taiwan was part of China, 11 ILM, pp. 443, 445. As to the 1979 changes,
see 73 AJIL, p. 227. See also 833 HC Deb., col. 32, 13 March 1972, for the new British
approach, i.e, that it recognised the Government of the People's Republic of China as theentsole legal Government of China and ackno\vledged the position of that g o ~ ~ e r n ~ nthat
Taiwan was a province of China, and see e.g. UKMIL, 71 RYIL, 2000, p. 537. See also Reelv. Holder, [I9811 1 Lt'LR 1226.

212

I N T E R N A T I O N A L LAW

of China. It is interesting to note that when in early 1990 Taiwan sought
accession to the General Agreement on Tariffs and Trade (GATT), it didso by requesting entry for the 'customs territory' of 'Taiwan, Penghu,
Kininen and Matsu', thus avoiding an assertion of stateh00d.l~~
The accession of 'Chinese Taipei' to the World Trade Organisation was approvedby the Ministerial Conference in November 2001.'~'The 'Turkish Republic of Northern Cyprus' (TRNc)"'

In 1974, following a coup in Cyprus backed by the military regime in
Greece, Turkish forces invaded the island. The Security Council in resolution 353 (1974) called upon all states to respect the sovereignty, independence and territorial integrity of Cyprus and demanded an immediate
end to foreign military intervention in the island that was contrary to suchrespect. On 13 February 1975 the Turkish Federated State of Cyprus wasproclaimed in the area occupied by Turkish forces. A resolution adopted at
the same meeting ofthe Council of Ministers and the Legislative Assemblyof the Autonomous Turkish Cypriot Administration at which the proclamation was made, emphasised the determination 'to oppose resolutely all
attempts against the independence of Cyprus and its partition or unionwith any other state' and resolved to establish a separate administration
until such time as the 1960 Cyprus Constitution was amended to provide
for a federal republic.ls2
On 15 November 1983, the Turkish Cypriots proclaimed their independence as the 'Turkish Republic of Northern ~ y p r u s ' . 'This~ ~ was declaredillegal by the Security Council in resolution 541 (1983)and its withdrawal
called for. All states were requested not to recognise the 'purported state'
See Keesirlg's Record of World Events, p. 37671 (1990). This failed, however, to preventa vigorous protest by China: ibid. Note also the Agreements Concerning Cross-Straits
Activities between unofficial organisations established in China and Taiwan in order toreach functional, non-political agreements, 32 ILhf, 1993, p. 1217. A degree of evolution
in Taiwan's approach was evident in the Additional Articles of the Constitution adopted
in 1997.
lS0 See h t t ~ : l l m . ~ ~ t o . o r g l e n g l i ~ h l n e w ~ ~ e / p r e s O l ~ e l ~As~ rto
2 5Rhodesia
3 e h t m (1965-79)
and the Bantustans, see above, pp. 184 and 181.
IS' See Z. M. Necatigil, The Cyprus Question and the Turkish Positiorl in International Law,
2nd edn, Oxford 1993; G. White, The World Today, April 1981, p. 135, and Crawford,
Creation of Statehood, p. 118.
l X 2 Resolution No. 2 in Supplement I\! Official Gazette of the TFSC, cited in Nadjatigil,
Cyprux Conflict, p. 123.
18' See The Times, 16 November 1983, p. 12, and 21(4) UNChronicle, 1984, p. 17.

T H E S U B I E C T S OF INTERNATIONAL LAW

213

or assist it in any way. This was reiterated in Security Council resolution
550 (1984). The Committee ofMinisters ofthe Council ofEurope decided
that it continued to regard the government of the Republic of Cyprus as
the sole legitimate government of Cyprus and called for respect for the
independence and territorial integrity of Cyprus.'84The European Courtof Human Rights in its judgment of 10 May 2001 in Cyprus v. Turkey
concluded that, 'it is evident from international practice.. .that the international community does not recognise the "TRNC" as a state underinternational law' and declared that 'the Republic of Cyprus has remained
the sole legitimate government ofIn the light of this and thevery heavy dependence of the territory upon Turkey, it cannot be regarded
as a sovereign state, but remains as a de facto administered entity within
the recognised confines of the Republic of Cyprus and dependent upon
Turkish as~istance."~

The Saharan Arab Democratic ~ e p u b l i c ' ~ ~In February 1976, the Polisario liberation movement conducting a war
to free the Western Saharan territory from Moroccan control declared
the independent sovereign Saharan Arab Democratic ~ e p u b l i c . Over'~~the succeeding years, many states recognised the new entity, including amajority of Organisation of African Unity members. In February 1982,
the OAU Secretary-General sought to seat a delegation from SADR on
that basis, but this provoked a boycott by some nineteen states and a major crisis. However, in November 1984 the Assembly of Heads of Stateand Government of the OAU did agree to seat a delegation from SADR,
despite Morocco's threat of withdrawal from the ~ r ~ a n i s a t i o nThis,.'~~
therefore, can be taken as OAU recognition of statehood and, as such,of major evidential significance. Indeed, in view of the reduced importance of the effectiveness of control criterion in such self-determination
lS4

Resolution (83)13 adopted o n 24 November 1983.

la5 Application No. 25781194; 120 ILR, 17. 10. See Loizidouv. Turkey (Preliminary Objections),

Series A, No. 310, 1995; 103 ILR, p. 622, and Loizidouv. Turkey (iMeritsj, Reports 1996-VI,
p. 2216; 108 ILR, 17. 443. See also to the same effect, Autocephalous Church of Cyprus v.
Goldberg917F.2d278 (1990); 108 ILR,p. 488, and Caglarv. Billingham [I9961 STC (SCD)
150; 108 ILR, p. 510.
l X 6 See also Foreign Affairs Committee, Third Report, Session 1986-7, Cyprus: HCP 23(1986-7).
l X 7 See Shau: Title, chapter 3.
lX8 Africa Research Bulletin, June 1976, p. 4047 and July 1976, pp. 4078 and 4081.
18"eeKeesingi Contemporary Archives, pp. 33324-45.

214

I N T E R N A T I O N A L LAW

situations, a strong argument can now be made regarding SADR's statehood, although the issue is still controversial, particularly in view of thecontinuing hostilities.

Associations of states
There are a number of ways in which states have become formally associated with one another. Such associations do not constitute states but
have a certain effect upon international law. Confederations, for example,
are probably the closest form of co-operation and they generally involve
several countries acting together by virtue of an international agreement,with some kind of central institutions with limited functions.'" This is
to be contrasted with federations. A federal unit is a state with strong centralised organs and usually a fairly widespread bureaucracy with extensive
powers over the citizens of the state, even though the powers of the state
are divided between the different units.lgl However, a state may comprisecomponent units with extensive powers.lg2
There are in addition certain 'associated states' which by virtue of theirsmallness and lack of development have a close relationship with another state. One instance is the connection between the Cook Islands
and New Zealand, where internal self-government is allied to external
dependence.lg3Another example was the group of islands which constituted the Associated States of the West Indies. These were tied to
the United Kingdom by the terms of the West Indies Act 1967, which
provided for the latter to exercise control with regard to foreign andNote, for example, the Preliminary Agreement Concerning the Establishment of a Confederation between the Federation of Bosnia and Herzegovina and the Republic of Croatia,
1994,33 ILM, 1994, p. 605. This Agreement 'anticipated' the creation of a Confederation,
but provides that its 'establishment shall not change the international identity or legal
personality of Croatia or of the Federation'. The Agreement provided for co-operation
between the parties in a variety of areas and for Croatia to grant the Federation of Bosnia
and Herzegovina free access to the Adriatic through its territory. This Confederation did
not come about.
l9' See Crawford, Creation of Statehood, p. 291, and above, p. 139. See also with regard to the
proposed arrangement between Gambia and Senegal, 21 ILM, 1982, pp. 44-7.
19' See e.g. the Dayton Peace Agreement 1995, Annex 4 laying down the constitution of
Bosnia and Herzegovina as an independent state consisting oftwo Entities, the Federationof Bosnia and Herzegovina and the Republika Srpska. The boundary between the two
Entities was laid down in Annex 2.
Crawford, Creation of Statehood, pp. 372-4. See also as regards Puerto Rico and Niue,
ibid.

'"

T H E S U B ~ E C T SO F I N T E R N A T I O N A L L AW

215

defence issues. Nevertheless, such states were able to and did attain their
independen~e.'~~The status of such entities in an association relationship with a state
will depend upon the constitutional nature of the arrangement and may
in certain circumstances involve international personality distinct fromthe metropolitan state depending also upon international acceptance. It
must, however, be noted that such status is one ofthe methods accepted by
the UN of exercising the right to self-determinati~n.'~~Provided that an
acceptable level of powers, including those dealing with domestic affairs,
remain with the associated state, and that the latter may without undue difficulty revoke the arrangement, some degree of personality would
appear desirable and acceptable.
The Commonwealth of Nations (the former British Commonwealth)is perhaps the most well known of the loose associations which group
together sovereign states on the basis usually of common interests andhistorical ties. Its members are all fully independent states who cooperate through the assistance of the Commonwealth Secretariat andperiodic conferences of Heads of Government. Regular meetings of particular ministers also take place. The Commonwealth does not constitute a legally binding relationship, but operates as a useful forum fordiscussions. Relations between Commonwealth members display certain
special characteristics, for example, ambassadors are usually referred to
as High Commissioners. It would appear unlikely in the circumstancesthat it possesses separate international per~ona1ity.l~~However, the morethat the Commonwealth develops distinctive institutions and establishes
common policies with the capacity to take binding decisions, the more
the argument may be made for international legal personality.
Following the dissolution of the Soviet Union and the coming to independence of the constituent Republics, with the Russian Federation being
deemed the continuation of the Soviet Union, it was decided to establish the Commonwealth of Independent
Originally formed by
194 See e.g. J. E. S. Fawcett, Annual Stlr~leyof Cornrnotlwealtll Law, London, 1967, pp. 709-11.
19'See, with regard to the successors of the trust territory of the Pacific, above, p. 201.
Cottlrnonwealth in International Law, London, 1963;
Oppenheim's International Law, p. 256; O'Connell, International Law, pp. 346-56; Whiteman, Digest, vol. I, pp. 476-544; Rousseau, Droitlntertlational Public, vol. 11, pp. 214-64,
and Sale, The Modern Cornmonu~ealth,1983. See also, as regards the French Community,
Whiteman, Digest, pp. 544-82, and O'Connell, International Law, pp. 356-9.
See e.g. 1. Lippott, 'The Con~monwealthof Independent States as an Economic and Legal
Community', 39 German YIL, 1996, p. 334.

196 See J. E. S. Fawcett, The British

'"

216

I N T E R N A T I O N A L LAW

Russia, Belarus and Ukraine on 8 December 1991, it was enlarged on 21
December 1991 to include eleven former Republics of the USSR. Georgia
joined the CIS on 8 October 1993. Thus all the former Soviet Republics,
excluding the three Baltic states, are now members of that o r g a n i ~ a t i o n . ' ~ ~The agreement establishing the CIS provided for respect for human rights
and other principles and called for co-ordination between the member
states. The Charter of the CIS was adopted on 22 June 1993 as a binding international treaty'99 and laid down a series of principles ranging
from respect for the sovereignty and territorial integrity of states, selfdetermination of peoples, prohibition of the use or threat of force andsettlement of disputes by peaceful means. It was noted that the CIS wasneither a state nor 'supranational' (article 1) and a number of common
co-ordinating institutions were established. In particular, the Council ofHeads of State is the 'highest body of the Commonwealth' and it may 'takedecisions on the principal issues relating to the activity of the member
states in the field of their mutual interests' (article 2 I), while the Council ofthe Heads of Government has the function of co-ordinating co-operation
among executive organs of member states (article 22). Both Councils may
take decisions on the basis of consensus (article 23). A Council of Foreign
Ministers was also established together with a Co-ordination and Consultative Committee, as a permanent executive and co-ordinating bodyof the ~ o m m o n w e a l t h The. ~ ~ CIS
~ has adopted in addition a Treaty on
Economic union201and a Convention on Human Rights and Fundamental ~ r e e d o m s . ~The' ~ increasing development of the CIS as a directing
international institution suggests its possession of international legal personality.
The European union203 is an association, of currently fifteen states,
which has established a variety of common institutions and which has thecompetence to adopt not only legal acts binding upon member states but
also acts having direct effect within domestic legal systems. The Union
consists essentially of the European Community (itself an amalgam of
the European Coal and Steel Community, EURATOM and the European'" See 31 ILM, 1992, pp. 138 and 147, and 34 ILM, 1995, p. 1298.
199 See 34 ILM, 1995,p. 1279.

loo Note also the creation of the Council of Defence Ministers, the Council of Frontier Troops

Chief Commanders, an Economic Court, a Commission on Human Rights, an Organ ofBranch Co-operation and an Interparliamentary Assembly (articles 30-5).
'01 24 September 1993, 34 ILM, 1995, p. 1298.
*02 26 May 1995, see Council of Europe Information Sheet No. 36, 1995, p. 195.
'03 Established as such by article A, Title I of the Treaty on European Union (Maastricht)
signed in February 1992 and in force as from 1 January 1993.

T H E S U B I E C T S OF INTERNATIONAL LAW

217

Economic Community) and two additional pillars, viz. the Common Foreign and Security Policy, and Justice and Home Affairs. Only the European
Coal and Steel Community Treaty provided explicitly for international legal personality (article 6))but the case-law ofthe European Court of Justicedemonstrates its belief that the other two communities also possess such
personality.204It is also established that Community law has superiority
over domestic law. The European Court of Justice early in the history of
the Community declared that the Community constituted 'a new legal
order of international law'.205In the circumstances, it seems hard to denythat the Community possesses international legal personality, but unlikelythat the co-operative processes involved in the additional two pillars are
so endowed.206

Conclusions
Whether or not the entities discussed above constitute international persons or indeed states or merely part of some other international person
is a matter for careful consideration in the light of the circumstances of
the case, in particular the claims made by the entity in question, the facts
on the ground, especially with regard to third-party control and the degree of administrative effectiveness manifested, and the reaction of otherinternational persons. The importance here of recognition, acquiescenceand estoppel is self-evident. Acceptance of some international personality
need not be objective so as to bind non-consenting states nor unlimited
as to time and content factors. These elements will be considered below.
It should, however, be noted here that the international community itself
also has needs and interests that bear upon this question as to international status. This is particularly so with regard to matters of responsibility

See e.g. Costa [I9641 ECR 585, 593; Cornrnissionv. Council [I9711 ECR 263,274; Krarner[I9761 ECR 1279, 1308 and Protection uf h~uclearMaterials [1978] ECR 2151, 2179;
The Oxford Encyclopaedia o f European Comrut~nityLaw (ed. A. Toth), Oxford, 1991, p.
351; D. Lasok and J. Bridge, Law and Institutions of the European Union (ed. P. Lasok),
6th edn, London, 1994, chapter 2, and S. Weatherill and P. Beaumont, EU Law, 3rd edn,
London, 1999. See also A. Peters, 'The Position of International Law Within the European
Community Legal Order', 40 German YIL, 1997, p. 9.
Van Gcnd en Loos v. Nederlandse Admir~istratiedex Belastinger1 [I9631 ECR 1.
206 See e.g. the Second Legal Adviser of the Foreign and Commonwealth Office, UKMIL,
63 BYIL, 1992, p. 660. But see also Oppenlleim's International Law, p. 20. Note also theEuropean Court ofJustice's Opinion No. 1 /94, Cornmunity Competence to Conclude Certain
International Agreements [I9941 ECR 1-5276.
'04

"'

218

I N T E R N A T I O N A L LAW

and the protection of persons via the rules governing the recourse to andconduct of armed conflicts.207

Special cases

The Sovereign Order of Malta
This Order, established during the Crusades as a military and medical association, ruled Rhodes from 1309 to 1522 and was given Malta by treaty
with Charles V in 1530 as a fief of the Kingdom of Sicily. This sovereignty
was lost in 1798, and in 1834 the Order established its headquarters inRome as a humanitarian ~ r ~ a n i s a t i oThen . ~Order~ ~ already had international personality at the time of its taking control of Malta and even when
it had to leave the island it continued to exchange diplomatic legations
with most European countries. The Italian Court of Cassation in 1935
recognised the international personality of the Order, noting that 'themodern theory of the subjects of international law recognises a numberof collective units whose composition is independent of the nationality of
their constituent members and whose scope transcends by virtue of their
universal character the territorial confines of any single stateI2O9This ispredicated upon the functional needs of the entity as accepted by third
parties. It is to be noted, for example, that the Order maintains diplomatic
relations with over forty states.

The Holy See and the Vatican city2''
In 1870, the conquest of the Papal states by Italian forces ended their existence as sovereign states. The question therefore arose as to the status
in international law of the Holy See, deprived, as it then was, of normal
As to the specific regime established in the Antarctica Treaty, 1959, see below, p. 456. See
also below, p. 566, with regard to the International Seabed Authority under the Law of
the Sea Convention, 1982.
'08 Oppuzheini's International Law, p. 329, note 7; O'Connell, blterilational Latv, pp. 85-6,
and Whiteman, Digest, vol. I, pp. 584-7.
'09 Narini v. Pace and the Sovereign Order of Malta 8 AD, p. 2. See also Scarfo v. Sovereign
Order ofMalta 24 ILR, p. 1 and Sovel.eigrz Order ofMalta v. Soc. An. Conzrnerciale 22 ILR,
p. 1 .
* l o See Oppenheirn's International Law, p. 325; Crawford, Creation of Statehood, pp. 152-60;
Rousseau, Droit International Public, vol. 11, pp. 353-77; Le Saint-Siege duns les Relations
Internationales (ed. 1. P. D'Onorio), Aix-en-Provence, 1989, and R. Graham, Vatican
Diplomacy: A Stud)) of Church and State on the International Plane, Princeton, 1959. See
also Nguyeil Quoc Dinh et al., Droit International Public, p. 455.
lo'

T H E S U B I E C T S OF INTERNATIONAL LAW

219

territorial sovereignty. In 1929 the Lateran Treaty was signed with Italy
which recognised the state of the Vatican City and 'the sovereignty of theHoly See in the field of international relations as an attribute that pertains
to the very nature of the Holy See, in conformity with its traditions andwith the demands of its missibn in the
The question thus interrelates with the problem of the status today of the Vatican City. The latterhas no permanent population apart from Church functionaries and exists
only to support the work of the Holy See. Italy carries out a substantial
number of administrative functions with regard to the City. Some writers accordingly have concluded that it cannot be regarded as a state.212
Nevertheless, it is a party to many international treaties and is a memberof the Universal Postal Union and the International Telecommunications
Union. It would appear that by virtue of recognition and acquiescencein the context of its claims, it does exist as a state. The Vatican City isclosely linked with the Holy See and they are essentially part of the same
construct.
The Holy See continued after 1870 to engage in diplomatic relations
and enter into international agreements and concordats.213Accordingly
its status as an international person was accepted by such partners. In its
joint eleventh and twelfth report submitted to the UN Committee on the' ~ Holy See reminded
Elimination of Racial Discrimination in 1 9 9 3 , ~thethe Committee of its 'exceptional nature within the community of nations;as a sovereign subject of international law, it has a mission of an essentiallyreligious and moral order, universal in scope, which is based on minimal
territorial dimensions guaranteeing a basis of autonomy for the pastoral
ministry of the Sovereign ont tiff'.^"Insurgents and belligerents
International law has recognised that such entities may in certain circumstances, primarily dependent upon the de facto administration of specific
130 BFSP,p. 791. See also O'Connell, InternationalLaw,p. 289, and ReMarcinkus, Mennirzi
and De Strobel 87 ILR, 17. 48.
See Crawford, Creation of Statehood, p. 154, and M. Mendelson, 'The Diminutive Statesin the United Nations: 21 ICLQ, 1972, p. 609. See also Brownlie, Principles, p. 64.
See e.g, the Fundamental Agreement between the Holy See and the State of Israel of 30
December 1993,33 ILM, 1994, p. 153.
214 CERDICI226IAdd. 6 (15 February 1993).
"5 See also the decision of the Philippines Supreme Court (en banc) in The Holy See v.
Starbright Sales Enterprises Inc. 102 ILR, p. 163.

220

I N T E R N A T I O N A L LAW

territory, enter into valid arrangementse2161n addition they will be boundby the rules of international law with respect to the conduct of hostilities
and may in due course be recognised as governments. The traditional law
is in process of modification as a result of the right to self-determination,and other legal principles such as territorial integrity, sovereign equality
and non-intervention in addition to recognition will need to be taken into
account.217

National liberation movements (NLMs)
The question of whether or not NLMs constitute subjects of international law and, if so, to what extent, is bound up with the developmentof the law relating to non-self-governing territories and the principle ofself-determination. The trusteeship system permitted the hearing of individual petitioners and this was extended to all colonial territories. In
1977, the General Assembly Fourth Committee voted to permit representatives of certain NLMs from Portugal's African territories to participate in its work dealing with such territories.218The General Assembly
endorsed the concept of observer status for liberation movements recognised by the Organisation of African Unity in resolution 2918 (XVII).
In resolution 3247 (XXIX), the Assembly accepted that NLMs recognised by the OAU or the Arab League could participate in Assembly sessions, in conferences arranged under the auspices of the Assembly andin meetings of the UN specialised agencies and the various Assemblyorgans.219
The inclusion of the regional recognition requirement was intended
both to require a minimum level of effectiveness with regard to the organisation concerned before UN acceptance and to exclude in practiceSee Oppenheiin's IilterilationalLa~v,p. 165; Lauterpacht, Recognition, pp. 494-5; Brownlie,
Principles, pp. 6 3 4 , andT. C. Chen, Recognition, London, 1951. See also Cassese, International Law, p. 66; S. C. Neff, 'The Prerogatives of Violence - In Search of the Conceptual
Foundations of Belligerents' Rights: 38 German YIL, 1995, p. 41, and Neff, The Rights
and Duties of Neutrals, Manchester, 2000, pp. 200 ff.
See below, p. 1036.
'la See M. N. Shaw, 'The International Status of National Liberation Movements: 5 Liverpool
Law Review, 1983, p. 19, and R. Ranjeva, 'Peoples and National Liberation Movements'
in International Latv: Achieverrlents and Prospects (ed. M. Bedjaoui), Paris, 1991, 17. 101.
See also Cassese, International Law, p, 75, and H. Wilson, International Laiv and the Uxeof Force by National Liberation Movements, Oxford, 1988.
* ' w i l e the leader of the PAIGC was not permitted to speak at the Assembly in 1973, theleader of the PLO was able to address the body in 1974: see AlC.4lSR.1978 p. 23 andresolution 3237 (XXIX).
'I6

T H E S U B I E C T S OF INTERNATIONAL LAW

221

secessionist movements. The Economic and Social Committee of the UN
has also adopted a similar approach and under its procedural rules it may
invite any NLM recognised by or in accordance with General Assembly
resolutions to take part in relevant debates without a vote.220
The UN Security Council also permitted the Palestine Liberation Organisation (PLO) to participate in its debates with the same rights ofparticipation as conferred upon a member state not a member of the Security Council, although this did raise serious constitutional questions.22'
Thus the possibility of observer status in the UN and related organs for
NLMs appears to have been affirmatively settled in international practice.
The question of international personality, however, is more complex andmore significant, and recourse must be made to state practice.222Whether
extensive state recognition of a liberation movement is of itself sufficient
to confer such status is still a controversial issue.
The position of the PLO, however, began to evolve considerably with
the Israel-PLO Declaration of Principles on Interim Self-Government Arrangements signed in Washington on 13 September 1 9 9 3 . By
~ ~virtue~of
this Declaration, the PLO team in the Jordanian-Palestinian delegation
to the Middle East Peace Conference was accepted as representing thePalestinian people. It was agreed to establish a Palestinian Interim SelfGovernment Authority as an elected Council for the Palestinian people in
the West Bank and Gaza (occupied by Israel since 1967) for a transitional
period of up to five years leading to a permanent solution. Its jurisdiction
was to cover the territory of the West Bank and Gaza, save for issues to benegotiated in the permanent status negotiations. Upon the entry into force
ofthe Declaration, a transfer of authoritywas to commence from the Israel
military government and its civil administration. The Cairo Agreement

ECOSOC resolution 1949 (LVII), 8 May 1975, rule 73. See also, as regards the Human
Rights Commission, CHRIRes.19 (XXIX). The General Assembly and ECOSOC havealso called upon the specialised agencies and other UN-related organisations to assist
the peoples and N L M ~of colonial territories: see e.g. Assembly resolutions 33141 and35129.
See Yearbook of the UN, 1972, p. 70 and 1978, p. 297; SIPV 1859 (1975); SIPV 1870
(1976); UN Chronicle, April 1982, 17. 16, and DUSPIL, 1975, pp. 73-5. See also Shaw,'International Status:
222 See the LTNHeadquarters Agreerrlent case, ICJ Reports, 1988,p. 12; 82 ILR, p. 225.
223 32 ILM, 1993, p. 1525. Note that letters of mutual recognition and conlmitment to thepeace process were exchanged between the Prime Minister of Israel and the Chairmanof the PLO on 9 September 1993. See e.g. K. Calvo-Goller, 'L'Accord du 13 Septembre
1993 entre L'Israel et 1'OLP: Le Regime d'Autonomie Prevu par la Declaration IsraellOLP:
AFDI, 1993, p. 435.

O'

"'

222

I N T E R N A T I O N A L LAW

of 4 May 1 9 9 4 provided~ ~ ~ for the immediate withdrawal of Israeli forcesfrom Jericho and the Gaza Strip and transfer of authority to a Palestinian
Authority. This Authority was to have certain specified legislative, executive and judicial powers. The process continued with a transfer of further
powers and responsibilities in a Protocol of 27 August 1995 and with theInterim Agreement on the West Bank and Gaza of 28 September 1995,
under which an additional range of powers and responsibilities was transferred to the Palestinian Authority pending the election of the Council
and arrangements were made for Israeli withdrawal from a number ofcities and villages on the West ~ a n k An
. ~accord~ ~ concerning Hebron
followed in 1 9 9 7 and~ ~ the~ Wye River agreement in 1998, both marking
further Israeli redeployments, while the Sharm el Sheikh memorandum
and a later Protocol of 1999 concerned safe-passage arrangements be~'~tween the Palestinian Authority areas in Gaza and the West ~ a n k . The
increase in the territorial and jurisdictional competence of the Palestinian
Authority established as a consequence of these arrangements raised thequestion of legal personality. While Palestinian statehood has clearly not
been accepted by the international community, the Palestinian Authority can be regarded as possessing some form of limited international
personality.228
As far as Namibia was concerned, the territory was regarded as having an international status22gand there existed an NLM recognised as
the authentic representative of the people2'' but it was, theoretically, administered by the UN Council for Namibia. This body was established in1967 by the General Assembly in order to administer the territory andto prepare it for independence; it was disbanded in 1990. There were224

33 ILM, 1994, p. 622.

"' See e.g. &I. Benchikh, 'L'Accord Interimaire Israelo-Palestinien sur la Cisjordanie et la
"6

"'
'"

"'

'''

bande de Gaza du 28 September 19953 AFDI, 1995, p. 7, and The Arab-Israeli Accords:
Legal Perspectives (eds. E . Cotran and C. Mallat), The Hague, 1996.
See e.g. A. Bockel, 'L'Accord d'Hebron (17 janvier 1997) et la Tentative de Relance duProcessus de Paix Israelo-Palestinien', AFDI, 1997, p. 184.
See A. Bockel, 'L'Issue du Processus de Paix Israelo-Palestinien en Vue?', AFDI, 1999, p.
165.
See e.g. K. Reece Thomas, 'Non-Recognition, Personality and Capacity: The Palestine
Liberation Organisation and the Palestinian Authoritgin English Law', 29 Anglo-American
Law Review, 2000, p. 228; Netv Political Entities in Public and Private International Latr
With Special Reference to the Palestinian Entity (eds. A. Shapiro and M. Tabory), The
Hague, 1999, and C. Wasserstein Fassberg, 'Israel and the Palestinian Authority', 28 Israel
Laiv Review, 1994, p. 319.
The Nurnibia case, ICJ Reports, 1971, p. 16; 49 ILR, p. 3.
Assembly resolution 3295 (XXIX).

T H E S U B I E C T S OF INTERNATIONAL LAW

223

thirty-one UN member states on the Council, which was responsible tothe ~ e n e r a l ~ s s e m b l yThe
. ~ ~Council'sought to represent Namibian interests in international organisations and in conferences, and issued travel
and identity documents to Namibians which were recognised by moststates.232In 1974, the Council issued Decree No. 1 which sought to forbid
the exploitation under South African auspices of the territory's resources,
but little was in practice achieved by this Decree, which was not draftedin the clearest possible manner.233The status of the Council was unclear,but it was clearly recognised as having a role within the UN context andmay thus have possessed some form of qualified personality.

International public cornpunies
This type of entity, which may be known by a variety of names, for example multinational public enterprises or international bodies corporate, ischaracterised in general by an international agreement providing for cooperation between governmental and private enterprises.234One writer,
for example, defined such entities as corporations whichhave not been constituted by the exclusive application of one national
law; whose members and directors represent several national sovereignties; whose legal personality is not based, or at any rate not entirely, o n thedecision of a national authority or the application of a national law; whose
operations, finally, are governed, at least partially, by rules that d o not stemfrom a single or even from several national laws.'35

Such enterprises may vary widely in constitutional nature and in competences. Examples of such companies would include INTELSAT, established in 1973 as an intergovernmental structure for a global commercial
telecommunications satellite system; Eurofima, established in 1955 byfourteen European states in order to lease equipment to the railway administrations of those states, and the Bank of International Settlement,
created in 1930 by virtue of a treaty between five states, and the host'jl

The UK did not recognise the Council: see 408 HL Deb., col. 758, 23 April 1980.

"'See e.g. 1.F. Engers, 'The UN Travel and Identity Documents for Namibia', 65 AJIL, p. 571.
233 See Decolonisatiori, No. 9, December 1977.

""ee

'"

e.g. D. Fligler, ,Multinational Public Corporations, Washington, DC, 1967; Brownlie,
Principles, pp. 67-9, and D. A. Ijalaye, The Extension of Corporate Personality in Internutional Law, Leiden, 1978, pp. 57-146. See also P. Muchlinski, Multinational Enterprises
and the Law, updated edn, Oxford, 1999.
Cited ill Ijalaye, Corporate Personalitfi p. 69.

Z24

I N T E R N A T I O N A L LAW

country, Switzerland. The personality question will depend upon the differences between municipal and international personality. If the entity
is given a range of powers and is distanced sufficiently from municipal
law, an international person may be involved, but it will require carefulconsideration of the circumstances.

Transnational corporations
Another possible candidate for international personality is the transnational or multinational enterprise. Various definitions exist of this important phenomenon in international relations.236They in essence constituteprivate business organisations comprising several legal entities linked together by parent corporations and are distinguished by size and multinational spread. In the years following the Barcelona Traction case,237an
increasing amount of practice has been evident on the international planedealing with such corporations. What has been sought is a set of guidelines
governing the major elements of the international conduct of these entities.238However, progress has been slow and several crucial issues remain
to be resolved, including the legal effect, if any, of such guideline^.^^' The
See e.g. C. W. Jenks, in Trarlsrlational Law in a Changing Society (eds. W. Friedman, L.
Henkill and 0.Lissitzyn), New York, 1972, p. 70; H. Baade, in Legal Problems o f a Code ofCorlductfor ~MtlltinationulEnterprises (ed. N. Horn), Boston, 1980; J. Charney, 'Transnational Corporations and Developing Public International Law', Duke La~vlournal,1983,
p. 748; F. Rigaux, 'Transnational Corporations' in Bedjaoui, International Low: Achievements and Prospects, p. 121, and Henkin et al., International Law Cases and Materials,
p. 368. See also Muchlinski, Multinational Enterprises.
1CJ Reports, 1970, pp. 3, 46-7; 46 ILR, pp. 178,220-1.
See e.g. OECD Guidelines for Multinational Enterprises, 75 US Dept. State Bull., p. 83(1976), and ILO Tripartite Declaration of Principles concerning IMultinational Enterprises and Social Policy, 17 ILM, pp. 423-30. See also Baade, Legal Problems, pp. 416-40.
Note the OECD Principles of Corporate Governance, 1998 and the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, 2000. See
also the Draft Norms on Responsibilities for Transnational Corporations and Other Business Enterprises with Regard to Human Rights produced by the UN Sub-Commission on
the Promotion and Protection of Human Rights' Sessional Working Group on the working illethods and activities of trailsnational corporations, E1CN.41Sub.212002113,August
2002, and Htlnlan Rights Standards a i ~ dthe Responsibilities of Transnatioizal Corporatioizs(ed. M . Addo), The Hague, 1999.
'j9 See the Draft Code of Conduct produced by the UN Commission on Transnational
Corporations, 22 ILM, pp. 177-206; 23 ILIM, p. 627 and ibid., p. 602 (Secretariat report on
outstanding issues); El1990194 (1990) and the TtTorldBank Guidelines on the Treatment
of Foreign Direct Ii~vestment,31 ILM, 1992, p. 1366. The Cominissioil ceased work in
1993. Note the Andean Group commission decision 292 on a uniform code on Andean
'36

"'

"'

T H E S U B ~ E C T SO F I N T E R N A T I O N A L L AW

225

question of the international personality of transnational corporations
remains an open

The right of all peoples to s e l f - d e t e r r n i n a t i ~ n ~ ~ l

The estublishment of the legul rightThis principle, which traces its origin to the concepts of nationality anddemocracy as evolved primarily in Europe, first appeared in major form
after the First World War. Despite President Wilson's efforts, it was notincluded in the League of Nations Covenant and it was clearly not regarded as a legal principle.242However, its influence can be detected in
the various provisions for m i n ~ r i t ~ p r o t e c t i oandn ~in~ ~the establishmentof the mandates system based as it was upon the sacred trust concept.
In the ten years before the Second World War, there was relatively little
practice regarding self-determination in international law. A number ofinultinational enterprises, 30 ILM, 1991, p. 1295, and the Eastern and Southern African
states charter on a regime of multiilatioilal industrial enterprises, ibid., p. 696. See also
the previous footnote.
240 The Third US Restatement of Foreign Relations Law, St Paul, 1987, p. 126 notes that thetransnational corporation, while an established feature of international life, 'has not yetachieved independent status in international law:
'41 See in general e.g. A. Cassese, Self-Determination ofpeoples, Cambridge, 1995; K. Knop, Diversity and Self-Deternzination in Internntiontil Law, Cambridge, 2002; U . 0. U~nozurike,SelflDetermination in lnfernational Law, Hamden, 1972; A. Rigo-Sureda, The Evolution of the Right of Self-Determination, Leiden, 1973; M . Shukri, The Concept of SelfDetermination in the United lvations, Leiden, 1967; M . Pomerance, Self-Determination in
Law and Practice, Leiden, 1982; Shaw, Title to Territory, pp, 59-144; Crawford, Creationof Statehood, pp. 84-105, and Crawford, 'The General Assembly, the International Court
and Self-Determination' in Fifty Years ofthe International Conrt ofJnstice (eds. A. V. Loweand M. Fitzmaurice), Cambridge, 1996, p. 585; Rousseau, Droit lnternrztional Public, vol.
11, pp. 17-35; Wilson, International Law;Tunkin, Theory, pp. 60-9; and Tomuschat, Xfodern Law of Self-Deterininatioil. See also M . Koskenniemi, 'National Self-Determination
Today: Problems of Legal Theory and Practice', 43 ICLQ, 1994, p. 241; H. Quane, 'The UN
and the Evolving Right to Self-Determination', 47 ICLQ, 1998, p. 537, and W. OfuateyKodjoe, 'Self Determination' in United LVations Legal Order (eds. 0. Schachter and C.
Joyner), Cambridge, 1995, vol. I, p. 349.
See A. Cobban, The Nation-State and National Self-Determination, London, 1969; D. H.
Miller, The Drafting of the Covenant, New York, 1928, vol. 11, pp. 12-13; S. Wanlbaugh,
Plebiscites since the Tliorld War, Washington, 1933, vol. I, p. 42, and Poinerance, SelfDetermination.
'4'
See e.g. I. Claude, National Minorities, Cambridge, 1955, and J. Lador-Lederer, blterilational Group Protection, Leiden, 1968.

'"

226

I N T E R N A T I O N A L LAW

treaties concluded by the USSR in this period noted the principle,244butin the Aaland Islands case it was clearly accepted by both the International Commission of Jurists and the Committee of Rapporteurs dealing
with the situation that the principle of self-determination was not a legal
rule of international law, but purely a political concept.245The situation,
which concerned the Swedish inhabitants of an island alleged to be part ofFinland, was resolved by the League's recognition of Finnish sovereignty
coupled with minority guarantees.
The Second World War stimulated further consideration of the idea
and the principle was included in the UN Charter. Article l ( 2 ) noted as
one of the organisation's purposes the development of friendly relations
among nations based upon respect for the principle of equal rights andself-determination, and article 55 reiterated the phraseology. It is disputed
whether the reference to the principle in these very general terms was
sufficient to entail its recognition as a binding right, but the majority
view is against this. Not every statement of a political aim in the Chartercan be regarded as automatically creative of legal obligations. On theother hand, its inclusion in the Charter, particularly within the context
of the statement of purposes of the UN, provided the opportunity for thesubsequent interpretation of the principle both in terms of its legal effectand consequences and with regard to its definition. It is also to be notedthat Chapters XI and XI1 of the Charter deal with non-self-governing andtrust territories and may be seen as relevant within the context of thedevelopment and definition of the right to self-determination, although
the term is not expressly used.246
Practice since 1945 within the UN, both generally as regards the elucidation and standing of the principle and more particularly as regards
its perceived application in specific instances, can be seen as having ultimately established the legal standing of the right in international law.
This may be achieved either by treaty or by custom or indeed, more
See e.g. the Baltic States' treaties, Martens, Recueil General de Traites, 3rd Series, XI, pp.
864, 877 and 888, and Cobban, Nation-State, pp. 187-218. See also Il%iteman, Digest,
vol. IV, p. 56.
245 LNOJ Supp No. 3, 1920, pp. 5-6 and Doc. B71211681106[\'II], pp. 22-3. See also J. Barros,
The Aaland Islands Question, New Haven, 1968 andverzijl, blternational Law, pp. 328-32.
246 See e.g. O'Connell, Ir~ternationalLaw, p. 312; N . Bentwich and A. Martin, Cornmerltaryon the Charter of the Uhr,New York, 1950, p. 7; D. Nincic, The Problern of Sovereigr~tyin
the Charter and the Practice ofstates, The Hague 1970, p. 22 1; H. Kelsen, Latv of the United
Nations, London, 1950, pp. 51-3, and H. Lauterpacht, International Law and Human
Rights, The Hague, 1950, pp. 147-9. See also Judge Tanaka, South- West Africa cases, ICJ
Reports, 1966, pp. 288-9; 37 ILR, pp. 243,451-2.
'44

T H E S U B I E C T S OF INTERNATIONAL LAW

227

controversially, by virtue of constituting a general principle of law. All
these routes are relevant, as will be seen. The UN Charter is a multilateral treaty which can be interpreted by subsequent practice, while therange of state and organisation practice evident within the UN system
can lead to the formation of customary law. The amount of material dealing with self-determination in the UN testifies to the importance of theconcept and some of the more significant of this material will be briefly
noted.
Resolution 1514 (XV), the Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted in 1960 by eighty-nine
votes to none, with nine abstentions, stressed that:all peoples have the right to self-determination; by virtue of that right they
freely determine their political status and freely pursue their economic,
social and cultural development.

Inadequacy of political, social, economic or educational preparedness
was not to serve as a protest for delaying independence, while attempts
aimed at the partial or total disruption ofthe national unity and territorial
integrity of a country were deemed incompatible with the UN Charter.
This Colonial Declaration set the terms for the self-determination debate
in its emphasis upon the colonial context and its opposition to secession,and has been regarded by some as constituting a binding interpretationof theThe Declaration was reinforced by the establishmentof a Special Committee on Decolonisation, which now deals with all
dependent territories and has proved extremely active, and by the factthat virtually all UN resolutions dealing with self-determination expresslyrefer to it. Indeed, the International Court has specifically referred to
the Colonial Declaration as an 'important stage' in the development ofinternational law regarding non-self-governing territories and as the 'basis
for the process of d e c o l o n i ~ a t i o n : ~ ~ ~In 1966, the General Assembly adopted the International Covenants on
Human Rights. Both these Covenants have an identical first article, declaring inter alia that '[all1 peoples have the right to self-determination. By
virtue of that right they freely determine their political status', while states
parties to the instruments 'shall promote the realisation of the right of
247 See e.g. Brownlie, Principles, p. 600, and 0. Asamoah, The Legal Significance of the Declu-

rations ofthe General Assembly o f the United Nations, The Hague, 1966, pp. 177-85. See
also Shaw, Title, chapter 2.
248 The Western Sahara case, ICT Reports, 1975, pp. 12, 31 and 32; 59 ILR, pp. 14,49.

228

I N T E R N A T I O N A L LAW

self-determination and shall respect that right in conformity with theprovisions of the Charter of the United Nations'. The Covenants cameinto force in 1976 and thus constitute binding provisions as between
the parties, but in addition they also may be regarded as authoritativeinterpretations of several human rights provisions in the Charter, including self-determination. The 1970 Declaration on Principles of International Law Concerning Friendly Relations can be regarded as constituting an authoritative interpretation of the seven Charter provisions it
expounds. The Declaration states inter alia that 'by virtue of the principle of equal rights and self-determination of peoples enshrined in theCharter of the United Nations, all people have the right freely to determine. . . their political status' while all states are under the duty torespect this right-in accordance with the Charter. The Declaration was
specifically intended to act as an elucidation of certain important Charter
provisions and was indeed adopted without opposition by the General~ssembl~.~~~In addition to this general, abstract approach, the UN organs have dealt
with self-determination in a series of specific resolutions with regard toparticular situations and this practice may be adduced as reinforcing theconclusions that the principle has become a right in international law byvirtue of a process of Charter interpretation. Numerous resolutions havebeen adopted in the General Assembly and also the Security ~ o u n c i l . It'~~
is also possible that a rule of customary law has been created since practicein the UN system is still state practice, but the identification of the opinio
juris element is not easy and will depend upon careful assessment andjudgment.
Judicial discussion of the principle of self-determination has been relatively rare and centres on the ~ a r n i b i a ~ 'and'Western sahara2j2advisory opinions by the International Court. In the former case, the Court
emphasised that 'the subsequent development of international law in regard to non-self-governing territories as enshrined in the Charter of theUnited Nations made the principle of self-determination applicable to249 Adoptedinresolution2625 (XXV)without avote. Seee.g. R. Rosenstock, 'TheDeclarationof Principles of International Law Concerning Friendly Resolutions', 65 AJIL, 1971, pp.
16, 111 and 115.
O'
See e.g. Assembly resolutions 1755 (XVII); 2138 (XXI); 2151 (XXI); 2379 (XXIII); 2383
resolutions 183 (1963); 301 (1971); 377 (1975) and 384(XXIII) and Security Co~ii~cil(1975).
ICJ Reports, 1971, p. 16; 49 ILR, p. 3.
'j2 ICJ Reports, 1975, p. 12; 59 ILR, p. 30. See also M. N. Shaw, 'The Western Sahara Case',
49 BYIL, p. 119.

'"T H E S U B I E C T S OF INTERNATIONAL LAW

229

all of them:253 The Western Sahara case reaffirmed this point.254This
case arose out of the decolonisation of that territory, controlled by Spainas the colonial power but subject to irredentist claims by Morocco and
Mauritania. The Court was asked for an opinion with regard to the legal
ties between the territory at that time and Morocco and the Mauritanian entity. The Court stressed that the request for an opinion arose outof the consideration by the General Assembly of the decolonisation ofWestern Sahara and that the right of the people of the territory to selfdetermination constituted a basic assumption of the questions put to theAfter analysing the Charter provisions and Assembly resolutions noted above, the Court concluded that the ties which had existed
between the claimants and the territory during the relevant period of the
1880s were not such as to affect the application of resolution 1514 (XV),
the Colonial Declaration, in the decolonisation of the territory and inparticular the right to self-determination. In other words, it is clear that
the Court regarded the principle of self-determination as a legal one in
the context of such territories.
The Court moved one step further in the East Tirnor (Porttigal v.
Australia) case2j6 when it declared that 'Portugal's assertion that theright of peoples to self-determination, as it evolved from the Charterand from United Nations practice, has an erga omnes character, is irreproachable.' The Court emphasised that the right of peoples to selfdetermination was 'one of the essential principles of contemporaryinternational law:257 However, in that case, the Court, while noting thatfor both Portugal and Australia, East Timor (under Indonesian militaryoccupation since the invasion of 1975) constituted a non-self-governing
territory and pointing out that the people of East Timor had the rightto self-determination, held that the absence of Indonesia from the litigation meant that the Court was unable to exercise its j~risdiction.~"'
The
""CJ

Reports, 1971, pp. 16, 31; 49 ILR, pp. 3,21.

254 ICJ Reports, 1975, pp. 12, 31; 59 ILR, pp. 30,48.

'" ICJ Reports, 1975, p. 68; 59 ILR, p. 85. See in particular the views of Judge Dillard that'a norm of international l a ~ vhas emerged applicable to the decolonisation of those nonself-governing territories which are under the aegis of the United Nations: ICJ Reports,
1975, pp. 121-2; 59 ILR, p. 138. See also Judge Petren, ICJ Reports, 1975, p. 110; 59 ILR,
p. 127.
2"Ibid.
256 ICJ Reports, 1995, pp. 90, 102; 105 ILR, p. 226.
ICJ Reports, 1995, pp. 105-6. The reason related to the principle that the Court is unable
to exercise jurisdiction over a state without the consent of that state. The Court took
the view that Portugal's claims against Australia could not be decided upon without an
examination of the position of Indonesia, which had not consented to the jurisdiction of
the Court. See further below, chapter 19, p. 975.

"*

23 0

I N T E R N A T I O N A L LAW

issue of self-determination came before the Supreme Court of Canada in1998 in the form of three questions posed. The second question asked
whether there existed in international law a right to self-determination
which would give Quebec the right unilaterally to secede.259The Court
declared that the principle of self-determination 'has acquired a status beyond "convention" and is considered a general principle of internationallaw'.2h0

T h e definition of self-determination
If the principle exists as a legal one, and it is believed that such is the case,the question arises then of its scope and application. As noted above, UN
formulations of the principle from the 1960 Colonial Declaration to the1970 Declaration on Principles of International Law and the 1966 International Covenants on Human Rights stress that it is the right of 'all peoples'.
Ifthis is so, then all peoples would become thereby to some extent subjectsof international law as the direct repositories of international rights, andif the definition of 'people' used was the normal political-sociologicalone,261a major rearrangement of international law perceptions would
have been created. In fact, that has not occurred and an internationallaw concept of what constitutes a people for these purposes has been
evolved, so that the 'self' in question must be determined within the accepted colonial territorial framework. Attempts to broaden this have notbeen successful and the UN has always strenuously opposed any attempt
at the partial or total disruption of the national unity and territorial
integrity of a country.262The UN has based its policy on the proposition that 'the territory of a colony or other non-self-governing territory
has under the Charter a status separate and distinct from the territoryof the state administering it' and that such status was to exist until the'" (1998) 161 DLR (4th) 385; 115 ILR, p. 536. The first question concerned the existence or not in Canadian constitutional law of a right to secede, and the third question asked whether in the event of a conflict constitutional or international law would
have priority. See further below, chapter 9, p. 443, on the question of secession and selfdetermination.
260 (1998) 161 DLR (4th) 434-5.
261 See e.g. Cobban, Natiorz-State, p. 107, and K. Deutsche, Natiorlalisrn and Social Cornmunications, New York, 1952. See also the Greco-Bulgarian Cornrnunities case, PCIJ, Series
B, No. 17; 5 AD, p. 4.
'6'
See e.g. the Colonial Declaration 1960; the 1970 Declaration on Principles and article I11[3] of the OAU Charter.

T H E S U B I E C T S OF INTERNATIONAL LAW

23I

people of that territory had exercised the right to self-determinatione2""
Self-determination has also been used in conjunction with the principleof territorial integrity so as to protect the territorial framework of thecolonial period in the decolonisation process and to prevent a rule permitting secession from independent states from arising.264The CanadianSupreme Court noted in the Quebec case that 'international law expects
that the right to self-determination will be exercised by peoples within theframework of existing sovereign states and consistently with the maintenance of the territorial integrity of those states'.26%elf-determination asa concept is capable of developing further so as to include the right tosecession from existing states,266but that has not as yet convincingly hap~ e n e d . It
~ clearly~'
applies within the context, however, of decolonisationof the European empires and thus provides the peoples of such territories
with a degree of international personality.
The principle of self-determination provides that the people of thecolonially defined territorial unit in question may freely determine theirown political status. Such determination may result in independence, integration with a neighbouring state, free association with an independent
state or any other political status freely decided upon by the people con~ e r n e dSelf-determination.~~~
also has a role within the context of creationof statehood, preserving the sovereignty and independence of states, inproviding criteria for the resolution of disputes, and in the area of thepermanent sovereignty of states over natural resources.269"' 1970 Declaration on Princivles of International Law. Note also that resolution 1541 IXV)
declared that there is an obligation to transmit information regarding a territory 'whichis geographically separate and is distinct ethnically andlor culturally from the country
administering it:
See e.g. T. M. Franck, The Power ofLegitimacyArnong,\iations, Oxford, 1990, pp. 153 ff.;
Franck, 'Fairness in the International Legal and Institutional System', 240 HR, 1993 111, pp.
13, 127-49; Higgins, Problems and Process, chapter 11 and Shaw, Title, chapters 3 and 4.
'65 (1998) 161 DLR (4th) 385,436; 115 ILR, p. 536.
'66 Note that the Canadian Supreme Court did refer to 'exceptional circumstances' in which
a right of secession 'may' arise: see further below, chapter 9, p. 444.
267 But see further below, chapter 6, p. 269, with regard to the evolution of self-determination
as a principle of human rights operating within independent states.
Westerr1 Sallara case, ICJ Reports, 1975, pp. 12, 33 and 68. See also J ~ ~ d Dillard,geibid.,
p. 122; 59 ILR, pp. 30, 50, 85, 138. See Assembly resolution 1541 (XV) and the 1970
Declaration on Principles of International Law.
26' See the East Timor case, ICJ Reports, 1995, pp. 90, 102; 105 ILR, p. 226, where Portugal
agreement with Indonesia dealing with the exploration
claimed inter alia that 24~~stralia's
and exploitation of the continental shelf in the 'Timor Gap' violated the right of thepeople of East Timor to self-determination.

'"

232

I N T E R N A T I O N A L LAW

The question of the status in international law of individuals is closelybound up with the rise in the international protection of human rights.
This section will be confined to some general comments about the former.
The object theory in this regard maintains that individuals constitute only
the subject-matter of intended legal regulation as such. Only states, andpossibly international organisations, are subjects of theThis hasbeen a theory of limited value. The essence of international law has always
been its ultimate concern for the human being and this was clearly manifest in the Natural Law origins of classical international l a ~ . The~ ' ~growthof positivist theories, particularly in the nineteenth century, obscured thisand emphasised the centrality and even exclusivity of the state in this regard. Nevertheless, modern practice does demonstrate that individuals
have become increasingly recognised as participants and subjects of international law. This has occurred primarily but not exclusively throughhuman rights law.
The link between the state and the individual for international law
purposes has historically been the concept of nationality. This was andremains crucial, particularly in the spheres of jurisdiction and the international protection of the individual by the state. It is often noted thatthe claim of an individual against a foreign state, for example, becomessubsumed under that of his national state.273Each state has the capacity
to determine who are to be its nationals and this is to be recognised byother states in so far as it is consistent with international law, although in
270 See e.g. Oppenheini's international Law, chapter 8; Higgins, Problems and Process, pp.

48-55; Brownlie, Principles, chapter 25; O'Connell, International Luiv, pp. 106-12; C.
Norgaard, Position of the Individual in lnternrztionrll Lazv, Leiden, 1962; Cassese, International Laiv, p. 77; Nguyen Quoc Dinh et al., Droit International P~lblic,p. 643; R.
~Miillerson,'Human Rights and the Individual as a Subject of International Law: A Soviet
View', 1 EJIL, 1990, p. 33; P. M. Dupuy, 'L'individu et le Droit International: 32 Archives
Law,
de Philosophie drl Droit, 1987, p. 119; H. Lauterpacht, Human Rights in I~~teri~ationnl
London, 1951, and biterrlational Law: Collected Papers, vol. 11, p. 487, and The Individ-"'"'~lal'sDuties to the Corninunity and the Linlitations on H ~ n n a nRights and Freedoms under
Article 29 of the Universal Declaration of Hzrnian Rights, study prepared by Daes, 1983,
ElCN.4lS~1b.21432lRev.2.See also belo~v,chapter 6.
See e.g. O'Connell, biterriational Law, pp. 106-7.
See e.g. Grotius, De Jtlre Praedae Coiilmentaritls, 1604, cited in Daes, Individual? Duties,
p. 44, and Lauterpacht, Hz~nianRights, pp. 9, 70 and 74.
See the Panevezys-Saldutiskis case, PCIJ, Series AIB, No. 76; 9 AD, p. 308. See also the
Mavrornmatis Palestine Concessiolis case (Turisdiction), PCIJ, Series A, No. 2 (1924); 2
AD, p. 27. See also below, chapter 14.

T H E S U B I E C T S OF INTERNATIONAL LAW

233

order for other states to accept this nationality there has to be a genuine
connection between the state and the individual in question.274
Individuals as a general rule lack standing to assert violations of international treaties in the absence of a protest by the state of n a t i ~ n a l i t y , ~ ' ~although states may agree to confer particular rights on individuals which
will be enforceable under international law, independently of municipal
law. Under article 304(b) of the Treaty of Versailles, 1919, for example,
nationals of the Allied and Associated Powers could bring cases against
Germany before the Mixed Arbitral Tribunal in their own names for compensation, while the Treaty of 1907 between five Central American states
establishing the Central American Court of Justice provided for individuals to bring cases directly before theThis proposition was reiterated in the Danzig Railway Officials case2"
by the Permanent Court of International Justice, which emphasised that
under international law treaties did not as such create direct rights andobligations for private individuals, although particular treaties could provide for the adoption of individual rights and obligations enforceable
by the national courts where this was the intention of the contracting parties. Under the provisions concerned with minority protectionin the 1919 Peace Treaties, it was possible for individuals to apply directly to an international court in particular instances. Similarly the
Tribunal created under the Upper Silesia Convention of 1922 decided
that it was competent to hear cases by the nationals of a state against thatstate.278
Since then a wide range of other treaties have provided for individuals
to have rights directly and have enabled individuals to have direct accessto international courts and tribunals. One may mention as examples theEuropean Convention on Human Rights, 1950; the European Communities treaties, 1957; the Inter-American Convention on Human Rights,
1969; the Optional Protocol to the International Covenant on Civil andPolitical Rights, 1966; the International Convention for the Eliminationof All Forms of Racial Discrimination, 1965 and the Convention on the
Settlement of Investment Disputes, 1965.
27"ee the Nottebohm case, ICJ Reports, 1955, pp. 4,22-3; 22 ILR, p. 349, and below, chapter 14.
'75 See e.g. USv. Noriega, 746 F. Supp. 1506, 1533 (1990); 99 ILR, pp. 143, 175.
""ee
Ifiniternan, Digest, vol. I, p. 39.
'77 PCIJ, Series B, No. 15 (1928);4 AD, p. 287.
27R See e.g. Steiner and Gross v. Polisll State 4 AD, p. 291.

234

I N T E R N A T I O N A L LAW

International criminal re~ponsibilit?'~
The evolving subject of international individual criminal responsibility
marks the coming together of elements of traditional international law
with human rights law and humanitarian law, and involves considerationof domestic as well as international enforcement mechanisms. As far as
obligations are concerned, international law has imposed direct responsibility upon individuals in certain specified matters.280In the cases ofpiracy and slavery,28'offenders are guilty of a crime against internationalsociety and can thus be punished by international tribunals or by any
state at all. Jurisdiction to hear the charge is not confined to, for example,
the state on whose territory the act took place, or the national state of theoffender.
The Treaty ofversailles, 1919 noted that the German government recognised the right of the Allied and Associated Powers to bring individuals
accused of crimes against the laws and customs of war before military
tribunals (article 228) and established the individual responsibility of the
Kaiser (article 227).282In the event, only a few trials were held before
German courts in ~ e i p z iA~variety. ~ ~ of~ other international instruments
were also relevant in the establishment of individual responsibility withregard to specific issues.2s4
See e.g. Cassese, International Law, chapter 12; Lauterpacht, Human Rights, p. 43; Oppenheiwii International Law, p, 505; International Crinzinal Law (eds. G. 0. Mr. Mueller andE. M. Wise), New Jersey,1965, pp. 621-2; Glaser, Droit Internatiorzal Ptnal Conventionnel,
2 vols., 1970 and 1978; \I.Nanda, International Criniir~alLaw, 2 vols., Boulder, CO, 1973;
IM. C. Bassiouni, International Criminal Law, 3 vols., Leiden, 1986-7; Bassiouni, Crimes
Against Ht~rnar~ity
in Iizternational Criminal Law, Dordrecht, 1992, chapter 5; The Law of
War Crimes (eds. T. McCormack and G. Simpson), The Hague, 1997; L. Sunga, Individual
Responsibility in International Law for Serious Ht~rilanRights T7iolatioiis,Dordrecht, 1992,
and Brownlie, Priizciples, p. 565. See also S. R. Ratner and J. S. Abrams, Accountability for
Human Rights Atrocities in International Law, 2nd edn, Oxford, 2001; K. Kittichaisaree,
Internatioizal Crirniizal Law, Oxford, 2001, and R. Provost, International Hurrlan Rights
arid Humanitarian Law, Cambridge 2002.
l S OSee the advisory opinion of the Inter-American Court of Human Rights in the ReIntrodnction of the Death Penalty in the Pert~viariconstitution case, 16 HRLJ, 1995, pp.
9, 14, noting that individual responsibility may only be invoked for violations that are
defined in international instruments as crimes under international law.
See e.g. Bassiouni, Criines Against Humanity, pp. 193-6.
2S2 Ibid., pp. 199-203.
*" See C. Mullins, The Leipzig Trials, London, 1921.
'84 See e.g. the International Convention for the Protection of Submarine Telegraph
Cables, 1884; the Agreement for the Suppression of the Circulation of Obscene Publications, 1910; the International Convention for the Suppression of the Circulation of
and Traffic in Obscene Publications 1924; the Agreement Concerning the Suppression of"9T H E S U B I E C T S OF INTERNATIONAL LAW

235

The Charter annexed to the Agreement for the Prosecution and Punishment of the Major War Criminals, 1945 provided specifically for individual responsibility for crimes against peace, war crimes and crimes
against h ~ m a n i t y . ~ ~ T
NurembergheTribunal pointed out that 'international law imposes duties and liabilities upon individuals as well as uponstates'. This was because 'crimes against international law are committed by men, not by abstract entities, and only by punishing individuals
who commit such crimes can the provisions of international law be enforced'. Included in the relevant category for which individual responsibility was posited were crimes against peace, war crimes and crimes against
humanity.286
The provisions of the Nuremberg Charter can now be regarded as partof international law, particularly since the General Assembly in 1946 affirmed the principles of this Charter and the decision of the T r i b ~ n a l . ~ "The Assembly also stated that genocide was a crime under internationallaw bearing individual responsibility.288This was reaffirmed in the Genocide Convention of 1948, while the International Convention on the Suppression and Punishment of the Crime of Apartheid of 1973 declaresapartheid to be an international crime involving direct individual criminal responsibility.289
Individual responsibility has also been confirmed with regard to grave
breaches of the four 1949 Geneva Red Cross Conventions and 1977 Additional Protocols I and I1 dealing with armed conflicts. It is provided
Opium-Smoking, 1931; the Convention for the Suppression ofthe Illicit Trafficin Dangerous Drugs, 1936 and the International Convention for the Suppression of Counterfeiting
Currency, 1929.
See article 6, 39 AJIL, 1945, Supp., p. 259. See also Brownlie, Principles, pp. 565-6, andLauterpacht, Hunzan Rights, p. 6.
la' See 41 AJIL, 1947, p. 220. See also I. Broumlie, International Law and the Use ofFovce byStates, Oxford, 1963, p. 167. The Tokyo Charter, article 5, similarlyprovided for individual
responsibility with regard to certain crimes: see e.g. Bassiouni, Crittzes Against Humanity,
p. 21 1. See also ibid., pp. 212 ff. with regard to the case-law of the Tokyo Tribunal, forwhich also see S. Horowitz, The Tokyo Trial, International Conciliation No. 465 (1950),
and trials held in various countries arising out of the events of the Second World Il'ar.
Resolution 95(l). See also the International Law Commission's Report on Principles of
the Nuremberg Tribunal, Yearbook of the ILC, 1950, vol. 11, p. 195, and the Convention
on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against
Humanity, 1968.
Resolution 96(1).
28' See also the International Law Commission's Draft Code of Offences, 1954, Al2693, and
45 ATIL, 1954, p. 123, Supp., article 1 of which provided that 'offences against the peaceand security of mankind, as defined in this Code, are crimes under international law, forwhich the responsible individuals shall be punishable:

'''

23 6

I N T E R N A T I O N A L LAW

specifically that the High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing or ordering to be committed any of a series of grave breaches.290
Such grave breaches include wilful killing, torture or inhuman treatment,
extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly, unlawful deportation or transfer of protected persons and the taking of hostages.29'
Protocol I of 1977 extends the list to include, for example, making thecivilian population the object of attack and launching an attack against
works or installations containing dangerous forces in the knowledge thatsuch attack will cause excessive loss of life or damage to civilians or theirproperty when committed wilfully and causing death or serious injury;
other activities such as transferring civilian population from the territoryof an occupying power to that of an occupied area or deporting from an
occupied area, apartheid and racial discrimination and attacking clearlyrecognised historic monuments, works of art or places of worship, mayalso constitute grave breaches when committed
Any individual, regardless of rank or governmental status, would be personally liable
for any war crimes or grave breaches committed, while the principle ofcommand (or superior) responsibility means that any person in a position of authority ordering the commission of a war crime or grave breach
would be as accountable as the subordinate committing it. This would also
cover the situation where a commander fails to exercise sufficient control
over forces that proceed to commit such offences.293Military necessity
may not be pleaded as a defence294and the claim of superior orders will"' See article 49 of the First Geneva Convention, article 50 of the Second Geneva Convention, article 129 of the Third Geneva Convention and article 146 of the Fourth Geneva
Convention. See further below, chapter 21, p. 1055.
"I
See e.g, article 50 ofthe First Geneva Convention, article 51 ofthe Second Geneva Convention, article 130 of the Third Geneva Convention and article 147 of the Fourth Geneva
Convention. See also L. C. Green, The Contemporary Law ofArmed Conflict, 2nd edn,
~Manchester,2000, chapter 18.
292 See article 85 of Protocol I.
293 See e.g. Green, Armed Conflict, pp. 303-4; I . Aantekas, 'The Contemporary Law ofsuperior
Responsibility: 93 AJIL, 1999, p, 573, and Kittichaisaree, International Criminal Law,
p. 251. See also article 87 of Additional Protocol I, 1977; article i ( 3 ) of the Statute of theInternational Criminal Tribunal for the Former Yugoslavia, 1993; article 6(3) ofthe Statuteof the International Criminal Tribunal for Rwanda, 1994 and article 28 of the Statuteof the International Criminal Court, 1998. Note the delebiti case, 1998, ICTY, paras.
370 ff.
See e.g. In re Lewinski (called veil Manstein), 16 AD, p, 509.

'"

T H E S U B I E C T S OF INTERNATIONAL LAW

237

not provide a defence, although it may be taken in mitigation depending
upon the circumstance^.^^^The International Law Commission in 1991 provisionally adopted a
Draft Code of Crimes Against the Peace and Security of ank kind,"^which was revised in 1996.~"The 1996 Draft Code provides for individual criminal responsibility2" with regard to aggression,"' genocide,"Oa
crime against h~rnanity,~"a crime against United Nations and associated personne1302and war crimes.303The fact that an individual may be
responsible for the crimes in question is deemed not to affect the issue ofstate re~ponsibility.~~"The Security Council in two resolutions on the Somali situation in theearly 1990s unanimously condemned breaches of humanitarian law andstated that the authors of such breaches or those who had ordered theircommission would be held 'individually responsible' for them.305
Events in the former Yugoslavia in particular306impelled a renewal ofinterest in the establishment of an international criminal court, which had
In 1994, the International Law Comlong been under c~nsideration.~"mission adopted a Draft Statute for an International Criminal
"5

"6

"'
'0°
O
''
'05
'06

'07

'08

See Green, Armed Conflict,pp. 305-7; Green, Superior Orders in National and Irlternationul
L a ~ vLeiden,,
1976; Kittichaisaree, Ir~ternationalCrirrlinal Law, p. 266, andY. Dinstein, The
Defenceof 'Obedience to Superior Orders'in International Law, Leiden, 1965. See also article
8 of the Nuremberg Charter, 39 AJIL, 1945, Supp., p. 259; Principle IV of the International
Law Commission's Report on the Principles of the Nuremberg Tribunal 1950, Yearbookof the ILC, 1950, vol. 11, p. 195; article 7(4) of the Statute of the International Criminal
Tribunal for the Former Yugoslavia, 1993; article 6(4) of the Statute of the International
Criminal Tribunal for Kwanda, 1994 and article 33 of the Statute of the International
Criminal Court, 1998.
A146110 and 30 ILM, 1991, p. 1584.
299 See article 16.
A/51110, p. 9.
298 See article 2.
Article 17.
Article 18.
O''
Article 19.
Article 20.
jO' Article 4.
Resolutions 794 (1992) and 814 (1993).
~ u notet also Security Council resolution 674 (1990) concerning Iraq's occupation of
K~wait.The resolution reaffirmed Iraq's liability under the Fourth Geneva Convention,
1949 dealing with civilian populations of occupied areas. Such responsibility for grave
breaches was also expressly stated to extend to 'individuals who commit or order thecommission of grave breaches: See e.g, the Special Section on Iraqi War Crimes, 31\la. JIL, 1991, p. 351.
See e.g. B. Ferencz, Xn International Criillinal Code and Court: Mihere They Stand andWhere They're Going', 30 Coll~rnbiaJournal of Transnational Law, 1992, p. 375.
See Report of the ILC on the Il'ork of its 46th Session, Al49110, pp. 43 ff. See in particular
J. Crawford, 'The ILC's Draft Statute for an International Criminal Court: 88 AJIL, 1994,
p. 140.

23 8

I N T E R N A T I O N A L LAW

This draft provided the basis for the work which culminated in the adoption of the Rome Statute in 1998 at an international c~nference."~The
Statute provides that the jurisdiction of the International Criminal Court
is limited to the 'most serious crimes of concern to the international community as a whole', being genocide, crimes against humanity, war crimes
and aggression,"' and that a person who commits a crime within thejurisdiction of the Court 'shall be individually responsible and liable forpunishment' in accordance with the ~ t a t u t e . ~The
" Yugoslav experienceand the Rwanda massacres of 1994 also led to the establishment of two
specific war crimes tribunals by the use of the authority of the UN Security
Council to adopt decisions binding upon all member states of the organisation under Chapter VII of the Charter, rather than by an international
conference as was to be the case with the International Criminal Court.
This method was used in order both to enable the tribunal in question
to come into operation as quickly as possible and to ensure that the parties most closely associated with the subject-matter of the war crimes
alleged should be bound in a manner not dependent upon their consent(as would be necessary in the case of a court established by international
agreement).
The Security Council adopted resolution 808 (1993) providing forthe establishment of an international tribunal to prosecute 'persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991'.~l~The
309 The Statute establishing the International Criminal Court came into force on 1 July 2002.

"2

Article 5. These provisions are further defined in detail in articles 6-8. In addition, article 9
provides for the preparation ofElements of Crimes to assist the Court in the interpretation
and application of articles 6 , 7 and 8. They must be adopted by a two-thirds majority ofthe
members of the Assembly of States Parties. See e.g. A. Cassese, The International Criruinal
Court, Oxford, 2002, and W. Schabas, A n Introduction to the International Criminal Court,
Cambridge, 2001.
Article 25.
See also Security Council resolutions 764 (1992), 771 (1992) and 820 (1993) in whichgrave concern was expressed wit11 regard to breaches of international humanitarian law
and the responsibilities of the parties reaffirmed. In particular, individual responsibility
for the commission of grave breaches of the 1949 Conventions was emphasised. Under
resolution 780 (1992), the Council established an impartial Commission of Experts to
examine and analyse information concerning evidence of grave breaches of the Geneva
Conventions and other violations of international humanitarian law committed in the
territory of the former Yugoslavia. The Commission produced a report in early 1993 inwhich it concluded that grave breaches and other violations of international humanitarianlaw had been committed in the territory of the former Yugoslavia,including wilful killing,'ethnic cleansing', mass killings, torture, rape, pillage and destruction of civilian property,
the destruction of cultural and religious property and arbitrary arrests: see S125274. See

T H E S U B I E C T S OF INTERNATIONAL LAW

239

Secretary-General of the UN produced a report incorporating a draft
statute and commentary,313which was adopted by the Security Council
in resolution 827 (1993) acting under Chapter VII of the UN Charter.
The International Tribunal for the Prosecution of Persons Responsible
for Serious Violations of International Humanitarian Law Committed in
the Territory of the Former Yugoslavia since 1 January 1991 (and until
a date to be fixed upon the conclusion of peace) consists of two Trial
Chambers and an Appeals Chamber, together with a Prosecutor and a
Registry servicing both the Chambers and the Prosecutor. Articles 2 to 5of the Statute lay down the crimes with regard to which the Tribunal can
exercise j u r i s d i ~ t i o n . ~Article'~
7 establishes that persons who 'planned,
instigated, ordered, committed or otherwise aided and abetted in theplanning, preparation or execution' of crimes listed in articles 2 to 5 shallbe individually responsible for the crime. This article also provides thatthe official position of any accused person is not to relieve a person of
criminal responsibility nor mitigate punishment, while the fact that asubordinate committed the crime is not to relieve a superior of responsibility if the latter knew or had reason to know that the subordinate wasabout to or had committed the crime and the superior failed to take thenecessary and reasonable measures to prevent the acts or to punish theperpetrators thereof. It is also stipulated that the fact that an accused
person acted pursuant to an order of a government or of a superior will
not relieve him of criminal responsibility, although this may constitute a
mitigating factor if the Tribunal determines that justice so requires. The
Appeal Chamber of the Tribunal in the TadiC case confirmed that customary international law had imposed criminal responsibility for serious
violations of humanitarian law governing internal as well as internationalarmed conflict^.^"Following events in Rwanda during 1994 and the mass slaughter thattook
the Security Council decided in resolution 955 (1994)
to establish an International Tribunal for Rwanda, with the power to

'I3

"'
'I6

also Bassiouni, 'The United Nations Commission of Experts Established Pursuant toSecurity Council Resolution 780 (1992): 88 AJIL, 1994, p. 784.
S125704 (1993).
'I4 See further below, chapter 21.
See IT-94-1-AR72,2 October 1995, p. 70; 105 ILR, p. 419.
See e.g. UN Secretary-General Reports S119941879 and Sl19941906 and the Report of theSpecial Rapporteur for Rwanda of the UN Con~missiono n Human Rights, Sl199411157,
annex I and annex 11, and the Report ofthe Con~missionof Experts, Sl199411125. See also
L. Sunga, 'The Commission of Experts o n Rwanda and the Creation of the International
Criminal Tribunal for Rwanda: 16 HRLJ, 1995, p. 121, and R. S. Lee, 'The Rwanda
Tribunal: 9 Leiden Journal ofInternationa1 Laiv, 1996, p. 37.

240

I N T E R N A T I O N A L LAW

prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring states between 1 January 1994 and 31 December 1994. The Statuteof this Tribunal was annexed to the body of the Security Council resolution. It bears many similarities to the Statute of the Yugoslav Tribunal,
consisting, for example, of two Trial Chambers, an Appeals Chamber, aProsecutor and a Registry. Articles 2 to 4 stipulate the crimes over which
the Tribunal has juri~diction.~"Individual criminal responsibility is established for persons planning, ordering, committing or aiding the crimes
listed, while provisions similar to the Statute of the Yugoslav Tribunal withregard to official positions, superior/subordinate relations and superiororders apply."18
The Sierra Leone Special Court was established as a hybrid institution
by virtue of an agreement between the UN and Sierra Leone dated 16
January 2002, pursuant to Security Council resolution 1315 (2000), in
order to prosecute persons bearing 'the greatest responsibility for serious
violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996' on thebasis ofindividual criminal
Two ofthe three judges ofthe
Trial Chamber and three of the five judges of the Appeals Chamber are tobe appointed by the UN Secretary-General upon nominations forwarded
by states, in particular the member states of the Economic Community. ~ ~ jurisdiction~of theof West African States and the C o m m o n w e a l t l ~The
Article 2 deals with genocide; article 3 with crimes against humanity being the crimesof (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation; (e) Imprisonment;( f ) Torture; (g) Rape; (h) Persecutions on political, racial and religious grounds; and(i) Other inhumane acts, when committed as part of a widespread or systematic attack
against any civilian population on national, political, ethnic, racial or religious grounds;
and article 4 deals with violations of article 3 common to the Geneva Conventions andof Additional Protocol 11: see below, chapter 21, p. 1076.
Article 6. It should be particularly noted that in these instruments (the Statute for an
and Rwanda Tribunals),International Criminal Court and the Statutes for the Y~~goslav
as well as establishing individual criminal responsibility, the rights of the accused are
given careful attention. See further generally below, chapter 6.
"'" Article 1 of the Agreement contained in S120021246, Appendix I1 and article 6 of the
Statute of the Special Court, contained in S120021246, Appendix 111. See also R. Cryer,'A "Special Court" for Sierra Leone', 50 ICLQ, 2001, p. 435. See also Security Council
resolution 1436 (2002) affirming 'strong support' for the Court.
' 2 0 Article 2(a) and (c). Both the Prosecutor and the Registrar were to be appointed by the
Secretary-General after consultation with Sierra Leone, articles 3 and 4. The eight judges
were appointed in July 2002: see UN Press Release SGIAI813.

T H E S U B J E C T S O F I N T E R N A T I O N A L LAW

241Special Court, whose seat is in Sierra ~ e o n e mirrors, ~ ~ ~ the hybrid nature of its creation and staffing. The Court has jurisdiction with regard tocrimes against humanity; violations of article 3 common to the Geneva
Conventions and of Additional Protocol 11; other serious violations ofinternational humanitarian law and certain crimes under Sierra Leone

International organisations
International organisations have played a crucial role in the sphere of international personality. Since the nineteenth century a growing numberof such organisations have appeared and thus raised the issue of international legal personality.323In principle it is now well established thatinternational organisations may indeed possess objective international
legal personality.324Whether that will be so in any particular instancewill depend upon the particular circumstances of that case. Whether anorganisation possesses personality in international law will hinge uponits constitutional status, its actual powers and practice. Significant factors in this context will include the capacity to enter into relations withstates and other organisations and conclude treaties with them, and thestatus it has been given under municipal law. Such elements are known
in international law as the indicia of personality.
The acquisition, nature and consequences of legal personality some conclusions
The above survey of existing and possible subjects of international law
demonstrates both the range of interaction upon the international scene'" Article 10.
322 Articles 2-5 ofthe Statute ofthe Special Court. 011 13 May2003, the UN GeneralAsseml3ly

approved a Draft Agreement between the UN and Cambodia providing for Extraordinary
Chambers in the Comts of Cambodia, ~vithjurisdiction over inter aliawar crimes committed in the country between 1975 and 1979, composed over Cambodian and international
judges, see A1571806. See also UNMIK Regulations 199915 and 2000164 concerning thedesignation of three-judge panels, including at least two international judges, within thecriminal justice system in Kosovo; UNTAET Regulation 2001125 on the appointment ofinterilatioilal judges to the Dili Special Panel for Serious Crimes and to the reconstituted
Court ofAppeal in East Timor; andAnnexV1 of the Dayton Peace Agreement establishinga Human Rights Chamber of Bosnia and Herzegovina with international judges, below,
p. 353.
See O'Connell, Iilterilational Law, p. 94, and below, chapter 23.
324
See the Reparation for Irzjtlries case, ICJ Reports, 1949, p. 174; 16 AD, p. 318. See also theInterpretation of the Agreeinent of 25 March 1951 between the TVHO aild Egypt case, ICJ
Reports, 1980, pp. 73,89-90; 62 ILR, pp. 450,473-4.

"'

242

I N T E R N A T I O N A L LAW

by entities of all types and the pressures upon international law to cometo terms with the contemporary structure of international relations.
The International Court clearly recognised the multiplicity of models of
personality in stressing that 'the subjects of law in any legal system are notnecessarily identical in their nature or in the extent of their r & h t ~ ' . ~ ~ q h e r eare, however, two basic categories - objective and qualified personality. In
the former case, the entity is subject to a wide range of international rights
and duties and it will be entitled to be accepted as an international personby any other international person with which it is conducting relations.
In other words, it will operate erga omnes. The creation of objective
international personality will of necessity be harder to achieve and will
require the action in essence of the international community as a whole
or a substantial element of it. The Court noted in the Reparations casethat:fifty states, representing the vast majority of the members of the international community, have the power, in conformity with international law,
to bring into being an entity possessing objective international personality and not merely personality recognised by them alone, together withcapacity to bring international claims.32h

The attainment of qualified personality, on the other hand, binding
only the consenting subject, may arise more easily and it is clear that inthis respect at least theory ought to recognise existing practice. Any legal
person may accept that another entity possesses personality in relation toitself and that determination will operate only in personam.
States are the original and major subjects of international law. Their
personality derives from the very nature and structure of the international
system. Statehood will arise as a result of the factual satisfaction of the
stipulated legal criteria. The constitutive theory of recognition is not really
acceptable, although recognition, of course, contributes valuable evidenceof adherence to the required criteria. All states, by virtue of the principleof sovereign equality, will enjoy the same degree of international legal
personality. It has been argued that some international organisations,rather than being derivative subjects of international law, will as sovereign
or self-governing legal communities possess an inherent personality directly from the system and will thus constitute general and even objective subjects of international law. Non-sovereign persons, including
3'5126

ICJ Reports, 1949, p. 178; 16 AD, p. 321.
ICJ Reports, 1949, p. 185; 16 AD, p. 330.

T H E S U B I E C T S OF INTERNATIONAL LAW

243

non-governmental organisations and individuals, would be derived subjects possessing only such international powers as conferred exceptionally
upon them by the necessary subjects of international la^.^^^ This view may
be questioned, but it is true that the importance of practice via the larger
international organisations cannot be underestimated.
Similarly the role of the Holy See (particularly prior to 1929) as well as
the UN experience demonstrates that the derivative denomination is unsatisfactory. The significance of this relates to their ability to extend theirinternational rights
and duties on the basis of both constituent instruments and subsequent practice and to their capacity to affect the creationof further international persons and to play a role in the norm-creatingprocess.
Recognition, acquiescence and estoppel are important principles in thecontext of international personality, not only with regard to states andinternational organisations but throughout the range of subjects. They
will affect not only the creation of new subjects but also the definition of
their nature and rights
and duties.
Personality may be acquired by a combination of treaty provisions
and recognition or acquiescence by other international persons. For instance, the International Committee of the Red Cross, a private nongovernmental organisation subject to Swiss law, was granted special
functions under the 1949 Geneva Red Cross Conventions and has been
accepted as being able to enter into international agreements under international law with international persons, such as with the EEC under
Another possible method of acquiring
the World Foodinternational personality is by subjecting an agreement between a recognised international person and a private party directly to the rules ofinternational law. This would have the effect of rendering the latteran international person in the context of the arrangement in question soas to enable it to invoke in the field of international law the rights it derives from that arrangement.329While this currently may not be entirely
acceptable to Third World states, this is probably because of a perceptionof the relevant rules of international law which may very well alter.330
Personality may also be acquired by virtue of being directly subjected
See e.g. F. Seyersted, 'International Personality of Intergovernmental Organisations: 4
Irldiarl Journal oflr~ternationalLaw, 1964, p. 19.
32s See e.g. Whiteman, Digest, vol. I, p. 48, and Yearbook of the ILC, 1981, vol. 11, p. 12.
""eein particular the Texaco v. Libya case, 53 ILR, pp. 389,457-62.
330 Note the intriguing suggestion raised in the study prepared for the Economic Commission
for Asia and the Far East, that an agreement between autonomous public entities (not
j2'

244

I N T E R N A T I O N A L LAW

to international duties. This would apply to individuals in specific casessuch as war crimes, piracy and genocide, and might in the future constitute the method by which transnational corporations may be accepted asinternational persons.
Community needs with regard to the necessity to preserve international stability and life may well be of relevance in certain exceptional
circumstances. In the case of non-state territorial entities that are not totally dominated by a state, there would appear to be a community needto ensure that at least the rules relating to the resort to force and thelaws of war operate. Not to accept some form of qualified personality
in this area might be to free such entities from having to comply withsuch rules and that clearly would affect community requirement^.^^' The
determining point here, it is suggested, must be the degree of effective
control maintained by the entity in its territorial confines. However, evenso, recognition may overcome this hurdle, as the recognition of Byelorussia and the Ukraine as non-sovereign state entities prior to the demise of
the Soviet Union and the emergence of these entities as the independent
states of Belarus and Ukraine demonstrated."'All these entities may be easily contained within the category of qualified personality, possessing a limited range of rights and duties valid asagainst those accepting their personality. There are no preset rules governing the extent of rights and duties of international persons. This will
depend upon the type of entity concerned, its claims and expectations,functions and attitude adopted by the international community. The exception here would be states which enter upon life with an equal rangeof rights and obligations. Those entities with objective personality will, it
is suggested, benefit from a more elastic perception of the extent of theirrights and duties in the form of a wider interpretation of implied powers
through practice. However, in the case of qualified subjects implied powers will be more difficult to demonstrate and accept and the range of their
being subjects of international law) might create an international person: UNIYB, 1971,
p p 215-18. The study was very cautious about this possibility.
See the Icramibia case, ICJ Reports, 1971, pp. 16, 56, 134 and 149; 49 ILR, pp. 3, 46, 124,
139. See also Security Coullcilresolutions 326 (1973);328 (1973);403 (1977);406 (1977);
411 (1977); and 424 (1978) in which the Council condemned Rhodesian attacks againstneighbouring states and recognised that the entity was subject to the norins relating to
the use of force.
332 See e.g. UKMIL, 49 BYIL, 1978, p. 340. Byelorussia and the Ukraine were separate members of the UN and parties to a lumber of conventions: ibid.

"'

T H E S U B I E C T S OF INTERNATIONAL LAW

245

rights and duties will be much more limited. The presumption, thus, will
operate the other way.
The precise catalogue of rights and duties is accordingly impossible
to list in advance; it will vary from case to case. The capacity to function on the international scene in legal proceedings of some description
will not be too uncommon, while the power to make treaties will beless widespread. As to this the International Law Commission noted that'agreements concluded between entities other than states or than international organisations seem too heterogeneous a group to constitute a
general category, and the relevant body of international practice is as yet
too exiguous for the characteristics of such a general category to be inferred from it'.333The extent to which subjects may be internationallyresponsible is also unclear, although in general such an entity will possess
responsibility to the extent of its rights and duties; but many problem
areas remain. Similarly controversial is the norm-creating role of suchdiverse entities, but the practice of all international persons is certainly
relevant material upon which to draw in an elucidation of the rules andprinciples of international law, particularly in the context of the entity inquestion.
International personality thus centres, not so much upon the capacityof the entity as such to possess international rights and duties, as upon
the actual attribution of rights and/or duties on the international plane asdetermined by a variety of factors ranging from claims made to prescribedfunctions. Procedural capacity with regard to enforcement is importantbut not essential,334but in the case of non-individual entities the claimant
will have to be in 'such a position that it possesses, in regard to its members, rights which it is entitled to ask them to respect'.33' This, noted theInternational Court, expressed 'the essential test where a group, whether
composed of states, of tribes or of individuals, is claimed to be a legal
entity distinct from its members'.336
A wide variety of non-subjects exist and contribute to the evolution of
the international system. Participation and personality are two concepts,
but the general role played in the development of international relations"3

Yearbook of the ILC, 1981, vol. 11, pp. 125-6.

334 See e.g. Norgaard, Position of the Individual, p. 35. See also the Peter Pazrnany University

case, PCIJ,Series AIB, No. 61 (1933); 7 AD, p. 490.
335 ICJ Reports, 1949, pp. 174, 178; 16 AD, pp. 318, 321.
"6

ICJ Reports, 1975, pp. 12, 63; 59 ILR, pp. 14, 80.

246

I N T E R N A T I O N A L LAW

and international law by individuals and entities of various kinds that are
not international legal subjects as such needs to be appreciated.
Suggestions for further reading
A. Cassese, Self-Determination of Peoples, Cambridge, 1995
J. Crawford, The Creation of Statehood in International Law, Oxford, 1979
K. Higgins, Problems afzd Process, Oxford, 1994
N. Schrijver, 'The Changing Nature of State Sovereignty', 70 BYIL, 1999, p. 65

The international protection of human rights

The nature of human rights1

The preamble to the Universal Declaration of Human Rights adopted on
10 December 1948 emphasises that 'recognition of the inherent dignity
and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world: While
there is widespread acceptance of the importance of human rights in theinternational structure, there is considerable confusion as to their precise
nature and role in international law.' The question of what is meant by
a 'right' is itself controversial and the subject of intense jurisprudential
debate.3 Some 'rights', for example, are intended as immediately enforceable binding commitments, others merely as specifying a possible future
See e.g. H. Lauterpacht, International Law and Hzlri~anRights, London, 1950; D. llreissbrodt,
1. Fitzpatrick and F. Newman, International Human Rights, 3rd edn, Cincinnati, 2001; J.
Rehman, International H u n ~ a nRights Law, London, 2002; Nguyen Quoc Dinh, P. Daillier
and A. Pellet, DroitInternational Public, 7th edn, Paris, 2002, p. 656; F. Sudre, Droit International et Europten des Droits de I'Homme, 3rd edn, Paris, 1997; M. S. McDougal, H. Lasswelland L. C. Chen, H~lmarrRights and Il'orld Public Order, New Haven, 1980; L. Sohn and
T. Buergenthal, International Protection of Human Rights, Indianapolis, 1973; The Human
Rights Reader (eds. W Laquer and B. Rubin), London, 1977; Hurllan Rights in International Law (ed. T. Meron), Oxford, 2 vols., 1984; A. H. Robertson and J. Merrills, Htlinan
Rights in the World, 4th edn, Manchester, 1996; A. Cassese, International Law, Oxford,
2001, chapter 16; Human Rights in the IVorld Community (eds. R. Claude and B. Weston),
2nd edn, Philadelphia, 1992; H. Hannum, Guide to International Human Rights Practice,
2nd edn, Philadelphia, 1992; J. Donnelly, International Htlinan Rights, Boulder, 1993; D. R.
Forsythe, Hurnan Rights in International Relations, Cambridge, 2000; R. Higgins, Problerr~sand Process, Oxford 1994, chapter 6; Huinan Rights: An Agenda for the Next Ceilttlry (eds.
L. Henkin and L. Hargrove), Washington, 1994, and H. Steiner and P. Alston, blternational
Hurnan Rights ill Context, 2nd edn, Oxford, 2000.
See e.g. M. Moskowitz, The Policies and Dynarrlics of Hurrlan Rights, London, 1968, pp.
98-9, and McDougal et al., Hnrrlan Rights, pp. 63-8.
See e.g. Mr.N. Hohfeld, 'Fundamental Legal Conceptions as Applied to Judicial Reasoning:
23 Yale Laiv Journal, 1913, p. 16, and R. Dworkin, Taking Rights Seriously, London, 1977.
See also 1. Shestack, 'The Jurisprudence of Human Rights' in Meron, Hurnan Right5 inInternational Law, vol. I , p. 69, and M. Cranston, W h a t Are Human Rights?, London, 1973.

7-48

I N T E R N A T I O N A L LAW

pattern of b e h a ~ i o u rThe
. ~ problem of enforcement and sanctions withregard to human rights in international law is another issue which canaffect the characterisation of the phenomenon. There are writers who regard the high incidence of non-compliance with human rights norms as
evidence of state practice that argues against the existence of a structureof human rights principles in international law.' Although sight mustnot be lost of violations of human rights laws, such an approach is notv e .concept~ofonly academically incorrect but also p r ~ f o u n d l ~ n e ~ a t iThehuman rights is closely allied with ethics and morality. Those rights thatreflect the values of a community will be those with the most chance of
successful implementation. Positive rights may be taken to include thoserights enshrined within a legal system, whether or not reflective of moral
considerations, whereas a moral right is not necessarily enforceable bylaw. One may easily discover positive rights. Deducing or inferring moral
rights is another matter entirely and will depend upon the perception of
the person seeking the existence of a particular right.7
Rights may be seen as emanating from various sources, whether religion or the nature of man or the nature of society. The Natural Law view,as expressed in the traditional formulations of that approach or by virtueof the natural rights movement, is that certain rights exist as a result of ahigher law than positive or man-made law. Such a higher law constitutes
a universal and absolute set of principles governing all human beings intime and space. The natural rights approach of the seventeenth century,
associated primarily with John Locke, founded the existence of such inalienable rights as the rights to life, liberty and property upon a social
contract marking the end of the difficult conditions of the state of nature.
This theory enabled recourse to be had to a superior type of law and thus
was able to provide a powerful method of restraining arbitrary power.8'

Compare, for example, article 2 of the International Covenant on Cip-il and Political Rights,
1966 with article 2 of the International Covenant on Economic, Social and Cultural Rights,
1966.
See e.g. J. S. Watson, 'Legal Theory, Efficacy and Validity in the Development of Human
Rights Norms in International Law', University of Illinois Law Forum, 1979, p. 609, andWatson, 'Autointerpretation, Competence and the Continuing Validity of Article 2(7) of
the UN Charter: 71 AJIL, 1977, p. 60.
See e.g. R. Higgins, 'Reality and Hope and International Human Rights: A Critique: 9
Hofitra Law Revietv, 1981, p. 1485.
See 1~1.Cranston, 'Mihat are Human Rights?' in Laquer and Rubin, Htlrnan Rights Readcr,
p p 17, 19.
See e.g. Lauterpacht, Ir~ternationalLaw; R. Tuck, h'att~ralRights Theories, Cambridge, 1979;
J. Finnis, A~aturalLaw andNatura1 Rights, Oxford, 1980, and McDougal et al., Human Rights,
pp. 68-71. See also above, chapter 1.

THE PROTECTION OF HUMAN RIGHTS

249

Although this approach fell out of favour in the nineteenth century due
to the problems of its non-empirical and diffuse methodology, it provedof immense value in the last century in the establishment of human rights
within the international community as universal principles. Positivism as
a theory emphasised the authority of the state and as such left little place
for rights in the legal system other than specific rights emanating fromthe constitutional structure of that system,9 while the Marxist doctrine,
although based upon the existence of certain immutable historical laws
governing the development of society, nevertheless denied the existence ofrights outside the framework of the legal order.'' Modern rights theories
cover a wide range of approaches, and this clearly emphasises the needto come to terms with the requirements of an evolving legal system thatcannot be totally comprehended in terms of that system itself.ll
Of particular interest is the work of the policy-oriented movementthat seeks to identify, characterise and order a wide variety of relevant
factors in the process of human rights creation and equipment. Eight interdependent values are noted (viz. demands relating to respect, power,
enlightenment, well-being, health, skill, affection and rectitude) and various environmental influences stressed. Human dignity is seen as the key
concept in relation to these values and to the ultimate goal of a worldcommunity in which a democratic distribution of values is sought.12
All these theories emphasise the complexity of the nature ofthe conceptof human rights in the context of general legal and political processes, butalso the importance and centrality of such notions. The broad issues are
similarly raised within the framework of international law.

Ideological approaches to human rights in international law
The view adopted by the Western world with regard to international human rights law in general terms has tended to emphasise the basic civil
and political rights of individuals, that is to say those rights that take theform of claims limiting the power of government over the governed. Such

' See e.g. D. Lloyd, Introductiotz toJurisprudence, 4th edn, London, 1979, chapter 4. See also
H. Hart, The Concept o f l a w , Oxford, 1961, McDougal et al., Human Rights, pp. 73-5, andabove, chapters 1 and 2.
l o See e.g. Lloyd, Jurisprudence, chapter 10, and McDougal et al., Human Rights, pp. 76-9.
See also below, p. 250.
l 1 See e.g. J. Rawls, A Theory ofJustice, Oxford, 1971; E . Cahn, The Sense of Ir~ustice,Bloomington, 1949; R. Nozick, Anarchy, State and Utopia, Oxford, 1974, and Dworkin, Taking
Rights Seriously. See also S. Davidson, Human Rights, Buckingham, 1993, chapter 3.
l 2 See McDougal et al., Htlrnarl Rights, especially pp. 82-93.

250

I N T E R N A T I O N A L LAW

rights would include due process, freedom of expression, assembly andreligion, and political participation in the process of government. The
consent of the governed is seen as crucial in this process.'3 The approachof the Soviet Union was to note the importance of basic rights and freedoms for international peace and security, but to emphasise the role ofthe state. Indeed, the source of human rights principles was seen as thestate. Tunkin wrote that the content of the principle of respect for humanrights in international law may be expressed in three propositions:(1) all states have a duty t o respect the fimdamental rights and freedomsof all persons within their territories; (2) states have a duty not to permit
discrimination by reason of sex, race, religion or language, and (3) states
have a duty to promote universal respect for human rights and to co-operatewith each other to achieve this objective.'"

In other words, the focus was not upon the individual (as in Westernconceptions of human rights) but solely upon the state. Human rights
were not directly regulated by international law and individuals were notsubjects of international law. Indeed, human rights were implemented
by the state and matters basically and crucially within the domestic affairs of the state. As Tunkin emphasised, 'conventions on human rights
do not grant rights directly to individuals'." Having stressed the central
function of the state, the point was also made that the context of theinternational human rights obligations themselves was defined solely by
the state in the light of the socio-economic advancement of that state.
Accordingly, the nature and context of those rights would vary from state
to state, depending upon the social system of the state in question. It
was the particular socio-economic system of a state that would determine
the concrete expression of an international human rights provision.16 In
other words, the Soviet Union was able and willing to enter into many
international agreements on human rights, on the basis that only a state
obligation was incurred, with no direct link to the individual, and that
" See e.g. R. Hauser, 'A First JVorldView', in Hurrzan Rights and Arnericarz Foreign Policy (eds.

D. P. Kommers and G. Loescher), Notre Dame, 1979, p. 85.
l 4 G. Tunkin, Theory of Irzterrzational Laiu, London, 1974, p. 81. See also K. Tedin, 'The

Development of the Soviet Attitude Towards Implementing Human Rights under the UN
Charter', 5 HRJ, 1972, p. 399; R. N. Dean, 'Beyond Helsinki: The Soviet View of Human
Rights in International Law', 21 Va. JIL, 1980, p. 55, and P. Reddaway, 'Theory and Practiceof Human Rights in the Soviet Union' in Kommers and Loescher, Htlrnan Rights andAmerican Foreign Policy, p. 115.
l5 Tunkin, Theory, p. 83.
l6 Ibid., pp. 82-3.

THE PROTECTION OF HUMAN RIGHTS

251

such an obligation was one that the country might interpret in the lightof its own socio-economic system. The supremacy or centrality of thestate was the key in this approach. As far as the different kinds of humanrights were concerned, the Soviet approach was to stress those dealing
with economic and social matters and thus to minimise the importanceof the traditional civil and political rights. However, a new approachto the question of international human rights began to emerge by the endof the 1980s, reflecting the changes taking place politically.'7 In particular,
the USSR began to take a different approach with regard to human rights
treaties.''
The general approach of the Third World states has combined elements of both the previous perceptions.lg Concern with the equality andsovereignty of states, together with a recognition of the importance ofsocial and economic rights, has characterised the Third World view. Suchcountries, in fact constituting a wide range of nations with differing interests and needs, and at different stages of development, have been muchinfluenced by decolonisation and the struggle to obtain it and by the phenomenon of apartheid in South Africa. In addition, economic problems
have played a large role in focusing their attention upon general developmental issues. Accordingly, the traditional civil and political rights havetended to lose their priority in the concerns of Third World states2' Of
particular interest is the tension between the universalism ofhuman rights
and the relativism of cultural traditions. This has led to arguments by someadherents ofthe latter tendency that human rights can only be approachedwithin the context of particular cultural or religious traditions, thus criticising the view that human rights are universal or tran~cultural.~'Thisl 7 See e.g. V. Vereshchetin and R. Miillerson, 'International Law in an Interdependent \\70rld',

28 Columbia Journal of Transnational Law, 1990, pp. 291, 300.
Ibid. Note that on 10 February 1989, the USSR recognised the compulsory jurisdiction of
the International Court of Justice with regard to six human rights treaties, including the
Genocide Convention, 1948; the Racial Discrimination Convention, 1965; the Convention
on Discrimination against Women, 1979 and the Torture Convention, 1984.
See e.g. R. Emerson, 'The Fate of Human Rights in the Third World: 27 World Politics,
1975, p. 201; G. Mower, 'Human Rights in Black Africa', 9 HRJ, 1976, p. 33; R. Zvobgo,'A Third World View' in Kommers and Loescher, Human Rights and American Foreign
Policy, p. 90, and M. Nawaz, 'The Concept of Human Rights in Islamic Law' in Symposiumon International Law of Human Rights, 11 Howard Laiv Jourr~al,1965, p. 257.
20 See generally T. Van Boven, 'Some Remarks on Special Problems Relating to Human Rights
in Developing Countries', 3 Revue des Droits de Z'Hornrne, 1970, p. 383. See further below,
p. 363, on the Banjul Charter on Human and Peoples' Rights.
See e.g. Steiner and Alstoi~,International Ht~rnanRights, pp. 366 ff.
lS

''

''

252

I N T E R N A T I O N A L LAW

contention suffuses much of the contemporary debate on the international protection of human rights.22
The development of international human rights law2"
In the nineteenth century, the positivist doctrines of state sovereignty anddomestic jurisdiction reigned supreme. Virtually all matters that today
would be classified as human rights issues were at that stage universally
regarded as within the internal sphere of national jurisdiction. The major
exceptions to this were related to piracy jure gentium and slavery. In thelatter case a number of treaties were entered into to bring about its abolit i ~ nConcern. ~ ~ also with the treatment of sick and wounded soldiers andwith prisoners of war developed as from 1864 in terms of international
instrument^,^' while states were required to observe certain minimum
standards in the treatment of aliens." In addition, certain agreementsof a general welfare nature were beginning to be adopted by the turn ofthe century.2' The nineteenth century also appeared to accept a right of
humanitarian intervention, although its range and extent were ~ n c l e a r . ~ 'An important change occurred with the establishment of the League~
22 of the Covenant of the League set upof Nations in 1 9 1 9 . ~Article
the mandates system for peoples in ex-enemy colonies 'not yet able tostand by themselves in the strenuous conditions of the modern world'.
The mandatory power was obliged to guarantee freedom of conscienceand religion and a Permanent Mandates Commission was created to examine the reports the mandatory authorities had undertaken to make.
The arrangement was termed 'a sacred trust of civilisation'. Article 23 of" See e.g. E. Brems, Hnrnan Rights: Universality and Diversity, The Hague, 2001, and A. D.
Renteln, International Hnrrlan Rights: Universalism versus Relativism, Newbury Park, 1990.

" See e.g. The International Protection o f H u f n a n Rights (ed. E . Luard), London, 1967; Sohn

and Buergenthal, International Protection; Lauterpacht, International Law; M. Rloscou~itz,International Concern with Human Rights, London, 1968 and M. Ganji, The International
Protection of Htnnan Rights, London, 1962.
24 See e.g. C. Greenidge, Slavery, London, 1958, and V. Nanda and M. C. Bassiouni, 'Slavery
and the Slave Trade: Steps towards Eradication', 12 Santa Clara Law Revieu: 1972, p. 424.
See also STISOAI4.
" See generally G. Best, War and Latv Since 1945, Oxford, 1994, and Studies and Esxays on
International Hurr~anitarianLaw and Red Cross Principles (ed. C . Swinarski), The Hague,
1984.
' 6 See below, chapter 14.
E.g. regarding the Prohibition of Night M'ork for Women in Industrial Employment andregarding the Prohibition of the Use of 1l"nite Phosphorus in the Manufacture of Matches.
See below, chapter 20, p. 1045.
2"eebelow, chapter 23.

*'''

THE PROTECTION OF HUMAN RIGHTS

253

the Covenant provided for just treatment of the native populations of theterritories in q ~ e s t i o n . ~The
' 1919 peace agreements with Eastern European and Balkan states included provisions relating to the protection ofminorities," providing essentially for equality of treatment and opportunities for collective activity.32These provisions were supervised by the
League of Nations, to whom there was a right of p e t i t i ~ n . ~ ~Part XI11 of the Treaty of Versailles provided for the creation of theInternational Labour Organisation, among the purposes of which were
the promotion of better standards of working conditions and support for
the right of a s s ~ c i a t i o nThe
. ~ ~ impact of the Second World War upon thedevelopment of human rights law was immense as the horrors of the war
and the need for an adequate international system to maintain international peace and protect human rights became apparent to all. In addition,
the rise of non-governmental organisations, particularly in the sphere ofhuman rights, has had an immense effecte3'While the post-Second World
War world witnessed the rise of intergovernmental committees and organs and courts to deal with human rights violations, whether by publicdebate, states' reports, comments, inter-state or individual petition procedures, recent years have seen the interposition of domestic amnesty laws
and this has given rise to the question of the acceptability of i m p ~ n i t y . " ~" See above, chapter 5, p. 225.

See generally, P. Thornberry, 'Is There a Phoenix in the Ashes? - International Law andlMinority Rights', 15 Texas International L ~ I V
Jouriial, 1980, p. 421; C. A. Macartney,
National States and &'ational Minorities, London, 1934, and I. Claude, Natiorlal Minorities: An International Problem, Cambridge, 1955. See also M. N. Shatv, 'The Definitionof Minorities in International Law' in Protection ofMinorities and H t ~ m a nRights (eds. Y.
Dinstein and M. Tabory), Dordrecht, 1992, p. 1.
'
2 See e.g. the Minority Schools in Albania case, PCIJ, Series AIB, No. 64, 1935, p. 17.
11
See Thornberry, 'Phoenix', pp. 433-54, and M. Jones, 'National Minorities: A Case Studyin International Protection', 14 Law and Contemporary Problelns, 1949, pp. 599, 610-24.
See further below, p. 273.
j4 See further below, p. 312.
j q e e e.g. Steiner and Alston, International Human Rights, pp. 938 ff., and C. Chinkin,'The Role of Non-Governmental Organisations in Standard Setting, Monitoring and Implementation of Human Rights' in The Changing World of International Law in the 21stCentury (eds. J. 1. Norton, M. Andendas and M. Footer), The Hague, 1998.
' 6 See e.g.
Gavron, 'Amnesties in the Light of Developments in International Law andthe Establishment of the International Criminal Court', 51 ICLQ, 2002,p. 91. See also C.
renkins, 'Amnesty for Gross Violations of Human Rights: A Better Way of Dealing with
the Past?' in Comparative Law in a Global Perspective (ed. I. Edge), London, 2000, p. 345,
and 1. Dugard, 'Dealing with Crimes of a Past Regime: Is Amnesty Still an Option?', 16
Leiden JIL, 2000, p. 1. Note the Final Report of the Special Rapporteur on the Right to
Restitution, compensation and Rehabilitation for Irictims of Gross Violations of Human?',,

I N T E R N A T I O N A L LAW

Some basic principles

The basic rule of international law providing that states have no rightto encroach upon the preserve of other states' internal affairs is a consequence of the equality and sovereignty of states and is mirrored in article
2 ( 7 ) of the UN Charter. It has, however, been subject to a process of
reinterpretation in the human rights field3' as this and the succeeding
chapter will make apparent, so that states may no longer plead this rule
as a bar to international concern and consideration of internal humanrights situation^.^^ 1t is, of course, obvious that where a state accepts theright of individual petition under an international procedure, it cannot
thereafter claim that the exercise of such a right constitutes interferencewith its domestic affair^.^'

The exhaustion of domestic remedies rule4'
This rule flows from the above principle. It is a method ofpermitting states
to solve their own internal problems in accordance with their own constitutional procedures before accepted international mechanisms can be
invoked, and is well established in general international law." However,Rights, ElCN.412000162, January 2000, and Ckunlbipunla Agui7.1-e v. Peru, the Barrios
Altos case, where the Inter-American Court of Human Rights held that Peruvian amnesty
laws were incompatible with the Inter-American Convention and thus void of any legal
effect, judgment of 14 March 2001,41 ILM, 2002, p. 93. Peru accepted this and altered its
legislation, ibid.
j7 See e.g. R. Higgins, The Developrrient oflnternational Latv Thro~ugh
the Political Organs of
2nd
the United ivatioiis, Oxford, 1963; M . Rajan, United Nations and Domestic]~~risdiction,edn, London, 1961, and A. Canqado Trindade, 'The Domestic Turisprudence of States in
the Practice of the United Nations and Regional Organisations', 25 ICLQ, 1976, p. 715.
" Note that the question of the extent and content of domestic jurisdiction is a matter forinternational law: see h'utionality Decrees in Tunis and Morocco cases, PCIJ, Series B, No.
4, 1923; 2 AD, p. 349. See also below, chapter 12.
39 See also the resolution ofthe Institut de Droit International, 1989, HlInf (90) 1, p. 131.
" See e.g. Miha v. Equatorial Gnirzea, CCPR/C/5llD/414/1990, 10 August 1994, Humail
Rights Committee, para. 63.
See e.g. A. Canqado Trindade, The Application ofthe Rule ofExhunstiorl ofLocal Remedies inInternational Law, Cambridge, 1983; C. Law, The Local Renledies Rule in International Law,
Geneva, 1961, and C. F, Amerasinghe, Local Reinedies in Internatioilal Law, Cambridge,
1990. See also C. F. Amerasinghe, 'The R ~ d eof Exhaustion of Local Remedies and theInterilatioilal Protectioil of Humail Rights', 17 bldian Yearbook of Internatioilal Affairs,
1974, p. 3. See also below, chapter 14, p. 730.
4' See e.g. the Ambatielos case, 23 ILR, p. 306; the Fiilnish Ships case, 3 RIAA, p. 1479 and theInterhandel case, ICJ Reports, 1959, pp. 26-7; 27 ILR, pp. 475,490.

''

T H E PROTECTION OF H U M A N RIGHTS

255

where such internal remedies are non-existent or unduly and unreasonably prolonged or unlikely to bring effective relief, the resort to international measures will not be required." The existence of such a remedy
must be certain not only in theory but also in practice.4% provision
regarding the need to exhaust domestic remedies before the various international mechanisms may be resorted to appears in all the international and regional human rights instruments" and has been the subjectof much consideration by the Human Rights Committee under the Optional Protocol procedure of the International Covenant on Civil and~ ~ InterPolitical Rights,46 and within the European C ~ n v e n t i o nand
American Convention human rights s y s t e m ~ . ~ ~43 See e.g. the Robert E. Brotvn case, 6 RIAA, p. 120; 2 AD, p. 66. See also the Salem case,

2 RIAA, p. 1161; 6 AD, p. 188; the Nielsen case, 2 Yearbook o f the ECHR, p. 413; 28 ILR,
p. 210, and the Secortd Cyprtls case (Greecev. U K ) , 2 Yearbook of the ECHR, 17. 186. See also
the cases cited in the succeeding footnotes.
44 See e.g. Johnston v. Ireland, European Court of Human Rights, Series A, No. 112 (1986)
and Open Door and Dublin Well Woman v. Ireland, European Court of Human Rights,
Series A, No. 246 (1992).
45 See e.g. article 41(c), Civil and Political Rights Covenant and article 2, Optional Protocol;
article 11(3),Racial Discrimination Convention; article 26, European Convention; article
50, American Convention and article 50, Banjul Charter. See also ECOSOC resolution
1503 and UNESCO decision 104 EXi3.3, 1978, para. 14(IX).
46 See e.g. S. Joseph, J. Schultz and M. Castan, The International Covenant on Civil andPolitical Rights, Oxford, 2000, chapter 6; the IVeinberger case, Reports of the Human
Rights Committee, A136140, p. 114 and A144140, p. 142 and the Sara case, Al49140, annex
X, Section C, para. 8.3. States are required to provide evidence that there would he areasonable prospect that available remedies would be effective, Torres Ramirezv. Uruguay,
Selected Decisions under the Optional Protocol, CCPRICIOPIl, 1985, p. 3. See also e.g.
Baboeram-Adhinv. Suriname,A/40140,p.187; 94ILR,p.377; Muhonenv. Finland, Al40140,
p. 164; 94 ILR, p. 389; Solorzano v. Venez~lela,Ai41140, p. 134; 94 ILR, p. 400; Holland v.
Ireland 115 ILR, p. 277 and Fazlrisson v . France 115 ILR, p. 355. See also, ~vithregard to
the UN Convention against Torture, AE v. Switzerland, CATlCI141D12411995.
47 See, as to the position under the Emopean Convention on Human Rights, e.g. the Nielsen
case, 2 Yearbook ofthe ECHR, p. 413; the Second C y p r ~ case~ s (Greece v. UK), 2 Yearbook of
theECHR, p. 186; the Donnelly case, 16 Yearbook oftheECHR, p. 212; Kjeldsenr. Deninark,
15 Yearbook ofthe ECHR, p. 428; 58 ILR, p. 117; Drozd and Janousek v. France and Spain
64 DR 97 (1989) and Akdivar v . Turkey 23 EHRR, 1997, p. 143. See also D. J. Harris,
M. O'Bople and C. b'arbrick, Law of the Ezrropeail Corlventioiz on Hziinan Rights, London,
1995, p. 608, and Jacobs and White: European Coilventioiz oiz Hilnlan Rights (eds. C. Ovey
and R. C. A. White), 3rd edn, Oxford, 2002, p. 409. The rule of exhaustion of doillestic
remedies applies also in inter-state cases: see Cyprtlsv. Turkey2 DR 125 at 137-8 (first andsecond applications) and 13 DR 85, 150-3 (third application), although not with regard
to legislative measures nor with regard to administrative actions in certain circumstances:see e.g. the Greek case, 12 European Yearbook of Human Rights, p. 196.
See e.g, article 46(l)a of the Inter-American Convention on Human Rights, 1969 andarticle 37 of the Regulations of the Inter-American Commission on Human Rights. See
also Exceptions to the Exhatlstion of Domestic Remedies in Cases of Iridigency, Advisory

"

256

I N T E R N A T I O N A L LAW

Priorities of rights
Certain rights may not be derogated from in the various human rights instruments even in times ofwar or other public emergency threatening thenation. In the case of the European Convention" these are the rights to life
(except in cases resulting from lawful acts of war), the prohibition on torture and slavery, and non-retroactivity of criminal offences." In the caseof the American onv vent ion," the following rights are non-derogable:
the rights to judicial personality, life and humane treatment, freedom
from slavery, freedom from expost facto laws, freedom of conscience andreligion, rights of the family, to a name, of the child, nationality and parBy article 4 of the International Covenant
ticipation in go~ernment.'~
on Civil and Political Rights, the rights to life and recognition as a person before the law, the freedoms of thought, conscience and religion andthe prohibition on torture, slavery, retroactivity of criminal legislationand imprisonment on grounds solely of inability to fulfil a contractual
obligation are non-derogable.j3
Such non-derogable rights clearly are regarded as possessing a special
place in the hierarchy of rights.54 In addition, it must be noted, manyrights are subject to a limitation or clawback clause, whereby the absolute right provided for will not operate in certain situations." Thoserights therefore that are not so limited may be regarded as of particularvalue.56

Customary international law und h u m a n rights
In addition to the many international and regional treaty provisions concerning human rights to be noted in this and the next
Opinion of the Inter-American Court of Human Rights, 1990, 12 HRLJ, 1991, p. 20, andAnfitla1 Report of the Inter-Anzerican Co~nrnissionofl Hclrnan Rights 1993, Washington,
1994, pp. 148, 185 and 266.
49 Article 15. See generally, R. Higgins, 'Derogations Under Human Rights Treaties: 48 BYIL,
1976-7, p. 281.
j0 Articles 2, 3, 4(1) and 7.
j1 Article 27.
iZ Articles 3 , 4 , 5, 6, 9, 12, 17, 18, 19,20 and23.
" Articles 6, 7, 8(1) and (21, 11, 15, 16 and 18. Note that the Banjul Charter contains no
specific derogations clause.
The fact that a right may not be derogated from may constitute evidence that the rightconcerned is part of jus cogens.
See e.g. articles 8-11 of the European Convention, articles 12-14, 15-16 and 21-2 of theAmerican Convention and articles 12, 18, 19, 21 and 22 of the Civil and Political Rights
Covenant. See also Higgins, 'Derogations'.
' 6 See e.g, the due process rights.

THE PROTECTION OF HUMAN RIGHTS

257

chapter,57 certain human rights may now be regarded as having enteredinto the category of customary international law in the light of statepractice. These would certainly include the prohibition of torture, genocide and slavery and the principle of non-discrimination.j8 In addition,
human rights established under treaty may constitute obligations ergaomnes for the states parties.j9

The United Nations system - general6'
There are a number of human rights provisions in the Charter.6' Article 1
includes in the purposes of the organisation the promotion and encouragement of respect for human rights and fundamental freedoms for all
without distinction as to race, sex, language or religion. Article 13(1)notesthat the General Assembly shall initiate studies and make recommendations regarding the realisation ofhuinan rights for all, while article 55 provides that the United Nations shall promote universal respect for and observance of human rights. In a significant provision, article 56 states that:
all members pledge themselves to take joint and separate action in cooperation with the organisation for the achievement of the purposes set
forth in article 55.62

The mandate system was replaced by the trusteeship system, one of thebasic objectives of which was, by article 76, the encouragement of respectfor human rights, while, with regard to non-self-governing territories,
the administering powers under article 73 of the Charter recognised theNote that questions relating to the interpretation of and reservations to human rights
treaties will be noted below in chapter 16, pp. 843 and 829, while the issue of succession
to human rights treaties will be noted below in chapter 17, p. 885.
"'eee.g. Third US Restaterrlent ofForeign Relations Law, St Paul, 1987, rol. 11, pp. 161 ff. andFilartiga Y. Pena-Irala 630 F.2d 876. See also T. Meron, Human Rights and Hunianitarian~Vorrnsas Custornury Law, Oxford, 1989 and the articles published in the Special Issue
on Customary International Human Rights Law, 25 Georgia Journal o f International andComparative Law, 1995-6.
j 9 See below, chapter 14, p. 720.
See generally Bowett's Latv of International Institutions (eds. P. Sands and P. Klein), 5thedn, Manchester, 2001; Lauterpacht, International Latv, pp. 145-220; UNActiori in the
Field ofHurnan Rights, New York, 1981, and Human Rights: Thirty Years after the Universal
Declaration (ed. B. Ramcharan), Dordrecht, 1979.
61 Largely as a result of lobbying by non-governmental organisations at the San Francisco
Conference: see J. Humphrey, 'The United Nations Charter and the Universal Declarationof Human Rights' in Luard, International Protection, chapter 3.
6' Under article 62, the Economic and Social Council has the L>owerto make recommendations for the purpose of promoting respect for and observance of human rights.
j7

258

I N T E R N A T I O N A L LAW

principle that the interests of the inhabitants were paramount, and accepted as a sacred trust the obligation to promote the well-being of the
inhabitants. It can thus be seen that the Charter provisions on humanrights were very general and vague. No enforcement procedures were laid
down. Some have argued that the term 'pledge' in article 56 had the effectof converting the enumerated purposes of article 55 into legal obligat i o n ~ , ~but' this has been disputed.64 Certainly, as of 1946, this would
have been a difficult proposition to sustain, particularly in view of thehortatory language used in the provisions and the fact that the respect forhuman rights stipulation does not identify precise legal rights.65However,in the Nanzibia case of 1971, the Court noted that under the UN Charter:
the former Mandatory had pledged itself to observe and respect, in a territory having international status, human rights and fundamental freedoms
for all without distinction as to race. To establish instead and to enforce,
distinctions, exclusio~ls,restrictions and limitations, exclusively based o ngrounds of race, colour, descent or national or ethnic origin which constitute a denial of fundamental human rights is a flagrant violation of the
purposes and principles of the Charter.66

It may be that this provision can only be understood in the light of thespecial, international status of that territory, but in the light of extensive
practice since the 1940s in the general area of non-discrimination andhuman rights, the broader interpretation is to be preferred.
The Charter does contain a domestic jurisdiction provision. Article2(7) provides that:
nothing contained in the present Charter shall authorise the United
Nations to intervene in matters which are essentially xvithin the domestic jurisdiction of any state" See e.g. Lauterpacht, International Law, pp. 47-9; Q. \\Tright,'National Courts and Human

Rights - the Ftljii case', 45 AJIL, 1951, p. 73, and B. Sloan, 'Human Rights, the United
Nations and International Law', 20 Nordisk Tidsskrijt for International Ret, 1950, pp. 30-1.
See also Judge Tanaka, South West Africa cases, ICJ Reports, 1966, pp. 6, 288-9; 37 ILR,
pp. 243,451-2.
64 See M. 0 . Hudson, 'Integrity of International Instruments: 42 AJIL, 1948, pp. 105-8 andYearbook ofthe ILC, 1949, p. 178. See also H. Kelsen, The Laiv ofthe Unitedh'ations, London,
1950, p. 29.
6' See D. Driscoll, 'The Development of Human Rights in International Law' in Laquer andRubin, Human Rights Reader, pp. 41,43.
66 ICJ Reports, 1971, pp. 16, 57; 49 ILR, pp. 3, 47. See also I. Brownlie, Prirlciplcs of Public International Law, 5th edn, Oxford, 1998, p. 571; E. Schwelb, 'The International
Court of Justice and the Human Rights Clauses of the Charter: 66 AJIL, 1972, p. 337,
and 0 . Schachter, 'The Charter and the Constitution', 4 Var~derbiltLaw Review, 1951,
p. 443.

THE PROTECTION OF HUMAN RIGHTS

259

but as noted later67this has over the years been flexibly interpreted, sothat human rights issues are no longer recognised as being solely within
the domestic jurisdiction of states.
The elucidation, development and protection of human rights throughthe UN has proved to be a seminal event. A range of declarations andtreaties has emerged, coupled with the establishment of a variety ofadvisory services and implementation and enforcement mechanisms.
Large numbers of studies and reports of various kinds have appeared,
while the whole process has been accompanied by extensive debate andconsideration in a variety of UN organs and committees. Notwithstanding a certain degree of cynicism, it can be concluded that the acceptance ofthe centrality of human rights concerns within the international
community has been due in no small measure to the unceasing consideration of human rights issues within the framework of the United
Nations.
The cornerstone of UN activity has been without doubt the Universal
Declaration of Human Rights adopted by the UN General Assembly on
10 December 1 9 4 8 . ~The~ Declaration was approved without a dissenting vote (the Byelorussian SSR, Czechoslovakia, Poland, Ukrainian SSR,
USSR, Yugoslavia and Saudi Arabia abstained). It was intended not asa legally binding document as such but, as its preamble proclaims, 'acommon standard of achievement for all peoples and nations'. Its thirty
articles cover a wide range of rights, from liberty and security of the person(article 3), equalitybefore the law (article 7), effective remedies (article 8),due process (articles 9 and lo), prohibitions on torture (article 5) and arbitrary interference with privacy (article 12) to rights protecting freedom
ofmovement (article 13),asylum (article 14),expression (article 19),conscience and religion (article 18) and assembly (article 20). One should also
note that included in the Declaration are social and economic rights such

(17

See below, p. 574.
See e.g. Oppenkeim's lntevnatior~alLaw (eds. R. Y.Jennings and A. D. h'atts), 9th edn,
London, 1992, p. 1001; IM. Whiteman, Digest ofInternationa1 Law, TITashington,1965, vol.
V, p. 237; J. Humphrey, 'The Universal Declaration o n Human Rights' in Ramcharan,
Huvnan Rights, p. 21; J. KLI~Z,'The United Nations Declaration of Human Rights', 43
AJIL, 1949, p. 316; E. Schwelb, 'The Influence of the Universal Declaration of Human
Rights o n International and National Law', PASIL, 1959, p. 217; A. Verdoodt, Naissance etSigri$cation de la D&claration Universelle de Droits de I'Homrne, Paris, 1964; The Universal
Declaration of Hurrlan Rights: d Corrirrlentary (eds. A. Eide, G. Alfredsson, G. Melander,
L. A. Rehof and A. Rosas), Dordrecht, 1992; The Universal Declaration of Hurrian Rights:
A Conlmon Standard ofdchievernent (eds. G. Alfredsson and A. Eide), The Hague, 1999,
and P. R. Ghandi, 'The Universal Declaration of Human Rights at 50 Years: 41 German
YIL, 1998, p. 206.

260

I N T E R N A T I O N A L LAW

as the right to work and equal pay (article 2 3 ) )the right to social security(article 25) and the right to education (article 26).
Although clearly not a legally enforceable instrument as such, thequestion arises as to whether the Declaration has subsequently become
binding either by way of custom69 or general principles of law, or indeed by virtue of interpretation of the UN Charter itself by subsequent
practice.70 The Declaration has had a marked influence upon the constitutions of many states and upon the formulation of subsequent human rights treaties and resolution^.'^ It is also to be noted that in 1968,
the Proclamation of Tehran at the conclusion of the UN-sponsored International Conference on Human Rights stressed that the Declaration
constituted 'an obligation for members of the international commuThe Declaration has also been referred to in many cases,'%nd
its importance within the context of United Nations human rights law
should not be di~regarded.'~
The intention had been that the Declaration would be followed immediately by a binding universal convention
Note that the Foreign and Commonwealth Office in a document issued in January 1991
on 'Human Rights in Foreign Policy' took the view that, although the Declaration was 'notin itself legally binding, much of its content can now be said to form part of customaryinternational law', UKMIL, 62 BYIL, 1991, p. 592.
' O See e.g. Oppenheim's blternational Law, p. 1002.
See e.g. Schwelb, 'Influence'; J. Hun~phrey,'The International Bill of Rights: Scope and
Implementation: 17 Williaii~and Mary Law Revietv, 1975, p. 527; Oppenlleim's International Law, pp. 1002-5; Judge Tanaka, South-M'est Afiica cases, ICJ Reports, 1966, pp. 6,
288 and 293; 37 ILR, pp. 243,451,454, and the European Convention on Human Rights,
1950, below, chapter 7, p. 321.
" 23 GAOR, AlConf. 32141. See also the non-governmental Montreal Statement, 9 Revietvof the International Coirlrnission ofJurists, 1968, p. 94.
See e.g. In re Flesche 16 AD, pp. 266, 269; The State (Duggan) v. Tapley 18 ILR, pp. 336,
342; Robinson v. Secretary-General o f the Uh' 19 ILR, pp. 494, 496; Extradition of Greek
National case, 22 ILR, pp. 520, 524 and Beth El Mission v. Minister of Social M'elfare47 ILR,
pp. 205, 207. See also Corfir Channel case, ICJ Reports, 1949, pp. 4, 22; 16 AD, pp. 155,
158 and Filartigar. Pena-Irala 630 F.2d 876 (1980).
'4 The Vienna Declaration and Programme of Action adopted on 25 J ~ m e
1993 at the UN
Conference on Human Rights referred to the Declaration as the 'source of inspiration' andthe 'basis for the United Nations in making advances in standard setting as contained in
the existing international human rights instruments: 32 ILM, 1993, pp. 1661, 1663. The
private International Law Association adopted a resolution in 1994 in which it noted that'the Universal Declaration of Human Rights is universally regarded as an authoritativeelaboration ofthe human rights provisions of the United Nations Charter' and that 'many
if not all of the rights elaborated in the Universal Declaration of Human Rights are widely
recognised as constituting rules of customary international law: Report of the Sixty-sixth
Conference, Buenos Aires, 1994, p. 29.
69''

THE PROTECTION OF HUMAN RIGHTS

261

on human rights, but this process took considerably longer than anticipated. In the meantime, a number of important international conventions dealing with selective human rights issues were adopted, including
the Genocide Convention7bnd the Convention on the Elimination of
Racial ~ i s c r i m i n a t i o n . ~ ~The Vienna Declaration and Programme of Action, adopted in 1993,
emphasised that all human rights were universal, indivisible and interdependent and interrelated. The protection of human rights was seen asa priority objective of the UN and the interrelationship of democracy,development and respect for human rights and fundamental freedoms
underlined. Additional facilities for the UN Centre for Human Rights
were called for as well as the establishment of a UN High Commissioner
for Human Rights. The Declaration made particular reference inter alia
to the problems of racial discrimination, minorities, indigenous peoples,
migrant workers, the rights of women, the rights of the child, freedom
from torture, the rights of disabled persons and human rights education.77
The post of UN High Commissioner for Human Rights was indeed established several months later78and filled in April 1994. In General Assembly
resolution 481141, it is provided that the UN High Commissioner for
Human Rights would be the UN official with principal responsibility
for UN human rights activities. The High Commissioner is responsible
for promoting and protecting the effective enjoyment by all of all civil,
cultural, economic, political and social rights, providing through the UN
Centre for Human Rights and other appropriate institutions, advisory services and other assistance including education and engaging in dialogue
with all governments with a view to securing respect for human rights.
The High Commissioner may also make recommendations to competent bodies of the UN system with a view to improving the promotion
and protection of all human rights.79He has engaged in a series of visits
to member states of the UN and has become involved in co-ordination
activitie~.~'" See below, p. 262.

76

See further below, p. 289.

" See 32 ILM, 1993, pp. 1661 ff.

See General Assembly resolution 481141, 20 December 1993. See also A. Clapham,'Creating the High Commissioner for Human Rights: The Outside Story: 5 EJIL, 1994,
p. 556.
"'eethe first Report of the United Nations High Commissioner for Human Rights, 1995,
Al49136, p. 2.
80 Ibid., pp. 3 ff. Further details as to activities may be found o n the website, \1'~1w.unhchr.ch.

262

I N T E R N A T I O N A L LAW

The protection of the collective rights of groups und individuals 8'
International law since 1945 has focused primarily upon the protection ofindividual human rights, as can be seen from the Universal Declaration of
Human Rights. In recent years, however, more attention has been given
to various expressions of the concept of collective rights, although it isoften difficult to maintain a strict differentiation between individual andcollective rights. Some rights are purely individual, such as the right to lifeor freedom of expression, others are individual rights that are necessarily
expressed collectively, such as freedom of assembly or the right to manifest
one's own religion. Some rights are purely collective, such as the right toself-determination or the physical protection of the group as such throughthe prohibition of genocide, others constitute collective manifestations ofindividual rights, &ch as the right of persons belonging to minorities toenjoy their own culture and practise their own religion or use their own
language. In addition, the question ofthe balancing ofthe legitimate rightsof the state, groups and individuals is in practice crucial and sometimes
not sufficiently considered. States, groups and individuals have legitimate
rights and interests that should not be ignored. All within a state havean interest in ensuring the efficient functioning of that state in a mannerconsistent with respect for the rights of groups and individuals, while thebalancing of the rights of groups and individuals may itself prove difficultand complex.
Prohibition of genocide
The physical protection of the group as a distinct identity is clearly the
first and paramount factor. The Convention on the Prevention and Punishment of the Crime of Genocide signed in 1 9 4 8 reaffirmed~~that genocide, whether committed in time of war or peace, was a crime under" See e.g. D. Sanders, 'Collecti\~eRights', 13 HRQ, 1991, p. 368, and N. Lerner, Group Rights

arid Discrirninatioil in Internatiorial Law, 2nd edn, The Hague, 2003.
" See e.g. \V. Schabas, Genocide in Irlternatiorzul Law, Cambridge, 2000; N. Robinson, The

Genocide Cornlention, London, 1960; R. Lemkin, Axis Rule in Occupied Et~rope,London,r,
Harmondsworth, 1981, and Internutiorla1 Action Against Geno1944; L. K ~ ~ p eGenocide,cide, Minority Rights Group Report No. 53, 1984; Genocide and Hurilan Rights (ed. J.
Porter), TITashington1982, and I. Horowitz, Taking Lives: Genocide and State Power, New
Brunswick, 1980. See also N. R~thashyankiko,Study on the Qt~estioilo f the Prevention andPunishmer~tof the Crirrle of Genocide, 1978, EICN.41Sub.21416; B. Whittaker, Revised andUpdated Report on the Question of the Prevention and Punishment of the Crime o f Genocide, 1985, ElCN.4lSub.21198516; 'Contemporary Practice of the United States Relating toInternational Law', 79 AJIL, 1985, pp. 116 ff.; M. N. Shaw, 'Genocide and International
Law' in Intei.nationa1 Lazv at a Time ofperplexity (ed.Y. Dinstein), Dordrecht, 1989, p. 797,

THE PROTECTION OF HUMAN RIGHTS

263

international law. Genocide was defined as any of the following acts committed 'with intent to destroy, in whole or in part, a national, ethnical,
racial or religious group as such':(a) killing members ofthe group; ( b ) causing serious bodily or mental harmt o members of the group; (c) deliberately intlicting o n the group conditionsof life calculated t o bring about its physical destruction in whole or in part;( d ) imposing measures intended to prevent births within the group; (e)forcibly transferring children of the group to another group.

The Convention, which does not have an implementational system,s3
provides that persons charged with genocide shall be tried by a competenttribunal of the state in the territory of which the act was committed or by
an international penal tribunal. Several points should be noted. First, thequestion of intent is such that states may deny genocidal activity by notingthat the relevant intent to destroy in whole or in part was in fact absent.84
Secondly, the groups protected do not include political groups.85Thirdly,
the concept of cultural genocide is not i n ~ l u d e d , 'and~ fourthly there isvirtually no mention of means to prevent the crime.
In the 1990s, the issue of genocide unfortunately ceased to be an itemof primarily historical concern. Events in the former Yugoslavia and in
Rwanda stimulated increasing anxiety in this context. The Statutes ofa ~ ' the Inboth the International Tribunal for the Former ~ u ~ o s l a v i andternational Tribunal for ~ w a n d a , "established to deal with international
crimes committed by individuals within defined geographic and chronological jurisdictional limits, have provided for the prosecution of individuals for the crime of genocide.89A significant case-law has now developed through these tribunals. The importance of establishing the specificintent to destroy the group in question in whole or in part was emphasised
and G. Verdirame, 'The Genocide Definition in the Jurisprudence of the Ad HocTribunals:
49 ICLQ, 2000, p. 578.
But see Sub-Commission resolution 1994111.
54 See Kuper, Genocide, pp. 32-5, and N. Lewis, 'The Camp at Cecilio Baez: in Genocide in
Paraguay (ed. R. Arens), Philadelphia, 1976, p. 58. See also Ruhashyankiko, Study, 17. 25.
See e.g. Kuper, Genocide, pp. 25-30, and Ruhashyankiko, Study, p. 21. See also Robinson,
Genocide Convention, 17. 59.
86 See e.g. K ~ ~ p eGenocide,r,
p. 31; Robinson, Genocide Convention, p. 64, and Ruhashyankiko,
Study, pp. 21 ff.
" Article 4: see above, chapter 5, p. 238.
*Article2: see above, chapter 5, p. 239.
8' See, for example, the indictments against Bosnian Serb leaders (Karadzit and Mladic)
alleging inter alia genocide: Bulletin of the International Criminal Tribunal for the Former
Yugoslavia, 1995, p. 4 and IT-95-18-1. See also article 6 of the Statute of the International
Cri~ni~lalCourt, above, chapter 5, p. 238.

''

"

264

I N T E R N A T I O N A L LAW

by the Yugoslav Tribunal in the Jelisii. case,90while it has been held withregard to the difficulties in establishing the critical intent requirementthat recourse may be had in the absence of confessions to inferences fromfacts.91Further, the definition of membership of the groups specificallyreferred to in the relevant instruments has been carefully analysed. In~ k a ~ e s u , "the Trial Chamber of the Rwanda Tribunal leaned towards
the objective definition of membership of groups, but this has been mitigated by other cases emphasising the importance of subjective elements 9"
The Akayesu case has also been important in emphasising that rape andsexual violence may amount to genocide when committed with the necessary specific intent to commit genocide.94The Rwanda Tribunal has also
held that genocide may be committed by omission as well as by actsg5
In addition, the question of state responsibility for the crime of genocide
has been raised.96 The International Court of Justice in the Case CoizcerningApplication of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia andMontenegro)) was faced with Bosnian claims that Yugoslavia had violated
the Genocide onv vent ion.^' The Court in its Order of 8 April 1993 on the
Request for the Indication of Provisional ~ e a s u r e s held
~ ' that article 9 of~~a valid jurisdictional basis,loOwhile reaffirmthe C ~ n v e n t i o nprovided
inglO1 the view expressed in the Advisory Opinion on Reservations to the
Genocide Convention that the crime of genocide 'shocks the conscience of90

IT-95-10, para. 66.

91 See the Akayesu case, ICTR-96-4-T, 1998, para. 523. See also, with regard to relevant facts,

the Kayisherna and R14zindana case, ICTR-95-1-T, para. 93.
ICTR-96-4-T, paras. 5 11 ff.
91 See e.g. Kayishema and Ruzirldana, ICTR-95-1-T, para. 67 and Rutaganda, ICTR-96-3-T,
para. 55.
94 ICTR-96-4-T, para. 731.
9' Karnbanda, ICTR-97-23-S, para. 39.
96 See further generally below, chapter 14.
" ICJ Reports, 1993, pp. 3 and 325; 95 ILR, pp. 1 and 43.
" ICJ Reports, 1993, pp. 3, 16; 95 ILR, pp. 1, 31. See also R. Maison, 'Les Ordonnancesde la CIJ dans I'Affaire Relative a I'Application de la Convention sur la Prevention et laRepression du Crime du Genocide', 5 EIIL, 1994, p. 381.
99 This provides that 'disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the
responsibility of a state for genocide or for any of the other acts enumerated in article 111,
shall be submitted to the International Court of J ~ ~ s t iat
c ethe request of any of the parties
to the dispute:loo The Court dismissed other suggested grounds for its jurisdiction in the case, ICJ Reports,
1993, p. 18; 95 ILR, p. 33.
lo' ICJ Reports, 1993, p. 23; 95 ILR, p. 38.
9'

THE PROTECTION OF HUMAN RIGHTS

265

mankind, results in great losses to humanity.. . and is contrary to moral
law and to the spirit and aims of the United ~ a t i o n s ' . " The~ Court called
upon both parties not to take any action that might aggravate or extend
the dispute over the prevention or punishment of the crime of genocide.
The government of Yugoslavia (Serbia and Montenegro) was requested
to take all measures within its power to prevent commission of the crimeof genocide, and was specifically called upon to ensure that 'any military,paramilitary or irregular armed units which may be directed or supported
by it, as well as any organisations and persons which may be subject to its
control, direction or influence, do not commit any acts of genocide'.'03
These provisional measures were reaffirmed by the Court in its Order on
Provisional Measures of 13 September 1993 as measures which should be'immediately and effectively implemented:104
On 11 July 1996, the Court rejected the Preliminary Objections raisedb y ~ u g o s l a v i aIn. ~particular,~~
the Court emphasised that it followed fromthe object and purpose of the Genocide Convention that the rights andobligations contained therein were rights and obligations erga otnizes andthat the obligation upon each state to prevent and punish the crime of
genocide was not dependent upon the type of conflict involved in theparticular situation (whether international or domestic) and was not territorially limited by the onv vent ion.'^^ The type of state responsibility
envisaged under article 9 of the Convention did not exclude any form of. ' ~addition,~
the Court observed that the Convenstate r e ~ ~ o n s i b i l i t yIntion did not contain any clause the object or effect ofwhich was to limit thescope of its jurisdiction ratione temporis so as to exclude events prior to aparticular date.''' Yugoslavia subsequently withdrew the counter-claims
it had introduced against ~osnia,"' while introducing an application in
April 2001 for revision of the 1996 judgment on the basis that a 'new
ICJ Reports, 1951, pp. 15,23;18 ILR, pp. 364,370, quoting the terms of General Assembly
resolution 96 (I) of 11 December 1946.
lo' ICJ Reports, 1993, pp. 3, 24; 95 ILR, pp. 1, 39.
lo4 ICJ Reports, 1993, pp. 325,350; 95 ILR, pp. 43,68. See also the Separate Opinion of Judge
Lauterpacht, ICT Reports, 1993, pp. 407,431-2; 95 ILR, pp. 125, 149-50.
lo5 NOWSO called, rather than the former Yugoslavia (Serbia and Montenegro), as from,and in consequence of, the Dayton Peace Agreement initialled at Dayton, USA, o n 11
November 1995 and signed in Paris on 14 December 1995.
'06 ICJ Reports, 1996, pp. 595, 615; 115 ILR, p. 1.
lo7 ICJ Reports, 1996, p. 616.
'Ox Ibid., p. 617. See also the Legality ofthe Threat or Lrse of Nuclear Weapons, ICJ Reports,
1996, pp. 226,240; 110 ILR, p. 163.
""CJ,
Order of 10 September 2001.
lo'

266

I N T E R N A T I O N A L LAW

fact' had appeared since that state had become a new member of the UN
during 2 0 0 0 . ' ~ ~Prohibition of discrimination
Apart from the overwhelming requirement of protection from physicalattack upon their very existence as a group, groups need protection fromdiscriminatory treatment as such.'" The norm of non-discrimination
thus constitutes a principle relevant both to groups and to individual
members of groups.
The International Convention on the Elimination ofAll Forms of Racial~iscrimination'" was signed in 1965 and entered into force in 1969. It
builds on the non-discrimination provisions in the UN Charter. Racial
discrimination is defined as:any distinction, exclusion, restriction or preference based o n race, colour,
descent or national or ethnic origin which has the purpose or effect ofnullifying or impairing the recognition, enjoyment or exercise, o n an equal
footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

States parties undertake to prohibit racial discrimination and guarantee equality for all in the enjoyment of a series of rights and to assure to
all within their jurisdiction effective protection and remedies regarding
such human rights.ll3 It is also fair to conclude that in addition to theexistence of this Convention, the prohibition of discrimination on racial
grounds is contrary to customary international law.li4 This conclusion
may be reached on the basis inter alia of articles 55 and 56 of the UN
Charter, articles 2 and 7 of the Universal Declaration of Human Rights,'lo

See further below, chapter 19, p. 998.

"' See e.g. Rehman, International Hunlan Riglzts Law, chapter 10; Joseph et al., International
Coveriant, chapter 23; 4. Bayefsky, 'The Principle of Equality or Non-discrimination inInternational Law', 11 HRLJ, 1990, p. 1; 1. Greenberg, 'Race, Sex and Religious Discrimination' in Meron, Hurrian Rights in International Latv, p. 307; hT.
McKean, Equality andDiscrimirzation tlrzder Internatiorial Law, Oxford, 1983, and T. Meron, Human Rights
Law-Making in the Uriited Nations, Oxford, 1986, chapters 1-3.
' I 2 See e.g. N. Lerner, The CN Convention on the Elirrzination ofAll Forms of Racial Discrimination, 2nd edn, Dordrecht, 1980.
'I' See further below, p. 289, with regard to the establishment of the Committee on the
Elimination of Racial Discrimination. Note also the Convention on the Suppression andPunishment of the Crime of Apartheid, 1973.
' I 4 See e.g. the Dissenting Opinion of Judge Tanaka in the South-West Afi-ica cases, ICJ
Reports, 1966, pp. 3,293; 37 ILR, pp. 243,455.

T H E PROTECTION OF H U M A N RIGHTS

267

the International Covenants on Human right^,"^ regional instruments
on human rights protectionllh and general state practice. Discrimination on other grounds, such as religion117 and gender,l18 may also becontrary to customary international law. The International Covenant on
Civil and Political Rights provides in article 2(1) that all states parties
undertake to respect and ensure to all individuals within their territories
and within their jurisdictions the rights recognised in the Covenant 'without distinction of any kind such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or
See below, p. 292.
""eehelow, p. 321 Sf.
See e.g. the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, 1981, Generdl Assemhly resolution 36155 and theappointment of a Special Rapporteur to examine situations inconsistent with the Declaration by the UN Commission on Human Rights, resolution 1986120 of 10 March 1986.
The initial one-year term has since been renewed and then extended to two-yearly thenthree-yearly terms: see e.g. resolutions 1988155 and 2001142. See Odio Benito, Elimiization ofAll Foriizs oflntolerance and Discrilninatiorz based on Religion or Belief; Ne~vYork,of the Declaration on the Elimination of All
1989, and Report on the In~plen~entation
Forms of Intolerance and of Discrimination Based on Religion or Belief, ElCN.411995191,
1994. The UN H ~ u n a nRights Committee has produced a General Cominent on article
18 concerning freedom of thought, conscience and religion, see General Comment 22,
1993, HRIlGENlllRev.1, 1994, and Joseph et al., International Covenant, chapter 17. Notealso S. Neff, 'An Evolving International Legal Norin of Religious Freedom: Problems andProspects: 7 California \Vestern International Law Jo~irnal,1975, p. 543; A. Krishnaswami,
Study of Discrinzir~ationin the Matter of Religious Rights and Practices, New York, 1960,
ElCN.4lSub.21200lRev.1; N. Lerner, 'Towards a Draft Declaration against Religious Intolerance and Discrimination: 11 Israel Yearbook on Htimar~Rights, 1981, p. 82; B. Tahzib,
Freedorn of Religion or Belief: EnsuringEffective lnterr~ationalLegal Protection, Dordrecht,
1995, and B. Dickson, 'The United Nations and Freedom of Religion', 44 ICLQ, 1995,
p. 327.
I l 8 See the Convention on the Elimination of All Forms of Discrimination Against Women
1979, below, p. 300. Article 1 of the Convention provides that discrimination against
women means anv distinction, exclusion or restriction made on the basis of sex which
has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise
by women, irrespective of their marital status, on a basis of equality with men andwomen,of human rights and fundamental freedoms in the political, economic, social, cultural,
civil or any other field. See e.g. McKean, Equality, chapter 10; Bayefsky, 'Equality', andhferon, Human Rights Latv-Making, chapter 2. See also J. hlorsink, 'Women's Rights
in the Universal Declaration', 13 HRQ, 1991, 17. 229; R. Cook, 'Women's International
Human Rights Law', 15 HRQ, 1993, p. 230; Hurnan Rightx o f Wornen (ed. R. Cook),
Philadelphia, 1994, and M. A. Freeman and A. S. Fraser, 'Women's Human Rights' inHerkin and Hargrove, Htlinarl Rights: An Agenda for the Next Century, p. 103. Note also
the UN General Assembly Declaration on Elimination of Violence against Women, 33
ILM, 1994, p. 1049. See also the London Declaration of International Law Principles on
Internally Displaced Persons adopted by the International Law Association, Report of the
Sixty-Ninth Conference, London, 2000, p. 794.

]I5

268

I N T E R N A T I O N A L LAW

other status:l19 Article 26 stipulates that all persons are equal before thelaw and thus, 'the law shall prohibit any discrimination and guarantee
to all persons equal and effective protection against discrimination on
any ground such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status:l2' The
UN Human Rights Committee established under this Covenant121 has
noted in its General Comment 18 on on-~iscrimination'~~ that nondiscrimination 'constitutes a basic and general principle relating to theprotection of human rights'. The Committee, while adopting the definition of the term 'discrimination' as used in the Racial Discrimination and
Women's Discrimination Conventions, concludes that it should be understood to imply any distinction, exclusion, restriction or preference which
is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or otherstatus and which has the purpose or effect of nullifying or impairing therecognition, enjoyment or exercise by all persons, on an equal footing, of
all rights and freedoms.
The principle of non-discrimination requires the establishment ofequality in fact as well as formal equality in law. As the Permanent Courtof International Justice noted in the Minority Schools iiz Albania case,lZ3'equality in law precludes discrimination of any kind; whereas equality in fact may involve the necessity of different treatment in order toattain a result which establishes an equilibrium between different situa t i o n ~ ' . 'The
~ ~ appropriate test of acceptable differentiation in such circumstances will centre upon what is just or reasonable125or objectively
See also, for example, articles 2(2) and 3 of the International Covenant on Economic, Social and Cultural Rights, 1966. See M. C. Craven, The IfiterfiationalCovenant on Econoniic,
Social and Cultural Rights, Oxford, 1995, chapter 4, and see further below, p. 286.
"O Note that this provision constitutes an autonomous or free-standing principle, whereas
article 2(1) of that Covenant and articles 2 of the Universal Declaration of Human Rights,
14 of the European Convention on Human Rights and 2(1) of the Convention on the
Rights of the Child prohibit discrimination in the context of specific rights and freedoms
laid down in the instrument in question: see Bayefsky, 'Equality: pp. 3-4, and the Human
Rights Committee's General Comment on Non-Discrimination, paragraph 12.
'" See further below, p. 292.
lZ2 Adopted on 9 November 1989, CCPRICIRev.lIAdd.1.
12' PCIr, Series AIB, No. 64,p. 19 (1935); 8 AD, pp. 386, 389-90.
12"eealso the Human Rights Committee's General Comment on Non-Discrimination,
paragraph 8.
12' See Judge Tanaka's Dissenting Opinion in the South-West Africa cases, ICT Reports, 1966,
pp. 3, 306; 37 ILR, pp. 243,464.

'I9

THE PROTECTION OF HUMAN RIGHTS

269

and reasonably j ~ s t i f i e d . 'The
~ ~ application of equality in fact may also
require the introduction of affirmative action measures in order to diminish or eliminate conditions perpetuating discrimination. Such measureswould need to be specifically targeted and neither absolute nor of infinite
d~rati0n.l~~
The principle of self-determination as a human right128
The right to self-determination has already been examined in so far as it
relates to the context of decolonisation.'" The question arises whether
this right, which has been widely proclaimed, has an application beyond
the colonial context. Article 1 of both International Covenants on Human Rights provides that 'all peoples have the right to self-determination.
By virtue of that right they freely determine their political status andfreely pursue their economic, social and cultural development', while theHelsinki Final Act of 1975l3' refers to 'the principle of equal rights and
""ee

'"
'"

e.g. the Belgian Lingtristics case, European Court of Human Rights, Series A, No. 6,
1986, para. 10; 45 ILR, pp. 114, 165. See also the Anzendments to the Natz~mlisationProvisions of the Coizstittltioiz of Costa Rica case, Inter-American Court of Human Rights,
1984, para. 56; 5 HRLJ, 1984, p. 172, and the Human Rights Committee's General Comment on Non-Discrimination, paragraph 13, which notes that 'not every differentiationof treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the
Coyenant'.
See the Human Rights Committee's General Comment on Non-Discrimination, paragraph 10. See also article l ( 4 ) of the Racial Discrimination Convention, article 4(1) of
the Women's Discrimination Convention and article 27 of the International Covenant on
Civil and Political Rights.
See e.g. K. Knop, Diversity and Self-Determination in International Law, Cambridge,
2002; T. D. Musgrave, Self-Determination and Ncztional ~Vinorities,Oxford, 1997; W.
Ofuatey-Kodjoe, 'Self Determination' in United Nations Legal Order (eds. 0.Schachterand C. C. Joyner), Cambridge, 1995, vol. I, p. 349; A. Cassese, Self-Determination ofPeoples, Cambridge, 1995; Modern Latv of Self-Determinatiorl (ed. C. Tomuschat), Dordrecht,
1993; Higgins, Problettzs and Process, chapter 7; T. Franck, The Power ofLegitimacy Atnotzg
Nations, Oxford, 1990, pp. 153 ff.; Franck, 'Fairness in the International and Institutional System', 240 HR, 1993 111, pp. 13, 125 ff.; The Rights of Peoples (ed. J. Crawford),
Oxford, 1988; Peoples and Minorities in blternational Law (eds. C. Brolmann, R. Lefeberand h1. Zieck), Dordrecht, 1993, and P. Thornberry, 'Self-Determination, Minorities,
Human Rights: A Review of International Instruments: 38 ICLQ, 1989, p. 867. See also
M. Koskenniemi, 'National Self-Determination Today: Problems of Legal Theory andPractice: 43 ICLQ, 1994, p. 241; G. Simpson, 'The Diffusion of Sovereignty: SelfDetermination in the Post-Colonial Age: 32 Stanford Journal of International Law, 1996,
p. 255, and R. McCorquodale, 'Self-Determination: A Human Rights Approach', 43 ICLQ,
1994, p. 857.
See above, chapter 5, p. 225.
130 See further below, p. 346.

"'

270

I N T E R N A T I O N A L LAW

self-determination.. . all peoples have the right, in full freedom, todetermine, when and as they wish, their internal and external politicalstatus, without external interference, and to pursue as they wish theirpolitical, economic, social and cultural development'. Article 20 of theAfrican Charter on Human and Peoples' Rights, 1981'~'stipulates that'all peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social
development according to the policy they have chosen.' The 1970 Declaration on Principles of International Law Concerning Friendly ~ e l a t i o n s ' ~ ~referred to the colonial situation and noted that subjection of peoples toalien subjugation, domination and exploitation constituted a violation of
the principle. A number of UN resolutions have discussed the relevanceof self-determination also to situations of alien occupation where the useof force has been inv01ved.l~~
The International Law Commission in 1988
expressed its view that the principle of self-determination was of universal
application,'3~hilethe practice of the UN Human Rights Committee
has been of particular significance.
Before this is briefly noted, one needs to refer to the crucial importancenorm protects the territoof the principle of territorial integrity.'""hisrial framework of independent states and is part of the overall conceptof the sovereignty of states. In terms of the concept of the freezing ofterritorial boundaries as at the moment of independence (save by mutual
consent), the norm is referred to as utipossidetis j ~ r i s . " ~This posits thatboundaries established and existing at the moment of independence cannot be altered unless the relevant parties consent to change. It is supported
by international instruments"' and by judicial pronouncement. In the
See further below, p. 363.
General Assembly resolution 2625 (XXL').
See, for an examination of state practice, e.g. Cassese, Self'Deterrninution, pp. 90-9.
Yeul-book of the ILC, 1988, vol. 11, Part 2, p. 64.
13' General Assembly resolution 1514 (XV) 1960 (the Colonial Declaration) underlines that'any attempt at the partial or total disruption of the national unity and the territorial
integrity of a country is incompatible with the purposes and principles of the Charter of
the UN', ~vhileresolution 2625 (XXV)1970 (the Declaration on Principles ofInternationa1
Law Concerning Friendly Relations) emphasises that 'nothing in the foregoing paragraphs
shall be construed as authorising or encouraging any action which would dismember
or impair, totally or in part, the territorial integrity or political unity of sovereign or
independent states'. See further below, chapter 8, p. 443.
See further below, chapter 8, p. 446.
See e.g. General Assembly resolutions 1514 (XV) and 1541 (XV) and Organisation of
African Unity resolution 16 (I) 1964.
"I

"'

'"

THE PROTECTION OF HUMAN RIGHTS

271

Burkina Faso/Mali case,'38 the Chamber of the International Court of Justice emphasised that uti possidetis constituted a general principle, whose
purpose was to prevent the independence and stability of new states frombeing endangered by fratricidal struggles provoked by the challenging offrontiers. This essential requirement of stability had induced newly independent states to consent to the respecting of colonial borders 'and to takeaccount of it in the interpretation of the principle of self-determinationof peoples'. The Arbitration Commission of the European Conference
on Yugoslavia emphasised in Opinion No. 2'" that 'it is well establishedthat, whatever the circumstances, the right to self-determination must
not involve changes to existing frontiers at the time of independence ( u t ipossidetis juris) except where the states concerned agree otherwise'.
The principle of self-determination, therefore, applies beyond the colonial context, within the territorial framework of independent states.'" It
cannot be utilised as a legal tool for the dismantling of sovereign states.
Its use, however, as a crucial principle of collective human rights141 has
been analysed by the Human Rights Committee in interpreting article 1of the Civil and Political Rights ~ 0 v e n a n t . Inl ~its~ General Comment on'" ICJ Reports, 1986, pp. 554,566-7; 80 ILR, pp. 440,470-1.
'39

92 ILR, pp. 167, 168. See further above, chapter 5, p. 183.

140 The clause in the 1970 Declaration on Principles ofInternationalLaw Concerning Friendly

Relations stating that nothing in the section on self-determination shall be construed as
authorising or encouraging the dismembering or inlpairing of the territorial integrityof states conducting themselves in compliance with the principle of self-determination'as described above and thus possessed of a government representing the whole people
belonging to the territory without distinction as to race, creed or colour' may be seen,
first, as establishing the primacy of the principle of territorial integrity and, secondly, as
indicating the content of self-determination within the territory. l a e t h e r it also can beseen as offering legitimacy to secession from an independent state in exceptional circumstances is the subject of much debate. Cassese, for example, concludes that 'a racial or
religious group may attempt secession, a form of external self-determination, when it isapparent that internal self-determination is absolutely beyond reach. Extreme and unremitting persecution and the lack of any reasonable prospect for peaceful challenge may
make secession legitimate', Self-Determination, p. 120. See also R. Rosenstock, 'The Declaration on Principles of International Law', 65 AIIL, 1971, pp. 713, 732. It would appear
that practice demonstrating the successful application of even this modest proposition islacking.
Note Brownlie's view that the principle of self-determination has a core of reasonablecertainty and this consists in 'the right of a con~munity~vhichhas a distinct character tohave this character reflected in the institutions of government under which it lives', 'The
Rights of Peoples in International Law' in Crawford, Rights ofPeoples, pp. 1, 5.
14' See in particular D. McGoldrick, The Ht~rnariRights Committee, Oxford, 1994, chapter 5;
Cassese, Self-Determination, pp. 59 ff., and M. Nowak, UN Covenant on Civil and Political
Rights, CCPR Commentary, Kehl, 1993, part 1.

'"

272

I N T E R N A T I O N A L LAW

Self-Determination adopted in 1 9 8 4 , ' ~the~ Committee emphasised thatthe realisation of the right was 'an essential condition for the effective
guarantee and observance of individual human rights: Nevertheless, theprinciple is seen as a collective one and not one that individuals could seek
to enforce through the individual petition procedures provided in the First
Optional Protocol to the C 0 ~ e n a n t .Thel ~ ~Committee takes the view, as
Professor ~ i g g i n s l ~noted,146'
that 'external self-determination requiresa state to take action in its foreign policy consistent with the attainmentof self-determination in the remaining areas of colonial or racist occupation. But internal self-determination is directed to their own peoples.'In the context of the significance of the principle of self-determination
within independent states, the Committee has encouraged states parties
to provide in their reports details about participation in social and political structure^,'^^ and in engaging in dialogue with representatives ofstates parties, questions are regularly posed as to how political institutions operate and how the people of the state concerned participate in
the governance of their state.148This necessarily links in with consideration of other articles of the Covenant concerning, for example, freedomof expression (article 19)) freedom of assembly (article 21)) freedom of
association (article 22) and the right to take part in the conduct of public

14'

General Comment 12: see H R I I G E N I ~ I R ~ vp.. ~12,
, 1994.

'" See the Kitok case, Report of the Human Rights Committee, A143140, pp. 221, 228; 96
11, pp. 1, 27; 96 ILR, pp. 667,
ILR, pp. 637, 645; the Lubicoii Lake Band case, A145140,~~ol.
702; EP v. Colombia, Al45140, uol. 11, pp. 184, 187, and RL v. Canada, A147140, pp. 358.
365. However. in l\lahuika et al. v. New Zealaiid. the Committee took the view that theprovisions of article 1 may be relevant in the interpretation of other rights protected by
the Covenant, in particular article 27 on the rights of persons belonging to minorities,
Al56140, vol. 11, annex X, A. See also Diergaardt et al. v. Namibia, Al55140, vol. 11, annex
IX, sect. M, para. 10.3.
14'
A member of the Committee from 1985 to 1995.
l d 6 ~ i g g i n s'Postmodern,
Tribalism and the Right to Secession' in Brolmann et al., Peoples
arid Minorities in International Law, p. 3 1 .
14' See e.g. the report of Colombia, CCPRlCl64lAdd.3, pp. 9 ff., 1991. In the third periodic
report of Peru, it was noted that the first paragraph of article 1 of the Covenant 'lays
down the right of every people to self-determination. Under that right any people is able
to decide freely on its political and economic condition or regime and hence establish
a form of government suitable for the purposes in view. To this effect Peru adopted asits form of government the republican system which was embodied in the constitutionof 1979, which stated that Peru was a democratic and social independent and sovereign
republic based on work with a unitary representative and decentralised government',
CCPRICI83IAdd.1, 1995, p. 4.
See e.g. with regard to Canada, A146140, p. 12. See also A145140, pp. 120-1, with regard
to Zaire.

'"T H E PROTECTION OF H U M A N RIGHTS

273

affairs and to vote (article 25). The right of self-determination, therefore,
provides the overall framework for the consideration of the principles rel ~ ~ Committee on the Elimination
lating to democratic g 0 ~ e r n a n c e . The
of Racial Discrimination adopted General Recommendation 21 in 1996
in which it similarly divided self-determination into an external and aninternal aspect and noted that the latter referred to the 'right of every
citizen to take part in the conduct of public affairs at any level'.''' The
Canadian Supreme Court has noted that self-determination 'is normallyfulfilled through internal self-determination - a people's pursuit of its political, economic, social and cultural development within the frameworkof an existing state'.'jl
The protection of minorities15*
Various attempts were made in the post-First World War settlements,
following the collapse of the German, Ottoman, Russian and AustroHungarian Empires and the rise of a number of independent nationbased states in Eastern and Central Europe, to protect those groups
to whom sovereignty and statehood could not be granted.153Persons
86 AJIL, 1992, p. 46.
See also P. Thornberry, 'The Democratic or Internal Aspect of Self-Determination' inTomuschat, Modern Laiv of Self-Deteri~zination,p. 101.
lSO Al51118.
l5' The Quebeccase, (1998) 161 DLR (4th) 385,437-8; 115 ILR, p. 536.
15' See e.g. 0ppenhei111'sInternutional Law, p. 972 ff.; Nowak, Uh'Covenant, pp. 480 ff.;
R. Higgins, 'Minority Rights: Discrepancies and Divergencies Between the International
Covenant and the Council of Europe System' in Liber Amicorum for Henry Schern~ers,
Dordrecht, 1994, p. 193; Shaw, 'Definition of Minorities'; P.Thornberry, Ii~teri~ational
Law and Minorities, Oxford, 1991; Thornberry, 'Phoenix: and 'Self-Determination', p.
867; F. Ernlacora, 'The Protection of Minorities before the UN', 182 HR, 1983 IV, p. 251;
G. Alfredsson, 'Minority Rights and a New T170rldOrder' in Broadeni~zgthe Frontiers of
Hz~itlanRights:Essays in Honour ofA. Eide (ed. D. Gomien), Oslo, 1993; G. Alfredsson and
A. M. de Zayas, 'Minority Rights: Protection by the UN', 14 HRLI, 1993, p. 1; Brolmann
in International Law: The Protection of Ethnic and Liilgz{istic
et al., Peoples and LWii~orities
Minorities in Europe (eds. 1. Packer and K. hfyntti), Turku, 1993; Docume~ztson Atrto~zorr~yand Minority Rights (ed. H. Hannum), Dordrecht, 1993; N. Rodley, 'Conceptual Problems
in the Protection of Minorities: International Legal Developments', 17 HRQ, 1995, p. 48;
A. Fenet et al., Le Droit et les Minoritks, Brussels, 1995; J. Rehman, The Weakness ill the
Ir~ternatio~zal
Protection o f Minority Rights, The Hague, 2000, and I~lternationalHtnrzan
Rights Law, chapters 11 and 12; Musgrave, Self-Determination, and Minority and Group
Rights in the New Millennium (eds. D. Fottrell and B. Bowring), The Hague, 1999. See
also the Capotorti Study on the Rights of Persons Belonging to Ethnic, Religious and
Linguistic Minorities, ElCN.41Sub.21384/Rev.l, 1979.
l S 3 The minorities regime of the League consisted of five special minorities treaties binding Poland, the Serbo-Croat-Slovene state, Romania, Greece and Czechoslovakia; special
149 See T. Franck, 'The Emerging Right to Democratic Governance:

274

I N T E R N A T I O N A L LAW

belonging to racial, religious or linguistic minorities were to be given
the same treatment and the same civil and political rights and security
as other nationals in the state in question. Such provisions constituted
obligations of international concern and could not be altered without
the assent of a majority of the League of Nations Council. The Council
was to take action in the event of any infraction of minorities' obligations. There also existed a petition procedure by minorities to the League,although they had no standing as such before the Council or the Permanent Court of International ~ u s t i c e .However,'~~the schemes of protection did not work well, ultimately for a variety of reasons ranging
from the sensitivities of newly independent states to international supervision of minority issues to overt exploitation of minority issues by Nazi
Germany in order to subvert neighbouring countries. After the Second
World War, the focus shifted to the international protection of universal individual human rights, although several instruments dealing withspecific situations incorporated provisions concerning the protection ofminorities,'" and in 1947 the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities was established.'j6 It wasnot, however, until the adoption of the International Covenant on Civil
and Political Rights in 1966 that the question of minority rights cameback onto the international agenda. Article 27 of this Covenant provides
that 'in those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in
community with the other members of their group, to enjoy their own
culture, to profess and practise their own religion, or to use their own
language'.
minorities clauses in the treaties of peace with Austria, Bulgaria, Hungary and Turkey;
five general declarations made on admission to the League by Albania, Latvia, Lithuania,
Estonia and Iraq; a special declaration by Finland regarding the Aaland Islands, andtreaties relating to Danzig, Upper Silesia and Memel: see generally Thornberry, International Law and Minorities, pp. 38 ff.
In the early 1930s several hundred petitions were received but this dropped to virtually nil
by 1939: see Thornberry, International Latv and Minorities, pp. 434-6, and the Capotorti
Report on the Rights of Persons belonging to Ethnic, Religiotls and Lingtristic Minorities,
1979, E/CN.4/Sub.21384/Rev.l, pp. 20-2. See also Macartney, National States, pp. 370 ff.;
1.Stone, Ir~ternationalGuarantees ofMinority Rights, London, 1932, and Richard, Le Droit
de Petition, Paris, 1932.
See e.g. Annex IV of the Treaty of Peace with Italy, 1947; the Indian-Pakistan Treaty, 1950,
and article 7 of the Austrian State Treaty, 1955. See also the provisions in the documents
concerning the independence of Cyprus, Cmnd 1093, 1960.
'j6 See further below, p. 285.

'"'"

T H E PROTECTION OF H U M A N RIGHTS

275

This modest and rather negative provision as formulated centres upon
'persons belonging' to minorities rather than upon minorities as suchand does not define the concept of minorities.lj7 Nevertheless, the UN
Human Rights Committee has taken the opportunity to consider theissue in discussing states' reports, individual petitions and in a General
Comment. In commenting upon states' reports made pursuant to theInternational Covenant, the Committee has made clear, for example, thatthe rights under article 27 apply to all members of minorities within a stateparty's territory and not just national^,'^^ and it has expressed concern
with regard to the treatment of minorities within particular states.'59
In the Loveluce case,'" the Committee decided that there had been aviolation of article 27 with regard to an Indian woman who, by having
married a non-Indian, had lost her rights by Canadian law to reside on the
Tobique Reserve, something which she wished to do upon the collapse ofher marriage. The Committee noted that statutory restrictions affecting
the right to residence on a reserve of a person belonging to the minority
concerned had to have both a reasonable and objective justification andbe consistent with the other provisions of the Covenant read as a whole.
This had not been the case. There was no place outside the reserve where
her right to access to her native culture and language could be conductedin community with other members of the minority in question.
In the Kitok case,161 the Committee took the view with regard to apetition by a member of the Sami community in Sweden that where theregulation of economic activity was an essential element in the culture
15/ Attempts to define minorities have invariably focused upon the numerically inferior

numbers of minorities and their non-dominant position, the existence of certain objective features differentiating them from the majority population (e.g. ethnic, religious or
linguistic) coupled with the subjective wish of the minority concerned to preserve thosecharacteristics. See e.g. Shaw, 'Definition of Minorities: and the Capotorti Report, p. 96.
See also Council of Europe Assembly Recommendation 1255 (1955), HlInf (95) 3, p. 88.
Note that the Human Rights Committee in the Bulluntynecase held that English-speaking
citizens in Quebec did not constitute a minority since the term 'minority' applied to thewhole state and not a part of it, 14 HRLJ, 1993, pp. 171, 176.
l S 8 See e.g. comments upon Norway's third periodic report, Al49140, p. 23 and Japan's third
periodic report, ibid., p. 25. See also Joseph et al., Irlterrlationnl Covenant, chapter 24.
l S 9 See e.g. with regard to the third periodic report of Romania, Al49140, p. 29 and that of
Mexico, ibid., p. 35, and the fourth periodic report of Russia, CCPRlCl79lAdd.54, p. 5
and that of Ukraine, CCPRlCl79lAdd.52, p. 4.
160 I Selected Decisions ofthe H ~ ~ i n Rights
anCorninittee, 1985, p. 83; 68 ILR, p. 17.
16' A143140, p. 221; 96 ILR, p. 637. See also the Liinsrnail cases against Finland, 511192 and671195: 115 ILR, p. 300.

276

I N T E R N A T I O N A L LAW

of an economic community, its application to an individual could fallwithin article 27. It was emphasised that a restriction upon an individual
member of a minority must be shown to have a reasonable and objective
justification and to be necessary for the continued viability and welfareof the minority as a whole.
In the Lubicon ~ u k eand case,'62the Committee upheld the complaintthat the Canadian Government, in allowing the Provincial Governmentof Alberta to expropriate the Band's territory for the benefit of private
corporate interests, violated article 27. It was held that the rights protectedunder article 27 included the right of persons in community with others
to engage in economic and social activities which were part of the cultureof the community to which they belonged.
The Committee adopted a General Comment on article 27 in 1994 after
much discussion and hesitation due to fears that such a comment might
be perceived to constitute an encouragement to ~ e c e s s i o n .The
' ~ ~ General
Comment pointed to the distinction between the rights ofpersons belonging to minorities on the one hand, and the right to self-determination andthe right to equality and non-discrimination on the other. It was emphasised that the rights under article 27 did not prejudice the sovereignty andterritorial integrity of states, although certain minority rights, in particular those pertaining to indigenous communities, might consist of a wayof life closely associated with territory and the use of its resources, suchas fishing, hunting and the right to live in reserves protected by law. The
Committee, in an important part of the General Comment, underlinedthat persons belonging to a minority need not be nationals or permanent
residents of the state concerned so that migrant workers or even visitors
might be protected under article 27. Whether an ethnic, religious or linguistic minority exists was an objective question, not dependent upon adecision of the state party. Although article 27 is negatively formulated,
the Committee pointed out that positive measures of protection were required not only against the acts of the state party itself, but also against theacts of other persons within the state party. Positive measures may also benecessary to protect the identity of the minority concerned and legitimate
differentiation was permitted so long as it was based on reasonable andobjective criteria.
The UN General Assembly adopted a Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities
16'
16'

A145140,~~ol.
11, p. 1; 96 ILR, p. 667.
General Comment No. 23, HRI/GEN/l/Rev.l, p. 38.

THE PROTECTION OF HUMAN RIGHTS

277

in December 1 9 9 2 . ' ~Article~
1 provides that states 'shall protect the existence and the national or ethnic, cultural, religious and linguistic identityof minorities within their respective territories' and shall adopt appropriate legislative and other measures to achieve these ends. The Declaration
states that persons belonging to minorities have the right to enjoy theirown culture, practise and profess their own religion and to use their own
language in private and in public without hindrance. Such persons also
have the right to participate effectively in cultural, social, economic andpublic life.
The UN Sub-Commission has been considering the question of minorities for many years and in 1994 agreed to establish a five-person
inter-sessional working
to examine peaceful and constructive
solutions to situations involving minorities and, in particular, to review
the practical application of the Declaration, to provide recommendations
to inter alia the Sub-Commission and the UN High Commissioner for
Human Rights to protect minorities where there is a risk of violence andgenerally to promote dialogue between minority groups in society andbetween those groups and governments. The issue of minority rights has
been taken up recently particularly by European states, primarily as aconsequence of the demise of the Soviet Union and its empire in Eastern Europe and the reintegration of Eastern and Central European states
within the political system of Western Europe. The specific response toquestions of minority rights within the Council of Europe and the Conference (as from 1995 Organisation) on Security and Co-operation in
Europe are addressed be10w.l~~
As has been noted, the UN Human Rights Committee has pointed tothe special position of indigenous peoples as minorities with a particular
relationship to their traditional territory. It has been accepted that such
communities form a specific category of minorities with special needs.'67
Resolution 471135. See e.g. The UNMinority Right5 Declaration (eds. A. Phillips and A.
Rosas), London, 1993.
165 E1CN.41Sub.211994156.This was authorised by the Commission on Human Rights on 3
hfarch 1995: see resolution 1995124. See also E1CN.41Sub.211995151.
166 See below, p. 346.
16' See e.g. S. Marquardt, 'International Law and Indigenous Peoples', 3 International Jourrzal
on Group Rights, 1995, p. 47; 1. Berger and P. Hunt, 'Towards the International Protectionof Indigenous Peoples' Rights: 12 NQHR, 1994, p. 405; C. Tennant, 'Indigenous Peoples,International Institutions, and the International Legal Literature from 1945-1993; 16
HRQ, 1994, p. 1; E. Stamatopoulou, 'Indigenous Peoples and the United Nations: Humail
Rights as a Developing Dynamic: 16 HRQ, 1994, p. 58; Crawford, Rights of Peoples; R.
Barsh, 'Indigenous Peoples: An Emerging Object of International Law', 80 AJIL, 1986,

278

I N T E R N A T I O N A L LAW

The International Labour Organisation adopted Convention No. 107 on
Indigenous andTriba1 Populations in 1957, an instrument with a predominantly assimilationist approach to the question of indigenous peoples.
It was partially revised in Convention No. 169 on Indigenous and Tribal
Peoples in Independent Countries, 1989. The change in terminology from
'populations' to 'peoples' is in~tructive'~'and the latter Convention focuses far more upon the protection of the social, cultural, religious andspiritual values and practices of indigenous peoples. Unlike the prevailing approach to the definition of minorities generally which intermingles
objective and subjective criteria, this Convention stipulates in article l ( 2 )that 'self-identification as indigenous or tribal shall be regarded as a fundamental criterion' for determining the groups to which the Convention ap plies. The Sub-Commission recommended that a study of discrimination
against indigenous populations should be made and this was completed
in 1 9 8 4 . ' ~A~definition of indigenous populations was suggested and various suggestions made as to future action. In 1982, the Sub-Commission
s ~ ~a~Draft
established a Working Group on Indigenous ~ o p u l a t i o n and
Declaration on the Rights of Indigenous Peoples was adopted in 1994."'
This Draft Declaration notes that indigenous peoples have the right toself-determination (article 3) and the right to maintain and strengthen
their distinctive political, economic, social and cultural characteristics, aswell as their legal systems, while retaining the right to participate fully inthe life of the state (article 4). Indigenous peoples are deemed to have thecollective right to live in freedom and security as distinct peoples (article6) and the collective and individual rights to protection from ethnocideand cultural genocide (article 7). Their collective and individual rights tomaintain and develop their distinct identities is particularly emphasised
p. 369; J. Anaya, Indigenolls Peoples in International Law,Oxford, 1996, and G. Bennett,
Aboriginal Rights in Internatioi~alLazu, London, 1978. See also lz~sticePending: Indigenous
Peoples und Other Good Causes (eds. G. Alfredsson and M. Stavropoulou), The Hague,
2002. Note in particular the cases of Delgamuuk~vr. Britijh Columbia (1998) 153 DLR(4th) 193; 115 ILR, p. 446, Canadian Supreme Court, and lLlabo v. State of Qz~eensland(No. 1 ) (1988) 83ALR 14; 112ILR,p.412 and (lVo. 2) (1992) 107ALR1; 112 ILR,p.457. See
also The Richtersveld Comnitnzity case, 24 March 2003, Supreme Court of South Africa.
B L Inote~ that the Convention provides that the use of the term 'peoples' is not to beconstrued as having any implication as regards the rights that may attach to the term
under international law (article l ( 3 ) ) .
'69 The Martinez Cobo Report, ElCN.4lSub.21198617and Adds. 1-4.
17' See ElCN.4lSub.211982133.
See resolution 1994145, ElCN.4lSub.211994156,p. 103. See also R. T. Coulter, 'The Draft
UN Declaration 011 the Rights of Indigenous Peoples: Ttrhat Is It? What Does It Mean?',
13 NQHR, 1995, p. 123.

'""'T H E PROTECTION OF H U M A N RIGHTS

279(article 8), while the Declaration lists their rights to practise their cultural
traditions, and to education, access to media and health practices, together with a range of rights concerning their distinctive relationship tothe land (articles 25-30)."~ AVoluntary Fund for Indigenous Populations
was established in 1985Ii3 and a permanent forum for indigenous people
is currently being sought.Ii4 The Sub-Commission has also been studying the question of the heritage of indigenous peopleIi5 and the issue oftreaties, agreements and other constructive arrangements between statesand indigenous population^.'^^The question of indigenous peoples is also under discussion within the
Organisation ofAmerican States.177The Inter-American Court of Human
Rights discussed the issue of the rights of indigenous peoples to ancestral
lands and resources in The Mayagna (Sumo) Awas Tingni Community v.
Nicaraguain 2001 .17"he Court emphasised the communitarian tradition
regarding a communal form of collective property of the land and consequential close ties of indigenous people with that land,179and noted thatthe customary law of such people had especially to be taken into accountso that 'possession of the land should suffice for indigenous communities
lacking real title'.lsO
The Coinmission on Human Rights in resolution 1995132, 3 March 1995, decided
to establish an open-ended intersessional working group of the Commission to elaborate a draft declaration considering the draft submitted by the Sub-Commission.
This was authorised by the Economic and Social Council in resolution 1995132, 25
Iuly 1995.
173 See General Assembly resolution 401131.
174 See resolution 1995139, ElCN.4lSub.211995151, p. 91. Note that 1993 was designatedInternational Year of the MTorld's Indigenous Peoples, see EICN.4I1994lAC.4lTN.412,
while the International Decade of the World's Indigenous Peoples was declared by theGeneral Assembly on 10 December 1994. See also the Committee on the Eliminationof Racial Discrimination's General Recommendation 23 on Indigenous Peoples, 1997,
A152118, annex V.
17' See EICN.4ISub.2I1995126,proposing a set of Principles and Guidelines for the Protectionof the Heritage of Indigenous People.
See e.g. resolution 19951118, ElCN.4lSub.211995151, p. 99. Note that a report wascompleted on indigenous peoples and their relationship to their land in 2001,
ElCN.4lSub.21200 1121. A Special Rapporteur on the Human Rights of Indigenous People
was appointed by the Commission in 2001: see resolution 2001157.
AS to the Draft Declaration on the Rights of Indigenous Peoples adopted by the InterAmerican Cominission on Huinan Rights on 18 September 1995, see below, p. 359.
17' Series C, No. 79.
17' Ibid., para. 149.
180 Ibid., para. 151. Nicaragua was held to be obliged to create 'an effecti~remechanism
for delimitation, demarcation and titling of the property of indigenous communities, in accordance with their customary law, values, customs and mores: ibid., para.
164.
17'

280

I N T E R N A T I O N A L LAW

Other suggested collective rights
The subject of much concern in recent years has been the question of aright to devel~pment.'~'In 1986, the UN General Assembly adopted the
Declaration on the Right to ~ e v e l o p m e n t . "This~ instrument reaffirms
the interdependence and indivisibility of all human rights and seeks toprovide a framework for a range of issues (article 9). The right to development is deemed to be an inalienable human right of all human beings andpeoples to participate in and enjoy economic, social, cultural and political development (article I), while states have the primary responsibility
to create conditions favourable to its realisation (article 3))including theduty to formulate international development policies (article 4). States are
particularly called upon to ensure inter alia equal opportunity for all in
their access to basic resources, education, health services, food, housing,
employment and the fair distribution of income. Effective measures areto be undertaken to ensure that women participate in the development
process and appropriate economic and social reforms are to be carriedout with a view to eradicating all social injustices (article 8). The questionof encouraging the implementation of this Declaration was the subjectof continuing UN a t t e n t i ~ n , ' ~with" the reaffirmation of the right to development by the UN Vienna Declaration and Programme of Action,
1993lS4and the establishment by the UN Commission on Human Rights
See e.g. Le Droit au Dtveloppetrient au Plan Internatiotial (ed. R. J.Dupuy), Paris, 1980; A.
Pellet, Le Droitlnternational du Dtveloppernent, 2nd edn, Paris, 1987; K. Mbaye, 'Le Droit
du Developpenlent comme un Droit de 1'Homme: 5 Revue des Droits de I'Homrne, 1972,
p. 503; Report of the UN Secretary-General on the International Dirnensior~sof the Right
to Development as a Human Right, ElCN.411334, 1979; 0 . Schachter, 'The Emerging
Law, 1976,
International Law of Development: 15 Colutr~biaJournal of Trar~sr~ational
p. 1; R. Rich, 'The Right to Development as an Emerging Human Right: 23 Va. JIL,
1983, p. 287; K. de Vey Mestdagh, 'The Right to Development: 28 NILR, 1981, p. 31; I.
Brownlie, The Hunlan Right to Development, Common~7ealthSecretariat Human Rights
Unit Occasional Paper, 1989; C. Mreeramantry, 'The Right to Development: 25 Indian
Jotrrnal ofhlternational Law, 1985, p. 482; P. Alston, 'Revitalising United Nations Worlz
on Human Rights and Development: 18 Melbourne University Latv Review, 1991, p. 216,
and T. Kunanayakam, Historical Analysis of the Principles Corztairled in the Declaration on
the Right to Development, HR1RD119901C0NF.1, 1990.
General Assembly resolution 411128.
la' Note e.g. the Global Consultation carried out in 1990, EICN.4I199019lRev.1, 1990: see
R. Barsh, 'The Right to Development as a Human Right: Results of the Global Consultation', 13 HRQ, 1991, p. 322; the Report of the UN Secretary-General, EICN.411992110,
1991 and the Concrete Proposals of the UN Secretary-General, ElCN.411993116,
1993.
l X 4 See 32 ILM, 1993, p. 1661.

'*I

THE PROTECTION OF HUMAN RIGHTS

281

of a Working Group on the Right to Development in the same year.'85It
should also be noted that Principle 3 of the Rio Declaration on Environment and Development, 1992 stipulated that 'the right to development
must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations'.ls6 While the general issueof development is clearly on the international agenda in the context of
economic issues and broad human rights concerns, it is premature to talkin terms of a legal right in international law of groups or peoples or states
to development.
Other suggested collective rights have included the right to a healthye n v i r ~ n r n e n tand
' ~ ~the right to peace.'89'"

The United Nations system - i r n p l e m e n t a t i ~ n ' ~ ~The United Nations system has successfully generated a wide-ranging
series of international instruments dealing with the establishment of
Resolution 1993122. The first report of this Working Group was at the end of 1993,
ElCN.411994121. The most recent mechanism has been the creation of an open-ended
Working Group on the Right to Development in 1998, resolutio~l1998172.
"'1
ILM, 1992, p. 876. See also below, chapter 15.
18' Note that the Committee on Economic, Social and Cultural Rights has adopted a General
Con~mentin which it is stated that international co-operation for developnlent and thus
the realisation of economic, social and cultural rights is an obligation for all states, General. ~ 48,52.
,
Comment 3 (1991), H R I I G E N I ~ I R ~ vpp.
lS8 See e.g. S. Prakash, 'The Right to the Environment. Emerging Implications in Theory
and Praxis: 13 NQHR, 1995, p. 403. See further below, chapter 15 on international
environmental law.
See e.g. General Assembly resolutions 33173 and 39111. See also R. Bilder, 'The Individual
and the Right to Peace', 11 Bulletin uf Peace Proposals, 1982, p. 387, and J. Fried, 'The
United Nations' Report to Establish a Right of the Peoples to Peace', 2 Pace Yearbook ofInternational Law, 1990, p. 21.
See The Future of U N Hurriail Rights Treaty Monitoring (eds. P. Alston and J. Crawford),
Cambridge, 2000; Steiner and Alston, Iiiternational Human Rights; Rehman, Iiiteriiational Huiiian Rights Law, chapters 2 to 5; Uriited Nations Action in the Field of Huirian
Rights, New York, 1994; The LTiiited Nations and Htrmaii Rights (ed. P. Alston), Oxford,
1992; Guide to Iriternational Huir~anRights Practice (ed. H. Hannum), 2nd edn, Philadelphia, 1992; Ramcharan, Human Rights: Thirty Years After the Universal Declaration; Uh'
Law/Fundamental Rights (ed. A. Cassese), Alphen aan den Rijn, 1979, and H. Golsong,'Implementation of International Protection of Human Rights', 110 HR, 1963, p. 7. See
also Lauterpacht, International Law, chapter 11; F. Ermacora, 'Procedure to Deal ~vith
H u m a ~Rights~
Violatio~ls',7 Revue des Droits de l'Homme, 1974, p. 670; Robertson and
Merrills, Human Rights, and A. A. Canqado Trindade, 'Co-existence and Co-ordinationof Mecha~lismsof I~lterilatioilalProtection of Hurnail Rights', 202 HR, 1987, p. 9.
18'

'"

282

I N T E R N A T I O N A L LAW

standards and norms in the human rights field.Ig1The question of implementation will now be addressed.
Political bodies - general
The General Assembly has power under article 13 of the Charter to initiate studies and make recommendations regarding inter alia human rights.
Human rights items on its agenda may originate in Economic and Social
Council (ECOSOC) reports or decisions taken by the Assembly at earlier
sessions to consider particular matters, or are proposed for inclusion by
the UN organs, the Secretary-General or member states. Most items on human rights go to the Assembly's Third Committee (Social, Humanitarianand Cultural Committee), but others may be referred to other committees such as the Sixth Committee (Legal) or the First Committee (Politicaland Security) or the Special Political Committee. The Assembly has alsoestablished subsidiary organs under Rule 161, several of which deal withhuman rights issues, such as the Special Committee on Decolonisation,
the UN Council for Namibia, the Special Committee against Apartheid,
the Special Committee to Investigate Israeli Practices in the Occupied
Territories and the Committee on the Exercise of the Inalienable Rightsof the Palestine ~ e o p l e . " ~ECOSOC may, under article 62 of theCharter, make recommendations on human rights, draft conventions for
the Assembly and call international conferences on human rights matters. It consists of fifty-four members of the UN elected by the General
Assembly and hears annually the reports of a wide range of bodies including the UN High Commissioner for Refugees, the UN Children's
Fund, the UN Conference on Trade and Development, the UN Environment Programme and the World Food Council. Of its subsidiarybodies, the Commission on Human Rights and the Commission on the
Status of Women have the most direct connection with human rights
issues.lg3
lY1 See also e.g. the Slavery Convention, 1926 and Protocol, 1953; the Supplementary Con-vention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar
to Slavery, 1956; the Convention for the Suppression of the Traffic in Persons and of the
Exploitation ofthe Prostitution of Others, 1949; the Convention on the Status of Refugees,
1951 and Protocol, 1967; the Convention relating to the Status of Stateless Persons, 1954
and the Convention on the Reduction of Statelessness 1961.
lY2 See UN Action, chapter 1. Note also the relevant roles of the other organs of theUN, the Security Council, Trusteeship Council, International Court and Secretariat,
ibid.
'" Ibid., pp. 13 ff. See also Assembly resolutions 1991B (XVIII) and 2847 (XXVI).

THE PROTECTION OF HUMAN RIGHTS

283

The Commission on Human ~ i g h t s ' ~ ~This was established in 1946 as a subsidiary organ of ECOSOC withextensive terms of reference, including making studies, preparing recommendations and drafting international instruments on human rights.
Originally consisting of forty-three representatives of member states of
the UN selected by ECOSOC on the basis of equitable geographic distribution,lg5that number was increased to fifty-three by resolution 1990148
in May 1990. For its first twenty years, it took the view that it had no power
to take any action with regard to complaints concerning human rights violations, despite receiving many via the Secretary-General.196However,in 1967, ECOSOC resolution 1235 (XLII) authorised the Commission
and its Sub-Commission on Prevention of Discrimination and Protection of Minorities to examine information relevant to gross violations ofhuman rights contained in communications, and to study such situations
as revealed a consistent pattern of violations with a view to making recommendations to E C O S O C . ' ~This~ constitutes the public debate function of
the Commission relating to specific situations. The situations in question
referred at first primarily to Southern Africa. In 1967, also, the Commission set up an ad hoc working group of experts on South Africa and hassince established working groups on Chile; Situations revealing a Consistent Pattern of Gross Violations of Human Rights; Disappearances;
the Right to Development and structural adjustment programmes andeconomic, social and cultural rights. Special rapporteurs have been appointed by the Commission to deal with situations in specific countries,
such as, for example, Afghanistan, Cuba, El Salvador, Equatorial Guinea,
Guatemala, Iran, Sudan, the Democratic Republic of the Congo and Iraq.
Special Rapporteurs have also been appointed to deal with particularthematic concerns such as summary executions, torture, mercenaries,
religious intolerance and the sale of children. In an attempt to provide
See e.g. N. Rodley, 'United Nations Non-Treaty Procedures for Dealing with Human
Rights Violations' in Hannum, Guide to Irlternational Human Rights Practice, p. 60;
Lauterpacht, International Law, chapter 11; T. Buergenthal and J. V. Torney, blternational Hnnzan Rights arld International Education, TITashington,DC, 1976, pp. 75 ff andSteiner and Alston, blternatiorlal Hurrlarl Rights, chapter 8. See also UN Action, 17. 20,
and H. Tolley, 'The Concealed Crack in the Citadel: 6 HRQ, 1984, p. 420. A Commission o n the Status of Women was also created: see UN Action, p. 15, and below,
p. 300.
lY5 See ECOSOC resolutions 6 (I), 1946; 9 (11), 1946; 845 (XXXII), 1961; 1147 (XLI), 1966
and 1979136, 1979.
lY6 See e.g. Report of the First Session of the Commission, El259, para. 22.
'" See Tolley, 'Concealed Crack: pp. 421 ff., and ECOSOC resolutioi~728F.
Iy4

284

I N T E R N A T I O N A L LAW

some co-ordination, the first meeting of special rapporteurs and othermechanisms of the special procedures of the Commission took place in
1994.l~~A series of informal working groups have also been created to prepare
drafts of international instruments, such as the Declaration on Religious
Intolerance, the Convention against Torture and instruments on minority
rights and the rights of the child.'99The Commission also established aGroup of Three pursuant to article IX of the Apartheid Convention toconsider states' reports under that Convention. In 1970 a new procedurefor dealing with human rights complaints was introduced in ECOSOC~ ~virtue~of this resolution as modified inresolution 1503 ( X L V I I I ) .By
2 0 0 0 , ~the~ ~Sub-Commission appoints annually a Working Group on
Communications to meet to consider communications received and topass on to the Sub-Commission those that appear to reveal 'a consistentpattern of gross and reliably attested violations of human rights'. These are
examined by the Working Group on Situations of the Sub-Commission
which then determines whether or not to refer particular situations to the
C o r n m i s ~ i o nThose. ~ ~ ~so transmitted are examined in two separate closed
meetings by the Commission, which then decides whether or not to takefurther action, such as appointing an independent expert or discussing
the matter under the resolution 1235 public procedure. The procedure,
which is confidential until the final stage, has not fulfilled initial highexpectations. The confidentiality requirement and the highly politicalnature of the Commission itself have combined to frustrate hopes thathave been raised.203
See ElCN.41199515. See also the report of the meeting of special rapporteurs1
representatip-esiexperts and chairpersons of working groups of the special proceduresof the Commission on Human Rights and of the advisory services programme, May
1995, ElCN.411996150.
19' See e.g. UNAction, pp. 20-3.
See e.g. P. Alston, 'The Commission on Human Rights' in Alston, United Nations andHuman Rights, pp. 126,145 ff., and M. Bossuyt, 'The Development of Special Proceduresof the United Nations Commission on Human Rights', 6 HRLJ, 1985, p. 179.
"I
ECOSOC resolution 200013.
'02 See also Sub-committee resolution 1 (XXIV),1971.
See e.g. T. Van Boven, 'Human Rights Fora at the UnitedNations' in International Htnnan
Rights Law andPractice (ed. 1. C. Tuttle), Philadelphia, 1978, p. 83; H. Moller, 'Petitioning
the United Nations', 1 Universal Hurrlan Rights, 1979, p. 57; N. Rodley, 'Monitoring
Human Rights by the UN System and Non-go~rernmentalOrganisations' in Kommers
and Loescher, H14man Rights and American Foreign Policy, p. 157, and Tolley 'Concealed
Crack: pp. 429 ff. Note that the Commission chairman now announces the names of
the countries subject to complaints under resolution 1503, although no further details
19'"'THE PROTECTION OF HUMAN RIGHTS

285

Nevertheless, many human rights issues are discussed publicly at sessions of the Commission and numerous resolutions are a d ~ p t e d , " al~though one cannot ignore the strong political currents that often preventor mitigate criticism of particular states2''

Expert bodies established by UN organs
The Sub-Commission on the Promotion and Protection of
Human ~ i ~ h t s ~ ' ~The Sub-Commission, initially entitled the Sub-Commission on Prevention of Discrimination and Protection of Minorities, was established by
the Commission in 1947 with wide terms of referen~e.~"It is composedof twenty-six members elected by the Commission on the basis of nominations of experts made by the UN member states and was renamed theSub-commission on the Promotion and Protection of Human Rights in
1 9 9 9 . ~Members'~
serve in their individual capacity for four-year terms209
and the composition must reflect an agreed geographical pattern.*'' The
Sub-Commission produces a variety of studies by rapporteurs2" and has
are disclosed: see e.g. ElCN.411984177, p. 151, naming Albania, Argentina, Benin, Haiti,
Indonesia, Malaysia, Pakistan, Paraguay, the Philippines, Turkey and Uruguay'04 See generally EICN.411984177 regarding the Commission's Fortieth Session.
'Os See e.g, the inability of the Coininissioil in 1990 eve11 to discuss draft resolutions relating
to China and Iraq: E. Zoller, '46th Session of the United Nations Commission on Human
Rights: 8(2) NQHR, 1990, pp. 140, 142. Note also the election of Libya to chair theCommission in 2003.
'Oqee e.g. A. Eide, 'The Sub-Commission on Prevention of Discrimination and Protectionof Minorities' in Alston, United Nations and Human Rights, p. 211; Tolley, 'Concealed
Crack', pp. 437 ff.; J. Gardeniers, H. Hannum and C. Kruger, 'The UN Su~b-Committee
on Prevention of Discrimination and Protection of Minorities: Recent Developments', 4
HRQ, 1982, p. 353, and L. Garber and C. O'Conner, 'The 1984 UN Sub-Commission on
Prevention of Discrimination and Protection of Minorities', 79 AJIL, 1985, p. 168. See
also U,VAction, pp. 2 3 4 .
'07 See e.g. UhrAction,p. 23. See also resolutions El259,1947; El1371,1949, and 17 (XXXVII),1981.
'08 See EI1999IINFI2IAdd.2.
'OY See ECOSOC resolution 1986135 with effect from 1988. Before this, the term was forthree years and originally for two years.
See ECOSOC resolution 1334 (XLIV), 1968, and decision 1978121, 1978.
211 See e.g. the Capotorti Study, above, footnote 152, and the Ruhashyankiko Study,
above, footnote 82. See also the Daes Study on the Individual's Duties to the Cornmunity, ElCN.4lSub.21432lRe~2,1983 and the Questiaux Study on States of Emergency, ElCN.4lSub.211982115, 1982. Note amongst other reports, the Sachar Studyon The Realisation of Economic, Social and Cultural Rights: The Right to Adequate
Housing, EICN.4ISub.2I1995112, 1995. For the list of studies and reports coinpleted

286

I N T E R N A T I O N A L LAW

established a number of subsidiary bodies. The Working Group on Communications functions within the framework of the resolution 1503 procedure noted in the previous sub-section, while the Working Groups onContemporary Forms of Slavery212and the Working Group on the Rights
of Indigenous ~ o p u l a t i o n sprepare~'~material within the areas of theirconcern. One should note in particular the adoption of the Draft Declaration on the Rights of Indigenous ~eoples.~'"he Sessional Working
Group on Detention, which has involved close collaboration with humanrights non-governmental organisations, has produced a series of reports
on particular rights.215The Sub-Commission has since 1987 produced anannual report listing all states that have proclaimed, extended or ended astate of emergency.216
The International Covenant on Economic, Social andCultural ~ i ~ h t s ~ l 'The International Covenant on Economic, Social and Cultural Rights was
adopted in 1966 and entered into force in 1976. Article 2 provides thateach state party undertakes to take steps to the maximum of its available
resources 'with a view to achieving progressively the full realisation of therights recognised in the present Covenant'. In other words, an evolving
programme is envisaged depending upon the goodwill and resources ofstates rather than an immediate binding legal obligation with regard to
the rights in question. The rights included range from self-determination(article l ) , the right to work (articles 6 and 7), the right to social security (article 9), adequate standard of living (article l l ) and education
at the 1995 session of the Sub-committee and those ongoing and suggested, see
EICN.41Sub.211995151, pp. 201-4.
Resolution 11 (XXVII), 1974, established the T4'orking Group on Slavery. Its name waschanged in 1988: see resolution 1988142. See K. Zoglin, 'United Nations Action Against
Slavery: A Critical Evaluation', 8 HRQ, 1986, p. 306. Note, for example, that a 35 Point
Programme ofAction for the Elimination ofthe Exploitation of Child Labour was adopted
in 1991: see resolution 1990131 and Commission resolution 1991154. The Worlullg Groupis also concerned with the sexual exploitation of children, child lahour and the questionof child soldiers.
'I3 See resolution 2 (XXXIV), 1981. See also ElCN.4lSuh.211982133, and above, p. 277.
? I 4 See resolution 1994145, ElCN.4lS~1b.211994156,
p. 103. See also above, p. 278.
'I5 See e.g. the S. Chernichenko and W. Treat Study on The Administration ofli~sticeand the
Human Rights ofDetairzees: The Right to a Fair Trial, ElCN.4lSub.211994124, 1994.
'I6 See e.g. ElCN.4lSub.211987119lRev.l;
ElCN.4lSub.211991128 and ElCN.4lSub.211995120
and Corr. 1.
'I7 See e.g. Craven, Covenant.

T H E PROTECTION OF H U M A N RIGHTS

287(article 13) to the right to take part in cultural life and enjoy the benefitsof scientific progress and its applications (article 15).
Under the Covenant itself, states parties were obliged to send peri~a Sessional Working Group was
odic reports to E C O S O C . ~In~ 1978,
set up, consisting of fifteen members elected by ECOSOC from amongst
states parties for three-year renewable terms. The Group met annuallyand reported to the Council. It was not a success, however, and in 1985
it was decided to establish a new committee of eighteen members, thistime composed of independent experts.219Accordingly in 1987 the new
Committee on Economic, Social and Cultural Rights commenced ope r a t i ~ n . ~But
" it is to be especially noted that unlike, for example, theRacial Discrimination Committee, the Human Rights Committee andthe Torture Committee, the Economic Committee is not autonomousand it is responsible not to the states parties but to a main organ of theUnited Nations. As will be seen by comparison with the other bodies, theEconomic Committee has at its disposal only relatively weak means of
implementation.
The implementation of this Covenant faces particular difficulties inview of the perceived vagueness of many of the principles contained
therein, the relative lack of legal texts and judicial decisions, and theambivalence of many states in dealing with economic, social and culturalrights. In addition, problems of obtaining relevant and precise information have loomed large, not least in the light of the fact that comparatively
few non-governmental organisations focus upon this area.221

'I9
"O

'"

See articles 16-22 ofthe Covenant, and U N Chronicle, July 1982, pp. 68-70. See generally
on implementation U. S. Ramcharan, 'Implementing the International Covenants on
Human Rights' in Ramcharan, Human Rights: Thirty Years After the UniversalDeclaration,
p. 159; P. Alston, 'Out of the Abyss: The Challenge Confronting the New UN Committee
on Economic, Social and Cultural Rights', 9 HRQ, 1987, p. 332; P. Alston and G. Quinn,'The Nature and Scope of States Parties' Obligations under the International Covenant on
Economic, Social and Cultural Rights', 9 HRQ, 1987, p. 156; P. Alston, 'The Committee
on Economic, Social and Cultural Rights' in Alston, United Akztions rzrld Human Rights, p.
473; B. Simma, 'The Implementation of the International Covenant on Economic, Social
and Cultural Rights' in The lrnplenlentntion ofEcononlic, Social nnd Cultural Rights (ed.
F. Matscher), Kehl am Rhein, 1991, p. 75, and S. Leckie, 'The Committee on Economic,
Social and Cultural Rights' in Alston and Crawford, Fnture, chapter 6.
See ECOSOC resolution 1985117.
See P. Alston and B. Simma, 'First Session of the UN Committee on Economic, Social
and Cultural Rights: 81 AJIL, 1987, p. 747, and 'Second Session of the UN Committee
on Economic, Social and Cultural Rights', 82 AJIL, 1988, p. 603.
See Alston, 'The Economic Rights Committee: p. 474.

288

I N T E R N A T I O N A L LAW

The Committee initially met annually in Geneva for three-week sessions, though it now meets twice per year. Its primary task lies in examining states' reports, drawing upon a list of questions prepared byits pre-sessional working group. The problem of overdue reports fromstates parties applies here as it does with regard to other human rights
implementation committees. The Economic Rights Committee adopted
a decision at its sixth session, whereby it established a procedure allowing
for the consideration ofthe situation ofparticular states where those states
had not produced reports for a long time, thus creating a rather valuablemeans of exerting pressure upon recalcitrant states parties.'22 Additional
information may also be requested from states parties where this is felt
necessary.223The Committee also -prepares'General Comments', the second of which on international technical assistance measures was adopted
at its fourth session in 1 9 9 0 . The~ ~ ~third general comment adopted in1991 is of particular interest and underlines that although the Covenant
itself appears promotional and aspirational, nevertheless certain obligations of immediate effect are imposed upon states parties. These include the non-discrimination provisions and the undertaking to take steps
which should be taken within a reasonably short time after the Covenant
has entered into force for the state concerned and which should be 'deliberate, concrete and targeted as clearly as possible towards meeting theobligations recognised in the Covenant'. The Committee also emphasisedthat international co-operation for development, and thus for the realisation of economic, social and cultural rights, was an obligation for allstates.225General Comment 4, adopted in 1991, discussed the right to adequate
while General Comment 5 adopted in 1994 dealt withthe rights of persons with disabilities.227General Comment 6 adopted
in 1995 concerned the economic, social and cultural rights of older persons.""she Committee also holds general discussions on particular rights

222

""ee
22'

'"

See e.g. ElC.1211994120,p. 18.
22' Ibid.,PP. 16-18.
HRIIGENIRev.1, p. 45.
''jIbid.,p. 48.
""bid., p. 53.
E11995122, 17. 99. On disabilities and human rights, see also the final report of Leandro
Despouy, Special Rapporteur o n Human Rights and Disability, ofthe Sub-Commission o nPrevention of Discrimination and Protection of Minorities, ElCN.4lSub.21199113 1; General Assembly resolution 3447 (XXX) of 9 December 1975 adopting the Declaration ofthe
Rights of Disabled Persons, and General Assembly resolution 37152 of 3 December 1982
adopting the I'orld Prograinme of Action concerning Disabled Persoils, A137135 llAdd. 1
and Corr. 1, chapter VIII.
ElC.1211995116, 1995.

T H E PROTECTION OF H U M A N RIGHTS?-a9

in the form of a 'day of general discussion'.229It cannot hear individual
petitions, nor has it an inter-state complaints competence.230
Expert bodies established under particular treatieZ31
A number of expert committees have been established under particulartreaties. They are not subsidiary organs of the UN, but autonomous,
although in practice they are closely connected with it, being serviced,
for example, by the UN Secretariat through the UN Centre for Human
Rights in ~eneva.~~"hesecommittees are termed 'UN Treaty Organs:

The Committee on the Elimination of Racial ~ i s c r i m i n a t i o n ~ ~ ~Under Part I1 of the Convention on the Elimination of All Forms of Racial
Discrimination, 1965, a Committee of eighteen experts was established
229 At the ninth session, for example, in the autumn of 1993, the Committee discussed theright to health, E11994123, p, 56, while at the tenth session in May 1994 the role of social
safety-nets as a means of protecting economic, social and cultural rights was discussed:
see E11995122, p. 70. See also generally C. Dommen, 'Building from a Solid Basis: The
Fourth Session of the Committee on Economic, Social and Cultural Rights', 8 NQHR,
1990, p. 199, and C. Doinmen and M. C. Craven, 'Making Way for Substance: The Fifth
Session of the Committee on Economic, Social and Cultural Rights', 9 NQHR, 1991,
p. 93.
'?'
Note, however, that at its seventh session in 1992, the Committee formally proposedthat an optional protocol providing for some kind of petition procedure be drafted andadopted: seeEi1993122,pp. 87ff., andcraven, Covenant,pp. 98 ff. See alsoEiC.1211994112
and EIC.1211995lSR.50,December 1995.
231 See e.g. Alston and Crawford, Future, and S. Lewis-Anthony, 'Treaty-Based Proceduresfor Making Human Rights Complaints Within the UN System' in Hannum, Guide toInternational Hwnan Rights Practice, p. 41. See also M. OIFlaherty, Hunran Rights arid the
UAT: Practice Before the Treaty Bodies, 2nd edn, The Hague, 2002.
This link with the Secretariat has been termed ambiguous, particularly in the light ofthe difficulties in performing the two functions carried out by the Secretariat (Charterbased political activities and expert activities): see e.g. T. Opsahl, 'The Human Rights
Committee' in Alston, Uriited Nations and Hunlan Rights, pp. 367, 388.
See e.g. M. Banton, 'Decision-Taking in the Committee on the Elimination of Racial
Discrimination' in Alston and Crawford, Future, p. 55; K . 1. Partsch, 'The Committee on
the Elimination of Racial Discrimination' in Alston, United Nations and Huruan Rights,
p. 339; T. Meron, Human Rights Law-Making in the United Nations, Oxford, 1986,
chapter 1; K. Das, 'The International Convention on the Elimination ofAll Forms of Racial
Discrimination' in The Iriternational Dilnerzsion of Hunzan Rights (eds. K . Vasak and P.
Alston), Paris, 1982, p. 307; Lerner, UN Convention and 'Curbing Racial Discrimination Fifteen Years Cerd: 13 Israel Yearbook or1 Hurnan Rights, 1983, p. 170; M. R. Burrowes,'Implementing the UN Racial Convention - Some Procedural Aspects: 7 Australian YIL,
p. 236, and T. Buergeilthal, 'Implementing the UN Racial Coilvention', 12 Texas International Law Journal, 1977, p. 187.

"'

"'

290

I N T E R N A T I O N A L LAW

consisting of persons serving in their personal capacity and elected by thestates parties to theStates parties undertook to submit
reports every two years regarding measures adopted to give effect to theprovisions ofthe Convention to the Committee, which itselfwould reportannually through the UN Secretary-General to the General Assembly.
The Committee may make suggestions and general recommendations
based on the examination of the reports and information received fromthe states parties, which are reported to the General Assembly together
with any comments from states parties."' The Committee is also able
to seek further information from states parties. For example, in 1993,
the Committee, concerned at events in the former Yugoslavia, sought
additional information on the implementation of the Convention as amatter ofThis information was provided during the autumn~ ' Committee has also established aof 1994 and the spring of 1 9 9 5 . ~ Theprocedure to deal with states whose reports are most overdue. Under thisprocedure, the Committee proceeds to examine the situation in the stateparty concerned on the basis of the last report submitted.238At its fortyninth session, the Committee further decided that states parties whose
initial reports were excessively overdue by five years or more would also
be scheduled for a review of implementation of the provisions of theConvention. In the absence of an initial report, the Committee considers
all information submitted by the state party to other organs of the United
Nations or, in the absence of such material, reports and information
prepared by organs of the United Nations. In practice the Committee also
considers relevant information from other sources, including- from nongovernmental organisations, whether it is an initial or a periodic reportthat is seriously o v e r d ~ e . ~The
" Committee has also established early
warning measures and urgent procedures.240
Under article 11, one state party may bring a complaint against another state party and the Committee will seek to resolve the complaint.
Should the matter not be so settled, either party may refer it back to
the Committee and by article 12 an ad hoc Conciliation Commission""ulesof Procedure have heen adopted, see CERDICI35IRev. 3 (1986), and are revised
from time to time: see, for example, A148118, p. 137.
Articles 8 and 9 of the Convention.
236 A148118, paras. 496-506.
23' See e.g. CERDlCl248lAdd.l (Federal Republic ofY~~goslavia);
CERDICI249IAdd.l (Croatia) and CERDlCl247lAdd. 1 (Bosnia and Herzegovina).
'j8 See e.g. A148118, p. 20.
239 See e.g. A157118, p. 99.
240 See, for the list of states subject to date to such procedures, ibid., p. 14.

'"

THE PROTECTION OF HUMAN RIGHTS

291

may be established, which will report back to the Committee with any
recommendation thought proper for the amicable solution of the disp~te.~~l
In addition to hearing states' reports and inter-state complaints, theCommittee may also hear individual petitions under the article 14 procedure. This, however, is subject to the state complained of having
made a declaration recognising the competence of the Committee toreceive and consider such communications. If such a declaration has
not been notified by a state, therefore, the Committee has no authority to hear a petition against the state.242Under this procedure, consideration of communications is confidential and the Committee may
be assisted by a five-person working group making recommendations
to the full Committee. The Committee began hearing individual communications in 1984 and a number of important cases have now been
completed.243
The Committee regularly meets twice a year and has interpreted articles of the Convention, discussed reports submitted to it, adopted decisionsX4 and general r e ~ o r n m e n d a t i o n s obtained,~~~
further informationfrom states parties and co-operated closely with the International Labour
Organisation and UNESCO. Many states have enacted legislation as aconsequence of the work of the Committee and its record of impartiality
is very good.24GThe Committee also receives copies of petitions and reports sent to UN bodies dealing with trust and non-self-governing territories in the general area of Convention matters and may make comments
upon them.247The general article 9 reporting system appears to work
well, with large numbers of reports submitted and examined, but some

Article 13.
provisioll entered into force on 31 December 1982 upon the tenth declaration.
243 See e.g. the Report of the Committee for its forty-eighth session, A148118, 1994, pp. 105
and 130, and for the sixtieth and sixty-first sessions, Al57118, p. 128.
244 For example, the decision adopted on 19 March 1993 requesting the governments of theFederal Republic of I(ugos1avia (Serbia and Montenegro) and Croatia to subillit further
information concerning implementation of the Convention: see A148118, p. 112.
See, for example, General Recommendation XI1 ( 4 2 ) encouraging successor states todeclare that 'they continue to be bound' by the obligations of the Convention if
predecessor states were parties to it; General Recommendation XIV ( 4 2 ) concerning
non-discrimination, A148118, pp. 113 ff, and General Recommendation XXIX concerning discrimiilatioil based upon descent, Al57118, p. 11 1.
246 See e.g. Lerner, UN Converztion.
247 Article 15. See, for example, A148118, p. 107.
241

"""he

'"

292

I N T E R N A T I O N A L LAW

states have proved tardy in fulfilling their obligations.248The Committee has published guidelines for states parties as to the structure of theirreport^."^
The Committee, in order to speed up consideration of states' reports,
has instituted the practice of appointing countryrapporteurs, whose function it is to prepare analyses of reports of states parties.250The Committee
has also called for additional technical assistance to be provided by the UN
to help in the reporting process, while it has expressed serious concernthat financial difficulties are beginning to affect its f ~ n c t i o n i n ~ . ~ "The Human Rights
The International Covenant on Civil and Political Rights was adopted~ article 2, all states parties
in 1966 and entered into force in 1 9 7 6 . ~ 'By
undertake to respect and to ensure to all individuals within their territoryand subject to their jurisdiction the rights recognised in the Covenant.
These rights are clearly intended as binding obligations. They include theright of peoples to self-determination (article l),the right to life (article 6),
prohibitions on torture and slavery (articles 7 and 8), the right to liberty
and security of the person (article 9), due process (article 14), freedomof thought, conscience and religion (article IS), freedom of association(article 2 2 ) and the rights of persons belonging to minorities to enjoy
their own culture (article 27).

'" See e.g. A138118, pp. 14-24. Note, for example, that by late 1983 fifteen reminders had

"'
"O

"'

'"

'"

been sent to S~crazilandrequesting it to submit its fourth, fifth, sixth and seventh overdue
periodic reports, ibid., p. 21. See also A144118, pp. 10-16.
See CERDICI~OIR~Y.
1 , 6 December 1983.
See e.g. A144118, 1990, p. 7 and A148118, 1994, p. 149.
Al44118, p. 91.
See e.g. Joseph et al., blternational Covenant; Nowak, UN Covenant; McGoldrick, Htwlan
Rights Committee; Opsahl, 'Human Rights Committee: p. 367; D. Fischer, 'Reporting
under the Convention on Civil and Political Rights: The First Five Years of the Human
Rights Committee', 76 AJIL, 1982, p. 142; Ramcharan, 'Implementing the International
Covenants; E. Schwelb, 'The International Measures of Implementation of the International Covenant on Civil and Political Rights and of the Optional Protocol', 12 Texas
International Law Review, 1977, p. 141; M. Nowak, 'The Effectiveness of the International
Covenant on Civil and Political Rights - Stock-taking after the First Eleven Sessions of
the UN Human Rights Committee: 2 HRLJ, 1981, p. 168 and 5 HRLI, 1984, p. 199. See
also M. Bossuyt, Guide to the Travaux Prkparatoires of the hiterriational Covenant on Civil
and Political Rights, The Hague, 1987; F. Jhabvala, 'The Practice of the Covenant's Human
Rights Committee, 1976-82: Re~~iewof State Party Reports: 6 HRQ, 1984, p. 81, and P. R.
Ghandhi, 'The Human Rights Committee and the Right of Individual Communication:
57 BYIL, 1986, p. 201.
See Rehman, International Human Rights Law, p. 83.

THE PROTECTION OF HUMAN RIGHTS293

A Human Rights Committee was established under Part IV of theCovenant. It consists of eighteen independent and expert members,
elected by the states parties to the Covenant for four-year terms, withconsideration given to the need for equitable geographical distribution
and representation of the different forms of civilisation and of the principal legal
The Committee meets three times a year (in Geneva
and New York) and operates by way of consensus.255The Covenant isprimarily implemented by means of a reporting system, whereby states
parties provide information on the measures adopted to give effect to therights recognised in the Covenant. Initial reports are made within one
year of the entry into force of the Covenant for the state in question andgeneral guidelines have been
The Committee has decided that
subsequent reports would be required every five years,257and the first of
the second periodic reports became due in 1983. The reports are discussed
by the Committee with representatives of the state concerned (following
upon the precedent established by the Committee on the Elimination of~ ' ~ practice used to be that Committee memRacial ~ i s c r i m i n a t i o n ) . The
bers would informally receive information from sources other than thereporting state provided the source is not publicly identified. This enabled
the Committee to be more effective than would otherwise have been thecase.259However, no doubt due to the ending of Soviet control in Eastern Europe and the demise of the Soviet Union, there appears to be no
problem now about acknowledging publicly the receipt of informationfrom named non-governmental organ is at ion^.^^^ The Committee may
also seek additional information from the state concerned. For example, in'54

See articles 28-32 of the Covenant.

"' See e.g. Nowak, 'Effectip-eness: p. 169, 1981 3 HRLJ, 1982, p. 209 and 1984, p. 202. See
also A136140, annex VII, Introduction; CCPRlCl2llRev.1 and A144140, p. 173.
See article 40 and CCPRICI5. Supplementary reports may be requested: see Rule70(2) of the provisional rules of procedure, C C P R I C I ~ I R ~ VSee
. ~ . now the Rulesof Procedure, 2001, CCPRICI3IRev.6 and the revised consolidated guidelines 2001,
CCPRICI~~IGUIIR~V.~.
See CCPRICI18; CCPRICI19 and CCPRICI19IRev.l. See also CCPRICI20 regarding
guidelines. Several states have been lax about producing reports, e.g. Zaire and theDominican Republic, while the initial report of Guinea was so short as to be held by
the Committee as not providing sufficient information: see Nowak, 'Effectiveness', 1984,
p. 200.
See Buergenthal, 'Implementing', pp. 199-201, and Fischer, 'Reporting', p. 145.
25' Fischer, 'Reporting: pp. 146-7.
260 Such doc~trnentsinay now be officially distributed, rather than being informally madeavailable to Committee members individually: see McGoldrick, Human Rights Committee,
p. liii.
''15

"'

294

I N T E R N A T I O N A L LAW

October 1992, the Committee adopted a decision requesting the governments of the Federal Republic of Yugoslavia (Serbia and Montenegro),
Croatia and Bosnia-Herzegovina to submit a short report concerning
measures to prevent inter uliu ethnic cleansing and arbitrary killings.261
Such reports were forthcoming and were discussed with the state representatives concerned and comments adopted. The Committee thereafter
adopted an amendment to its rules of procedure permitting it to call forreports at anytime deemed appropriate.262The Committee has also notedthat the peoples within a territory of a former state party to the Covenantremain entitled to the guarantees of the
Where states parties
have failed to report over several reporting cycles, or request a postponement of their scheduled appearance
before the Committee at short notice,- the Committee may continue to examine the situation in the particularstate on the basis of material available to it.264
Under article 40(4), the Committee is empowered to make such 'generalcomments as it may deem appropriate'. After some discussion, a consensus was adopted in 1980, which permitted such comments provided thatthey promoted co-operation between states in the implementation of theCovenant, summarised the experience of the Committee in examining
states' reports and drew the attention of states parties to matters relating
to the improvement of the reporting procedure and the implementationof the Covenant. The aim of the Committee was to engage in a constructive dialogue with each reporting state, and the comments would ben o n - c ~ u n t r ~ - s ~ e c i fHowever,i c . ~ ~ ~ in 1992, the Committee decided thatat the end of the consideration of each state party's report, specific comments would be adopted referring to the country in question and suchcomments would express both the satisfaction and the concerns of theCommittee as appropriate.266These specific comments are in a common
format and refer to 'positive aspects' of the report and 'principal subjects
for concern', as well as 'suggestions and recommendation^'.^^'
16' CCPR/C/SR/1178/Add.l.

New Rule 66(2), see CCPRICISRI1205IAdd.l. See also S. Joseph, 'New Procedures Concerning the Human Rights Committee's Examination of State Reports: 13 NQHR, 1995,
p. 5.
16' See, with regard to former Yugoslavia, CCPRICISR.1178IAdd.1, pp. 2-3 and
CCPRICI79IAdd. 14-16. See, with regard to the successor states of the USSR,
CCPRlCl79lAdd.38 (Azerbaijan). See also I. Boerefijn, 'Towards a Strong System ofSupervision: 17 HRQ, 1995, p. 766.
264 See e.g. A156140,~~ol.
I, p. 25.
26' CCPRICI18.
See A147140, p. 4.
'67 See, for example, the comments conceriling Colombia in September 1992,
CCPRICI79IAdd.2; Guinea in April 1993, CCPRlCl79lAdd.20; Norway in November
262'"

THE PROTECTION OF HUMAN RIGHTS

295

The Committee has also adopted a variety of General
These comments are generally non-controversial. One interesting comment on article 6 (the right to life), however, emphasised the Committee'sview that 'the designing, testing, manufacture, possession and development of nuclear weapons are among the greatest threats to the right tolife', and that the 'production, testing, possession and deployment anduse of nuclear weapons should be prohibited and recognised as crimes
against humanity'.269
In April 1989, the Committee adopted a General Comment on therights of the child, as the process of adopting the Convention on the
Rights ofthe Child neared its climax. It noted the importance of economic,
social and cultural measures, such as the need to reduce infant mortality
and prevent exploitation. Freedom of expression was referred to, as was
the requirement that children be protected against discrimination on
grounds such as race, sex, religion, national or social origin, property orbirth. Responsibility for guaranteeing the necessary protection lies, it wasstressed, with the family, society and the state, although it is primarily
incumbent upon the family. Special attention needed to be paid to theright of every child to acquire a n a t i ~ n a l i t y . ~ ' ~In November 1989, an important General Comment was adopted on
non-discrimination. Discrimination was to be understood to imply forthe purposes of the Covenant:any distinction, exclusion, restriction or preference which is based o n any
ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has
1993, CCPRlCl79lAdd.27; Morocco in November 1994, CCPRlCl79lAdd.44; theRussian Federation in July 1995, CCPRiCl79lAdd.54; Estonia in November 1995,
CCPRICI79IAdd.59 and the United Kingdom in 1uly 1995, CCPRlCl79lAdd.55 and,relating to Hong Kong, in November 1995, CCPRlCl79lAdd.57. Note that in September
1995, Mexico responded to the Committee's Concluding Comments upon its report byissuing Observations, CCPRICI108.
See e.g. T. Opsahl, 'The General Comments ofthe Human Rights Committee' in Festschrl'ft
fur Karl JosqfPartsch zum 75, Berlin, 1989, p. 273.
26y C C ~ ~ l C l 2 l l ~ d 14
d . 4November,
1984. Note that the International Court of Justice gavean Advisory Opinion on 8 July 1996 at the request of the General Assembly of the UN
in which it was noted thatconcerning the Legality of the Threat or Use ofhTtlclear Weapor~s,
the right not to be arbitrarily deprived of one's life applied also in hostilities. Il%ether
a particular loss of life was arbitrary within the terms of article 6 would depend on thesituation and would be decided by reference to the law applicable in armed conflict andnot deduced from the terms of the Covenant itself, ICJ Reports, 1996, para. 25; 35 ILM,
1996, pp. 809, 820.
Al44140, pp. 173-5.

"'

296

I N T E R N A T I O N A L LAW

the purpose o r effect of nullifying o r impairing the recognition, enjoymento r exercise by all persons, o n an equal footing, of all rights a n d f r e e d ~ r n s . ' ~ 'Identical treatment in every instance was not, however, demanded. The
death sentence could not, under article 6(5) of the Covenant, be imposedon persons under the age of eighteen or upon pregnant women. It was also
noted that the principle of equality sometimes requires states parties totake affirmative action in order to diminish or eliminate conditions whichcause or help to perpetuate discrimination prohibited by the Covenant.
In addition, it was pointed out that not every differentiation constituted
discrimination, if the criteria for such differentiation were reasonable andobjective and if the aim was to achieve a purpose which was legitimate
under theImportant General Comments on ~ i n o r i t i e s ~ and" ~eservations~'~
were adopted in 1994. In 1997, the Committee notedin General Comment
26 that the rights in the Covenant belonged to the people living in the
territory of the state party concerned and that international law did not
permit a state which has ratified or acceded or succeeded to the Covenant
to denounce it or withdraw from it,275while in General Comment 28
the Committee pointed out that the rights which persons belonging tominorities enjoyed under article 27 of the Covenant in respect of theirlanguage, culture and religion did not authorise any state, group or person
to violate the right to the equal enjoyment by women of any Covenant
rights, including the right to equal protection of the law.276
Under article 41 of the Covenant, states parties may recognise thecompetence of the Committee to hear inter-state complaints. Boththe complainant and the object state must have made such declarations.
The Committee will seek to resolve the issue and, if it is not successful, it
may under article 42 appoint, with the consent of the parties, an ad hoc
Conciliation omm mission.^^'The powers of the Human Rights Committee were extended by
Optional Protocol I to the Civil and Political Rights Covenant with regard*" CCPR1C1211Rev.11Add.1,p. 3.

272

Ibid.,p. 4. See also above, p. 266.

"' HRIIGENIlIRev.1, 1995. See further above, p. 273*'"CPR/C/~
llRev.llAdd.6. See further below, p. 82 1.
'" A153140, annex VII.

CCPRICI2lIRev.llAdd.10, 2000. General Commeilt 29 adopted ill 2001 dealt with thequestion of non-derogable provisions, see CCPRICI2 llRev. llAdd. 11.
"'The inter-state procedure has not been used to date.
276

THE PROTECTION OF HUMAN RIGHTS

297

to ratifying states to include the competence to receive and consider individual communications alleging violations of the Covenant by a state. ~ ~individual~
must have exhausted all available
party to the ~ r o t o c o lThedomestic remedies (unless unreasonably prolonged) and the same mattermust not be in the process of examination under another international
procedure.27yThe procedure under the Optional Protocol is divided into
several stages. The gathering ofbasic information is done by the SecretaryGeneral and laid before the Working Group on Communications of theCommittee, which recommends whether, for example, further information is required from the applicant or the relevant state party and whether
the communication should be declared inadmissible. The procedure before the Committee itself is divided into an admissibility and a merits
stage. Interim decisions may be made by the Committee and ultimately a'final view' communicated to the par tie^.^"An increasing workload, however, began to cause difficulties as thenumber ofparties to the Optional Protocol increased. By September 1994,
587 communications concerning 44 states parties had been placed before
the Committee, of which 193 had been concluded by final views having
In~ order'
to deal with the
been issued and 201 declared i n a d m i s ~ i b l e . ~growth in applications, the Committee decided at its thirty-fifth session
to appoint a Special Rapporteur to process new communications as they
were received (i.e. between sessions of the Committee), and this included
requesting the state or individual concerned to provide additional written
information or observations relevant to the question of the admissibility

278 Signed in 1966 and in force as from 23 March 1976. See e.g. H. Steiner, 'Individual Clainls

in a World of Massive \'iolations: \\%at Role for the Human Rights Committee?' in Alston
and Crawford, Future, p. 15; P. R. Ghandi, The Hurnan Rights Cornrr~itteeand the Rightof Individual Comtrlunication: Law and Practice, Aldershot, 1998; A. de Zayas, H. Moller
and T. Opsahl, 'Application of the International Covenant on Civil and Political Rights
under the Optional Protocol by the Human Rights Committee', 28 German YIL, 1985,
12. 9, and Selected Decisions of the Hurnan Rights Conlrnittee under the Optional Protocol,
New York, vol. I, 1985 and vol. 11, 1990. TWOstates (ramaica and Trinidad and Tobago)
have denounced the Protocol.
27y ~ r t i c l e
5, Optional Protocol.
See Nowak, 'Effectiveness', 1980,pp.153 ff., and 1981 Report o f H u n a n Rights Committee,
Al36140, pp. 85-91.
Al49140, vol. I, p. 63. By mid-2001, 1,004 applications had been communicated: see
Al56140, vol. I, p. 105. Of these, 368 were the subject of final Views, 300 were declared
inadmissible, 142 had been withdrawn or discontinued and 194 were still in progress,

ibid.

298

I N T E R N A T I O N A L LAWof the c o m r n u n i ~ a t i o n The. ~ ~ ~Committee has also authorised its fivemember Working Group on Communications to adopt a decision declaring a communication admissible, providing there is ~nanimity."~The
Committee may also adopt interim measures of protection under Rule 86of its Rules of Procedure. This has been used primarily in connection withcases submitted by or on behalf of persons sentenced to death and awaiting exe~ution.~~"ucha request was made, for example, to Trinidad andTobago in the Ashby case pending examination of the communication,
but to no avail. After the individual was executed, the Committee adopted
a decision expressing its indignation at the failure of the state party tocomply with the request for interim measures and deciding to continue
consideration of the case.2s5Where the state concerned has disregarded
the Committee's decisions under rule 86, the Committee has found thatthe state party has violated its obligations under the Optional ~ r o t o c o l . ~ ~ ~The Committee, however, is not a court with the power of binding decision on the merits of cases. Indeed, in instances of non-compliance with
its final views, the Optional Protocol does not provide for an enforcement
mechanism, nor indeed for sanctions, although follow-up techniques arebeing developed in order to address such problems.287
A variety of interesting decisions have so far been rendered. The firstgroup of cases concerned complaints against Uruguay, in which theCommittee found violations by that state of rights recognised in the
C~venant.'~'In the Lovelace case,289the Committee found Canada inbreach of article 27 of the Covenant protecting the rights of minorities
since its law provided that an Indian woman, whose marriage to a nonIndian had broken down, was not permitted to return to her home on an"'A144140, pp. 139-40. See also rule 91 of the amended Rules of Procedure, ibid., p. 180.
la' Ibid., p. 140.

284 See, in particular, Canepa v. Canada, Al52140, vol. 11, annex VI, sect. K.
' 8 ~ 1 4 9 1 4 0pp.
, 70-1.
'86 See Piandiong et al. v. the Philippines, 4154140, para. 420(b).
18' Note that in October 1990, the Committee appointed a Special Rapporteur to follow
up cases, CCPRlClSR.1002, 13. 8. See rule 95 of the Rules of Procedure. In 1994, theCommittee decided that every form of publicity would be given to follow-up activities,
including separate sections in annual reports, the issuing of annual press communiques
and the institution of such practices in a new rule of procedure (rule 99) emphasisingthat follow-up activities were not confidential, Al49140, pp. 84-6. See also Al56140, vol.
I, p. 131.
'88 These cases are reported in 1 HRLJ, 1980, pp. 209 ff. See, for other cases, 2 HRLJ, 1981,
pp. 130 ff.; ibid., pp. 340 ff.; 3 HRLJ, 1982, p. 188; 4 HRLJ, 1983, pp. 185 ff. and 5 HRLJ,
1984, pp. 191 ff. See also Annual Reports of the Human Rights Committee, 1981 to date.
28"981 Report of the Human Rights Committee, Al36140, p. 166.

THE PROTECTION OF HUMAN RIGHTS

299

Indian reservation. In the Mauritian Women case2'' a breach of Covenant
rights was upheld where the foreign husbands of Mauritian women were
liable to deportation whereas the foreign wives of Mauritian men would
not have been.
The Committee has also held that the Covenant's obligations cover
the decisions of diplomatic authorities of a state party regarding citizens living abroad.291In the Robinson case,292the Committee considered
whether a state was under an obligation itself to make provision for effective representation by counsel in a case concerning a capital offence,in circumstances where the counsel appointed by the author of the communication declines to appear. The Committee emphasised that it wasaxiomatic that legal assistance be available in capital cases and decided
that the absence of counsel constituted unfair trial.
The Committee has dealt with the death penalty issue in several cases293
and has noted, for example, that such a sentence may only be imposed inaccordance with due process right^.^" The Committee has also taken theview that where the extradition of a person facing the death penalty may
expose the person to violation of due process rights in the receiving state,
the extraditing state may be in violation of the oven ant.^" The Committee has also noted that execution by gas asphyxiation would violate
the prohibition in article 7 of cruel and inhuman treatment.296The issue~ ~ ' whether the procedural safeguards in arfaced in the ~ u o l a n n e c a s e wasticle 9(4) of the Covenant on Civil and Political Rights, whereby a person
deprived of his liberty is to be allowed recourse to the courts, applied tomilitary disciplinary detention. The Committee was very clear that it did.
It is already apparent that the Committee has proved a success and is
performing a very important role in the field of human rights protect i ~ n . ~ ~ ~"O

Ibid., p. 134.

"' See e.g. the Waksrnan case, 1 HRLJ, 1980, p. 220 and the Lichtensztejn case, 5 HRLJ, 1984,
292

'"
'"
'"
2"

p. 207.
Al44140, p. 241 (1989).
See e.g. Tllornpson v. St Vincent and the Grenadines, A156140, vol. 11, annex X, sect. H,
para. 8.2.
See e.g. the Berry, Hamilton, Grant, Currie and Charnpagr~iecases against Jamaica,
Al49140, vol. 11, pp. 20, 37, 50, 73 and 136.
See the Ng case, concerning extradition from Canada to the US. The Committee foundthat there was no evidence of such a risk, Al49140, vol. 11, p. 189.
Ibid.
Ibid., p. 249.
The second optional protocol aimed at the abolition of the death penalty was adopted
in 1990, while the desirability of a third optional protocol to the Covenant, concerning

'"

300

I N T E R N A T I O N A L LAW

The Committee on the Elimination of Discrimination
Against Women
The Commission on the Status of Women was established in 1946 as
one of the functional commissions of ECOSOC and has played a roleboth in standard-setting and in the elaboration of further relevant ins t r u m e n t ~ The. ~ ~ Committee~
on the Elimination of All Forms of Discrimination Against Women was established under article 22 of the 1979
Convention on the Elimination of all Forms of Discrimination Against
This Convention is implemented by means of states' reports.
It is composed of twenty-three experts serving in individual capacities forfour-year terms. It held its first regular session in October 1982 and atits second session examined the reports of seven states parties regarding
measures taken to comply with the terms of the Convention. It reports
annually to the UN General Assembly through E C O S O C . The~ ~ ~Committee has provided guidelines to states parties on reporting, whereby initialreports are intended to be detailed and comprehensive with subsequent
reports being of an updating nature.302Since 1990, subsequent reports are
the right to a fair trial and a remedy, has been considered by the Comnlission on Human
Rights: see EICN.4ISub.2.1994124,Sub-Con~missionresolutio1l1994135and Co~llmissio~lresolution 19941107.
' 9 9 See ECOSOC resolutions 115 (1946), 2111 (1946) and48 (IV) (1947).See also L. Reanda,'The Conlmission on the Status of Women' in Alston, United Nations and Human Rights,
p. 265. The mandate ofthe Commission was revised by ECOSOC resolutions 1987122 and199616. There is also an individual petition procedure by which complaints are considered
by a \.\'orking Group on Communications which then reports to the Commission. The
Commission in turn reports to ECOSOC.
'0° This came into force in 1981. See R. Jacobson, 'The Committee on the Elimination ofDiscrimination against Women' in Alston, L'riited Nations and Hunian Rights, p. 444; A.
Bprnes, 'The "Other" Human Rights Body: The Worlz of the Committee on the Elimination of Discrimination Against TITomen',14 Yale Journal of Iriternational Law, 1989, p. 1;
M. Galey, 'International Enforcement of Women's Rights', 6 HRQ, 1984, p. 463, and M.
Wadstein, 'Implementation of the UN Convention on the Elimination of All Forms ofDiscrimination against MTomen', 6 NQHR, 1988, p. 5. See also R. Cook, 'Women's International Human Rights La~v:15 HRQ, 1993, p. 230; Human Rights of Women (ed. R. Cook),
Philadelphia, 1994; M. Freeman and A. Fraser, 'Tl'omen's Human Rights' in Herlin andHargrove, H ~ r m a nRights: An Agenda for the Next Century, p. 103; Rehman, International
Hurilan Rights Law, chapter 13; Steiner and Alston, Interr~ationalHurilan Rights, pp. 158 ff.
and pp. 404 ff.; J. Morsink, 'W'omen's Rights in the Universal Declaration: 13 HRQ, 1991,
p. 229; H. Charlesworth and C. Chinkin, The Boundaries of International Law: A Feminist Analysis, Manchester, 2000, and M. Bustelo, 'The Committee on the Elimination ofDiscri~ni~lation
against Women at the Crossroads' in Alston and Crawford, Future, p. 79.
301 See articles 17-2 1 of the Convention and the first Report of the Committee, A138145, and
UN Chronicle, November 1983, pp. 65-86.
302 See CEDAWICI7Rev.3 and with regard to reports submitted from 1 January 2003, see

http:ll~~vc~~.~~i~.orgiwomenwatchlda~~~lceda~~~lguidelines.PDF.

THE PROTECTION OF HUMAN RIGHTS

301

examined first by a pre-sessional working group. Following discussion ofa report, the Committee provides concluding comments. The Committee,
in addition to hearing states' reports, may make suggestions and generalrecommendations, which are included in the report."' Since 1997 theprocess of adopting a general recommendation is preceded by an open
dialogue between the Committee, non-governmental organisations andothers regarding the topic ofthe general recommendation and a discussionof a draft prepared by a Committee member. General Recommendation
No. 5 called upon states parties to make more use of 'temporary special
measures such as positive action, preferential treatment or quota systems
to advance women's integration into education, the economy, politics
and employment', while General Recommendation No. 8 provided thatstates parties should take further measures to ensure to women, on equalterms with men and without discrimination, the opportunity to represent
their government at the international
General Recommendation
No. 12 called upon states parties to include in their reports information
on measures taken to deal with violence against
women, while General
Recommendation No. 14 called for measures to be taken to eradicate
the practice of female circumcision. General Recommendation No. 19(1992) dealt at some length with the problem of violence against womenin general and specific terms, and General Recommendation No. 21 isconcerned with equality in marriage and family relations.305In 1999, theCommittee adopted a General Recommendation No. 24 on women andhealth.
The Committee, however, met only for one session of two weeks ayear, which was clearly inadequate. his was increased to two sessions ayear from 1 9 9 7 . ~ An
' ~ Optional Protocol adopted in 1999 and in force as
from December 2000 allows for the right of individual petition provided anumber of conditions are met, including the requirement for the exhaustion of domestic remedies. In addition, the Protocol creates an inquiry.
procedure enabling the Committee to initiate inquiries into situationsof grave or systematic violations of women's rights where it has received
reliable information of grave or systematic violations by a state party ofrights established in the onv vent ion.'" In recent years, the question of"' Article 21.

jo4 A143138 (1988).
HRIIGENI~IR~T
1994,~ . ~ ,pp. 72 ff.
' 0 6 Although the Committee met exceptionally for three sessions during 2002 to deal wit11
backlog reports.
'07 See, for example, for an earlier view, R, Cook, 'The Elimination of Sexual Apartheid:
Prospects for the Fourth World Conference on Women: ASIL Issue Papers on M'orld
Conferences, M'ashington, 1995, pp. 48 ff.

305

302

I N T E R N A T I O N A L LAW

women's rights has moved further up the international agenda. The
Vienna Declaration and Programme of Action adopted in 1993 emphasised that the human rights of women should be brought into the mainstream of UN system-wide activity and that women's rights should be
regularly and systematically addressed throughout the UN bodies andmechanisms."' In the light of this, the fifth meeting of Chairpersons of
Human Rights Treaty Bodies in 1994 agreed that the enjoyment of thehuman rights of women by each treaty body within the competence of its
mandate should be closely monitored. Each of the treaty bodies took steps
to examine its guidelines with this in mind.309It should also be noted, forexample, that the Special Rapporteur on Torture was called upon by theCommission on Human Rights in 1994 to examine questions concerning
torture directed disproportionately or primarily against women,"1° In addition, the General Assembly adopted a Declaration on the Elimination ofViolence Against Women in February 1 9 9 4 , ~ and~ ' a Special Rapporteur
on Violence against Women, its Causes and Consequences was appointed' ~ International Labour Organisation established the proin 1 9 9 4 . ~ Themotion of equality of opportunity and treatment of men and women in
employment as a priorityitem in its programme and budget for 199415.~'~

See Part 11, Section 3, 32 ILM, 1993, p. 1678. See also the Beijing Conference 1995,
Cook, 'Elimination of Sexual Apartheid'; the Beijing plus 5 process, see General Assembly
resolution 55171. In 2000, the General Assembly adopted resolution S-2313 containing a
Political Declaration and a statement on further actions and initiatives to implement the
Beijing Declaration and Platform for Action.
jo9 See HRIlMCl199512. See also the Report of the Expert Group Meeting on the Development of Guidelines for the Integration of Gender Perspectives into Hunian Rights
Activities and Programmes, ElCN.4119961105, 1995. This called inter alia for the use ofgender-inclusive language in human rights instrunlents and standards, the identification,collection and use of gender-disaggregated data, gender-sensitive interpretation of humanrights mechanisms and education and the promotion of a system-wide co-ordination andcollaboration on the human rights of women within the UN.
See resolution 1994137. See also the Report of the Special Rapporteur of January 1995,
ElCN.411995134, p. 8.
'I1 Resolution 481104, see 33 ILM, 1994, p. 1049. Note also the adoption of the InterAmerican Convention on the Prevention, Punishment and Eradication of Violence
Against Women in June 1994, ibid., p. 1534 and the March 2002 roint Declaration by
the Special Rapporteur on women's rights of the Inter-American Commission on Human Rights, the Special Rapporteur on Violence Against Women, its Causes and its
Consequences of the UN Commission on Human Rights, and the Special Rapporteuron the Rights of IITomenin Africa of the African Commission on Human and Peoples'
Rights which called for the elimination of violence and discrimination against women:
see http:llww~~.cidh.org/declaration.women.htm.
"2 See ElCN.412003175,
31~lC~.41Sub.21199415,
p. 6.
'OR

"'

T H E PROTECTION OF H U M A N RIGHTS303

The Committee on the Rights of the Child has also discussed the issue of
the 'girl-child' and the question of child p r o ~ t i t u t i o n . ~ ' ~The Committee Against ~ o r t u r e ~ "The prohibition oftorture is contained in awidevariety ofhuman rights316
and humanitarian law treaties,317and has become part of customary international law. Indeed it is now established as a norm of jus cogens.'18
Issues concerning torture have come before a number of human rights
organs, such as the Human Rights
the European Court of~ ~ 'the International Criminal Tribunal on the Former
Human ~ i g h t s and~u~oslavia."'""eefurther below, p. 307.

315 See e.g. A. Byrnes, 'The Committee Against Torture' in Alston, United Nations and Htr-rnan Rights, p. 509; R. Bank, 'Country-Oriented Procedures under the Convention against
Torture: Towards a New Dynamism' in Alston and Crawford, Future, p. 145; Rehman,
I~zterlzationalHuman Rights Latv, chapter 15; N . Rodley, The Treatment ofPrisorzers underInternatioi~alLaw, 2nd edn, Oxford, 1999; A. Boulesbaa, The UN Conveiltion on Torture and Prospects for Enforceinent, The Hague, 1999; M. Evans, 'Getting to Grips with
Torture', 51 ICLQ, 2002, p. 365; J. Burgers and H. Danelius, The United Nations Convention against Torture, Boston, 1988; Meron, Human Rights in International Law, pp.
126-30, 165-6, 511-15; S. Ackerman, 'Torture and Other Fornls of Cruel and Unusual
Punishment in International Law', 11 Vailderbilt Journal of Transnational Law, 1978, p.
653; Amnesty International, Torture in the Eighties, London, 1984; A. Dormenval, 'UN
Committee Against Torture: Practice and Perspectives', 8 NQHR, 1990, p. 26; 2.Haquani,'La Convention des Nations Unies Contre la Torture', 90 RGDIP, 1986, p. 127; N. Lerner,'The UN Convention on Torture', 16 Israel Yearbook on Hurnari Rights, 1986, p. 126, and R.
St J. Macdonald, 'International Prohibitions against Torture and other Forms of Similar
Treatment or Punishment' in Internatioilul Law at a Tiine ofperplexity (ed. Y.Dinstein),
Dordrecht, 1987, p. 385.
'I6 See e.g. article 5 of the Universal Declaration; article 7 of the Civil and Political Rights
Covenant; article 3 of the European Convention on Human Rights; article 5 of the InterAmerican Convention on Human Rights; article 5 of the African Charter on Human andPeoples' Rights; the UN Convention against Torture, 1984; the European Convention
on the Prevention of Torture, 1987 and the Inter-American Convention to Prevent andPunish Torture, 1985.
See e.g. the four Geneva Red Cross Conventions, 1949 and the two Additional Protocols
of 1977.
See e.g. Exparte Pinochet (No. 3) [2000] 1 AC 147, 198; 119 ILR, p. 135 and the Ftrrundiijacase, 12 1 ILR, pp. 213,260-2. See also Al-Adsani v. UK, European Court of Human Rights,
Judgment of 21 November 2001, para. 61.
31' See e.g. Vuolanne r. Finland, 265187 and generally Joseph et al., International Covenant,chapter 9.
3'0 See e.g. Selmouni v. France, Judgment of 28 ruly 1999.
321 See e.g, the Delalii- case, IT-96-21, Tudgineilt of 16 November 1998.

"'

304

I N T E R N A T I O N A L LAW

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was signed on 10 December 1984 andentered into force in 1987. It built particularly upon the Declaration on
the Protection of All Persons from being subjected to Torture and Other
Cruel, Inhuman and Degrading Treatment or Punishment adopted by theGeneral Assembly in 1975."~ Other relevant instruments preceding theConvention were the Standard Minimum Rules for the Treatment of Prisoners, 1955, the Code of Conduct for Law Enforcement Officers, 1979 (article 5) and the Principles of Medical Ethics, 1982 (Principles 1 and 2).323
Torture is defined in article 1 of the Convention against Torture tomean:[alny act by which severe pain or suffering, whether physical or mental, isintentionally inflicted o n a person for such purposes as obtaining from him
or a third person information or a confession, punishing him for an act heor a third person has committed or is suspected of having committed, or
intimidating or coercing him or a third person, or for any reason based o ndiscrimination of any kind, when such pain or suffering is inflicted by or at
the instigation of or with the consent or the acquiescence of a public official
or other person acting in an official capacity. It does not include pain or
suffering arising only from, inherent in or incidental to lawful sanctions.

The states parties to the Convention are under duties inter alia to takemeasures to prevent such activities in territories under their jurisdiction(article 2), not to return a person to a country where he may be subjected
to torture (article 3), to make torture a criminal offence and establish
jurisdiction over it (articles 4 and 5),324to prosecute or extradite persons
charged with torture (article 7) and to provide a remedy for persons
tortured (article 14).
The Committee against Torture was established under Part I1 of theConvention against Torture, 1984 and commenced work in 1987. It
consists of ten independent experts. In an interesting comment on the
proliferation of international human rights committees and the dangers
of inconsistencies developing, article 17(2) provides that in nominating
experts, states parties should 'bear in mind the usefulness of nominating
persons who are also members of the Human Rights Committee'.

'22

General Assembly resolution 3452 (XXX).

323 Note also the Principles on the Protection of Persons under Detention or Imprisonment

adopted by the General Assembly in 1989. See generally, H14rnanRights: A Compilation ofInternational Instruments, United Nations, New York, vol. I (First Part), 1993, Section H.
324 See, as far as the UK is concerned, sections 134 and 135 of the Criminal Justice Act 1988.

THE PROTECTION OF HUMAN RIGHTS305

The Committee receives states' reports (article 19), has an inter-statecomplaint competence (article 21) and may hear individual communications (article 22). In both the latter cases, it is necessary that the state orstates concerned should have made a declaration accepting the competence of the Committee.325Article 20 of the Convention provides that if
the Committee receives 'reliable evidence' that torture is being systematically practised in the territory of a state party, it may invite the state inquestion to co-operate in examining the evidence. The Committee may
designate one or more of its members to make a confidential inquiry. In
doing so, it shall seek the co-operation of the state concerned and, withthe latter's agreement, such an inquiry may include a visit to its territory.
The Committee will transmit the findings of the inquiry to the state, together with appropriate comments or suggestions. The proceedings up to
this point are to be confidential, but the Committee may, after consulting the state, decide to include a summary account of the results in its
annual report. This additional, if cautiously phrased, power may provide
the Committee with a significant role.326It should be noted that states
parties have the ability to 'opt out' of this procedure if they so wish at thetime of signature or ratification, or a c c e ~ s i o n . ~ ~ 'The conduct of the reporting procedure bears much resemblance tothe practice of the UN Human Rights Committee. Guidelines have been
issued for states parties and the discussions with state representatives
are held with a view to establishing a constructive dialogue. Many problems facing other treaty bodies also appear with regard to the Committee
against Torture, for example, overdue reports and problems relating to
implementation of the Convention generally. The Committee may also
make comments on states' reports and may issue general comment^."^
The first three cases before the Committee under article 22 were admissibility decisions concerning Argentinian legislation exempting juniormilitary officers from liability for acts of torture committed during the
1976-83 period and its compatibility with the Torture'25

3'"ote"'?''"9

See e.g. the Committee's report of Spring 2002, A157144, p. 82.
e.g. the report of the Committee o n Sri Lanka in this context, Al57144, p. 59 (2002).
See also E. Zoller, 'Second Session of the UN Commission against Torture', 7 NQHR,
1989, p. 250.
Article 28(1). See e.g. A157144, p. 81.
To date only one has been issued o n the implelnentation of article 3 concerning deportation to states where there is substantial reason to fear torture: see A153144, annex
IX.
OR, MAiand144S v. Argentina, coillinunications nos. 1-311988. Decisions of23 November
1989. See 5 Interights Bulletin, 1990, p. 12.

306

I N T E R N A T I O N A L LAW

The Committee noted that there existed a general rule of internationallaw obliging all states to take effective measures to prevent and punish
acts of torture. However, the Convention took effect only from its dateof entry (26 June 1987) and could not be applied retroactively to cover
the enactment of legislation prior to that date. Therefore, the communications were inadmissible. However, the Committee did criticise theArgentinian legislation and stated that Argentina was morally bound toprovide a remedy to the victims of torture.
The Committee has held that where substantial grounds exist for
believing that the applicant would be in danger of being subjected to torture, the expulsion or return of the applicant by the state party concernedto the state in which he might be tortured would constitute a violationof article 3 of the onv vent ion.'^' It has also been noted that wherecomplaints of torture are made during court proceedings, it is desirable
that they be elucidated by means of independent proceedings.331In May
2002, the Committee against Torture revised its rules of procedure andestablished the function of rapporteur for new complaints and interim
measures.332 An optional protocol to the Convention which would
enable the Committee through a new sub-committee on prevention to
conduct regular visits to places of detention and make recommendations
to states parties was adopted by the General Assembly in December 2002
and opened for signature in February 2003. The optional protocol also
calls upon states parties to establish national preventive mechanisms forthe prevention of torture at the domestic
In 1985, the United Nations Commission on Human Rights appointeda Special Rapporteur on Torture to examine questions relevant to tortureand to seek and receive credible and reliable information on such questions and to respond to that information without delay.334The work of
the rapporteur includes the sending of urgent appeals and an increasing
number of country visits. He is directed to co-operate closely with theCommittee against Torture.335The rapporteur also works with other UN
officials. In 1994, for example, the rapporteur accompanied the Special
Rapporteur on Rwanda on a visit to that country, while later that year the"'Khan v. curl ad^^, CATlCl13lDl1511994. "' Parot v. Spain, CATlCl14lDl611990.
'" See resolution 571199. See e.g. 1992143; ElCN.411994166; ElCN.412002lWG.llICRP.l"'Al57144, p. 219.

and ElCN.412000158. A draft was adopted by ECOSOC on 24 July 2002: see ECOSOC
resolution 2002127 and Commission on Human Rights resolution 2002133.
334 Resolution 1985133.
"5 See e.g. E. Zoller, '46th Session of the United Nations Comnlission on Human Rights',
8(2) NQHR, 1990, pp. 140, 166.

THE PROTECTION OF HUMAN RIGHTS

307

rapporteur accompanied the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions on a visit to ~ o l o m b i aThe
. ~ ~rapporteur~
produces an annual report to the Commission on Human Rights.
The Committee on the Rights of the
The Convention on the Rights ofthe Child was adopted by the GeneralAssembly on 20 November 1 9 8 9 . ~It' ~provides that in all actions concerning
children, the best interests of the child shall be a primary consideration. A
variety of rights are stipulated, including the inherent right to life (article6); the right to a name and to acquire a nationality (article 7); the right tofreedom of expression (article 13); the right to freedom of thought, conscience and religion (article 14); the right not to be subjected to arbitraryor unlawful interference with privacy, family, home or correspondence
and the right to the enjoyment of the highest attainable standard of health(article 24).
States parties agree to take all appropriate measures to protect the childfrom all forms of physical and mental violence (article 19) and from economic exploitation (article 32) and the illicit use of drugs (article 33), andthere are specific provisions relating to refugees and handicapped children. In addition, states parties agree to respect the rules of international
humanitarian law applicable to armed conflicts relevant to children (article 38). This provision was one response to the use of children in the
Iran-Iraq war.
Article 43 of the Convention on the Rights of the Child provides forthe establishment of a Committee. This Committee, which was elected
See EICN.411995i34, pp. 6-7. See also the European Convention on the Prevention of Torture, below, p. 337, and the African guidelines on tortureandadopted in 2002, www.achpr.orglFinal~Comm~1niq~1~~32nd~OrdinarySession.doc~v~w.apt.chlafricalriglRobbe1~2OIsland%2OG~1idelines.pdf.
337 See e.g. G. Lansdown, 'The Reporting Procedures under the Convention on the Rights of
the Child' in Alston and Crawford, Future, p. 113; Rehman, International Htlrnaii Rightj
Law, chapter 14; Revisiting Children's Rights: 10 Years ofthe U N Convention on the Rightsof the Child (ed. D. Fottrell), The Hague, 2000; D. ~McGoldrick,'The UN Convention on
the Rights of the Child: 5 Intern~ltiorzalJotlrnal of Law ~ l n dthe Family, 1991, p. 132; M.
Santos Pais, 'The Convention on the Rights of the Child and the Work of the Committee:
26 Israel Law Review, 1992, p. 16, and Santos Pais, 'Rights of Children and the Family'
in Herkin and Hargrove, Htnnan Rights: A n Agenda for the Next Century p. 183. See also
G. Van Bueren,The International Law on the Rights of the Child, Dordrecht, 1995, andThe United Nations Converition on the Rigllts of the Child (ed. S. Detrick), Dordrecht,
1992.
The Convention came into force on 2 September 1990. Note also the Declaration on the
Rights of the Child adopted by the General Assembly in resolutioil 1386 (XI\'), 1959 andthe proclamation of 1979 as the International Year of the Child in resolution 311169.
'j6

"'

308

I N T E R N A T I O N A L LAW

in 1991, is composed of ten independent experts3" and has the competence to hear states' reports (article 44). The Committee itself submits
reports every two years to the General Assembly through ECOSOC. The
Committee can recommend to the General Assembly that the SecretaryGeneral be requested to undertake on its behalf studies on specific issues
relating to the rights of the child, an innovation in the functions of suchtreaty bodies, and it can make suggestions and general recommendations(article 45). The Committee (like the Committee on Economic, Social
and Cultural Rights) sets aside time for general discussions on particular
topics in accordance with Rule 75 of its provisional rules of procedure.
For example, at its second session in 1992, the Committee discussed thequestion of children in armed conflicts,340while at its fourth session, theproblem of the economic exploitation of children was disc~ssed.~"A
general discussion on the 'girl-child' was held at the eighth session of theCommittee in 1 9 9 5 , and~ ~ ~one on the administration of juvenile justiceat the ninth se~sion.'~'As part of the general reporting process, the Committee adopted anurgent action procedure at its second session. Provided that the state
concerned has ratified the Convention, that the situation is serious andthere is a risk of further violations, the Committee may send a communication to the state 'in a spirit of dialogue' and may request the provisionof additional information or suggest a ~isit.'~%tits fourth session, theCommittee established a working group to study ways and means whereby
the urgent action procedure could be pursued effe~tively.~~'The Committee has produced a set of guidelines concerning states' reports346and apre-sessional working group considers these reports and draws up a list of
Note that the suggestion was made in 1995 for an increase in membership to eighteen.
An amendment to this effect is due to come into force in 2003.
340 Al49141, pp. 94 ff. This led to a recommendation to the General Assembly to request the
Secretary-General to undertake a special study on the means to protect children in armed
conflicts: see CRCICISR.72, p. 2 and resolution 481157. This led to the adoption of the
Optioilal Protocol on the Iilvolveillent of Children in Armed Conflict, General Asseillbly
resolution 541263,25 May 2000, ~vhichentered into force on 12 February 2002. Note thatthe question of the protection of children in armed coilflicts was referred to in the Vienna
Declaration and Programme ofAction, 1993, Part 11, B, 4: see 32 ILM, 1993, p. 1680. See
also G. Van Bueren, 'The International Legal Protection of Children in Armed Conflicts',
43 ICLQ, 1994, p. 809.
'41 Al49141, pp. 99 ff.
See CRCICI38, p. 47. This led to the adoption of the Optional Protocol on the Questionof the Sale of Children, Child Prostitution and Child Pornography: see General Assembly
resolution 541263 of 25 May 2000 which entered into force on 18 January 2002.
'4' See CRCICI43, p. 64.
z 4 4 See CRCICISR.42, p. 2 and Al49141, pp. 69-71.
z4'
Ibid,
See CRCICl5.
339

'"

'''

THE PROTECTION OF HUMAN RIGHTS

309

issues needing further clarification which is sent to the state concerned.347
As is the case with other reporting mechanisms, the state whose report isbeing considered by the Committee is invited to send representatives tothe appropriate meetings. After the process is completed, the Committee
issues Concluding Observations in which both the positive aspects of thereport considered and the problems identified are noted, together withsuggestions and recommendation^.^^^ Various follow-up measures to theconsideration of reports exist, but usually they consist of the request forthe provision of further information."' The Committee also holds 'days of
discussion' to examine relevant issues3j0and issues General comment^.^^'The Committee on the Protection of Migrant workers3j2
The International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families was adopted by theGeneral Assembly and opened for signature in December 1 9 9 0 . ~ 'The~
Convention defines a migrant worker as 'a person who is to be engaged, isengaged, or has been engaged in a remunerated activity in a state ofwhich
he or she is not a national' (article 2). This includes, for example, frontier
and seasonal workers, workers on offshore installations and specifiedemployment workers, but excludes employees of international organisations or official state employees abroad, refugees, stateless persons, students and workers on offshore installations who have not been admitted
to take up residence and engage in a remunerated activity in the state of
employment (article 3).
Migrant workers are entitled to equality of treatment with nationals
in areas such as matters before courts and tribunals (article IS), termsof employment (article 25), freedom to join trades unions (article 26),j4'

See e.g. CRCICI121,2002.

'" See e.g. Al49141, pp. 20 ff.; CRCICl38, pp. 10 ff, and CRCICI43, pp. 10 ff. See also
CRCICI121,2002, pp. 8 ff.
'" See e.g. CRClCl27lRev.3, 1995 detailing such measures up to mid-1995.
350 See e.g. the day of discussion on 'The private sector as service provider and its role in

implementing child rights' held in September 2002, CRCICI121, p. 145.
Ibid., p. 159 (on 'The role of national human rights institutions in promoting and protecting children's rights').
j5' See e.g. K. Samson, 'Human Rights Co-ordination within the UN System' in Alston,
United Natioizs and Hzl~nanRights, pp. 620, 641 ff.; S. Huile and J. Niessen, 'Ratifying the
UN Migrant TtTorkersConvention: Current Difficulties and Prospects: 12 NQHR, 1994,
p. 393, and S. Hune and J. Niessen, 'The First UN Conventioil on migrant Workers: 9
NQHR, 1991, p. 133.
The necessary twenty ratifications were achieved on 10 Deceinber 2002. The Con\~ention
came into force on 1 April 2003.
351

"'

3lO

I N T E R N A T I O N A L LAW

medical treatment (article 28), access to education for their children (article 30) and respect for cultural identity (article 31). Migrant workers areprotected from collective expulsion (article 22). Further provisions deal
with additional rights for migrant workers and members of their families
in a documented or regular situation (Part IV).
The Convention provides for the creation of a Committee of fourteen
independent experts (Part VII). States parties will be required to provide
reports on measures taken to give effect to the provisions of the Convention (article 73). An inter-state complaints procedure is provided for inarticle 76, on the condition that the states concerned have made a declaration expressly recognising the competence of the Committee to hear suchcomplaints, while under article 77 an individual complaints procedurecan be used with regard to states that have made a declaration recognising
the competence of the Committee in this regard.

Conclusions
Most international human rights conventions obligate states parties totake certain measures with regard to the provisions contained therein,
whether by domestic legislation or otherwise.'j4 Several treaties require
states parties to make periodic reports.''' The number of treaties establishing committees specifically to oversee the implementation of particular conventions, however, is not large, although increasing, while relatively
very few provide for the right of individual petition,356although consideration is now being given to the p ossibility of extending the right of individual petition to the Economic, Social and Cultural Rights Committee.
The proliferation of committees raises problems concerned both withresources and with consistency.35' The question of resources is a serious" See e.g. article 2 of the Civil and Political Rights Covenant, 1966; article 1 of the European
Convention on Human Rights, 1950; articles 1 and 2 of the American Convention on
Human Rights, 1969; article 5 of the Genocide Convention, 1948; article 4 of the Convention on the Suppression and Punishment of the Crime of Apartheid, 1973 and article
3 of the Slavery Convention, 1926.
'j5 See, in addition to the conventions mentioned above, article 7 of the Apartheid Convention, 1973. Several conventions provide for the communication of information t o the UN
Secretary-General: see e.g. article 33 of the Convention Relating to the Status of Stateless
Persons, 1954 and articles 35 and 36 of the Convention Relating to the Status of Refugees,
1951.
" 6 See generally, in addition to the above section, Tardu, Human Rights.
357 See e.g. E. Tistounet, 'The Problem of Overlapping among Different Treaty Bodies' in
Alston and Crawford, Future, p. 383.

THE PROTECTION OF HUMAN RIGHTS

311

and ongoing difficulty. The Vienna Declaration and Programme of
Action, 1993 emphasised the necessity for a substantial increase in the
resources for the human rights programme of the UN and particularly
called for sufficient funding- to be made available to the UN Centre for
Human Rights, which inter alia provides the administrative support for
the human rights organs and committees discussed in this chapter.jS8
The various human rights committees themselves have pointed to theresource problem.359The Committee on the Elimination of Racial Discrimination and the Committee against Torture changed their financing
system so that, since January 1994, they have been financed under the
regular budget of the United ~ a t i o n s . ' ~The'
Committee on Economic,
Social and Cultural Rights has sought additional resources from the
Economic and Social
Nevertheless, the fact remains thathuman rights activity within the UN system is seriously underfunded.
The question of consistency in view of the increasing number of humanrights bodies within the UN system has been partially addressed by the establishment of an annual system of meetings between the chairpersons of
the treaty bodies."' Issues of concern have been discussed, ranging fromthe need to encourage states to ratify all human rights treaties, concern~'
to establish
about reservations made to human rights t r e a t i e ~ , ~attempts
that successor states are automatically bound by obligations under international human rights treaties from the date of independence irrespectiveof confirmation,364the formulation of new norms and instruments andthe promotion of human rights education, to consideration of the continuing problem of overdue reports365and the role of non-governmental
See Part 11, Section A ofthe Vienna Declaration and Programme of Action, 32 ILM, 1993,
pp. 1674-5.
'" See e.g. the Human Rights Committee, A149144, and the Committee Against Torture,
A150144. See also the Report of the Secretary-General to the sixth meeting of chairpersonsof treaty bodies, HRIlMCl199512, p. 13.
See General Assembly resolution 471111 and HRIlMCl199512, p. 14.
Ibid., p. 15.
'62 See General Assembly resolution 491178, 1994, which endorsed the recommendation of
the chairpersons that the meetings be held annually. The first meeting of the chairpersonsof treaty bodies was held in 1984, A1391484 and the second in 1988, A144198. See alsoe.g. A1451636, A/47/628,13/49/537, HRIlMCl199512, A1551206,2000,and A157156,2002.
Note also that the first inter-committee meeting of the human rights treaty bodies took
place in September 2002, HRIlICMl200213.
363 See further below, chapter 15, p. 829.
'64 See further below, chapter 16, p. 885.
365 Both the Committee on the Elimination of Racial Discrimination and the Committee
on Economic, Social and Cultural Rights have established procedures enabling them to

'"

312

I N T E R N A T I O N A L LAW

organ is at ion^.^^^ The development of early warning and preventive procedures by the committees is to be particularly noted.367The Committee
on the Elimination of Racial Discrimination, for example, under its urgent
procedures may, since 1994, review the human rights situation in states~
the Human Rights Comparties that give rise for especial c ~ n c e r n , "while
mittee is able to request states parties to submit special urgent report^."^The specialised agencies

The International Labour ~ r ~ a n i s a t i o n ~ ~ ~The ILO was created in 1919 and expanded in 1 9 4 6 . ~The~ ~Declarationof Philadelphia of 1944 (which was incorporated in the ILO constitution
in 1946) reaffirmed the basic principles of the organisation. These are (a)examine the situation in the state concerned: see above, pp. 233 and 286. Other Committees have sought to hold meetings with the officials of the states concerned in orderto encourage submission of overdue reports, HRIlMCl199512, p. 7.
See e.g. HRIIMCI1995.
367 The role of the treaty bodies in seeking to prevent human rights violations has beenemphasised: see e.g. A1471628, para. 44.
368 See above, p. 290.
See above, p. 294. See also above, p. 307, with regard to the procedures of the Coininittee
on the Rights of the Child.
"O See e.g. M'eissbrodt, Fitzpatrick and Newman, lnternational Hunian Rights, chapter 16;
L. Betten, 'At its 75th Anniversary, the International Labour Organisation Prepares Itself
for an Active Future: 12 NQHR, 1994, p. 425; L. S~vepston,'Human Rights Complaints
Procedures of the International Labour Organisation' in Hannum, Gtlide to International
H t m a n Rights Pmctice, p. 99; .'1 Leary, 'Lessons from the Experience of the International
Labour Organisation' in Alston, United Nations and Hnrnan Rights, p. 580; C . W. Jenks,'Human Rights, Social Justice and Peace' in Tlle Internatioi~alProtection ofHunlan Riglzts(eds. A. Schou and A. Eide), Stockholm, 1968, p. 227, and Social Jnstice in tlze Law of~Vatioi~s,
Oxford, 1970; E . A. Landy, The Efectiveness oflnternntional Srlpervision: Tlzirty
Years of ILO Expei.ience, New York, 1966, and 'The Implementation Procedures of theInternational Labour Organisation', 20 Santa Clara Lrzw Review, 1980, p. 633; N. Valticos,'The Role of the ILO: Present Action and Future Perspectives' in Ramcharan, Hnrnalz
Rights: Thirty Yean After the L'niversal Declaration, p. 211, Le Droit International dn
Trai,ail, Paris, 1980, and 'The International Labour Organisation' in Tlze International
Dimensions of Htrrnaiz Rights (eds. K. Vasak and P. Alston), Paris, 1982, vol. I, p. 363;
of Human Rights', 10 Jotlrnal offilternational
F. Wolf, 'ILO Experience in In~plen~entation
Laiv a n d E c o n o ~ ~ ~1975,
i c s , p. 599; 1. M. Servais, 'ILO Standards on Freedom ofAssociation
and Their Implementation: 123 International Labour Review, 1984, p. 765, and Robertson
andMerrills, HurnanRights, p. 282. See also H. K. Nielsen, 'The Concept ofDiscriminationin ILO Convention No. 111: 43 ICLQ, 1994, p. 827.
An agreement bringing the ILO into relationship with the UN as a specialised agency
under article 63 of the UN Charter came into force on 14 December 1946: see General
Assembly resolution 50 (I).

THE PROTECTION OF HUMAN RIGHTS

3U

that labour is not a commodity, (b) that freedom of expression and of association are essential to sustained progress and (c) that poverty anywhereconstitutes a danger to prosperity everywhere. The ILO is composed of aunique tripartite structure involving governments, workers and employers and consists of three organs: a General Conference of representativesof member states (the International Labour Conference), the Governing
Body and the International Labour ~ f f i c e . "The~ ILO constitution enables
the organisation to examine and elaborate international labour standards,
whether Conventions or Recommendations. The former are the more formal method of dealing with important matters, while the latter consist
basically of guidelines for legislation. Between 1919 and 1994, 175 Conventions and 182 Recommendations were adopted by the ILO, all dealing
basically with issues of social ju~tice.~'"nder article 19 of the ILO constitution, all members must submit Conventions and Recommendations
to their competent national authorities within twelve to eighteen monthsof adoption. Under article 22, states which have ratified Conventions are
obligated to make annual reports on measures taken to give effect to themto the International Labour Office.3i4 Under article 19, members mustalso submit reports regarding both unratified Conventions and Recommendations to the Director-General of the International Labour Office
at appropriate intervals as requested by the Governing Body, concerning
the position of their law and practice in regard to the matters dealt within the Convention or Recommendation and showing the extent to which
effect has been given or is proposed to be given to the provisions of theConvention or Recommendation, including- a statement of the difficulties which prevent or delay ratification of the Convention c ~ n c e r n e d . ~In"
1926-7, a Committee of Experts on the Application of Conventions andRecommendations was established to consider reports submitted bymember states. The comments of the twenty-member Committee, appointed by the Governing Body on the suggestion of the Director-General' 7 2 See UNAction, p. 28. The tripartite structure means that the delegation of each member

state to the International Labour Conference includes two representatives of the government, one representative of workers and one representative of the employers. There arefifty-six members of the Governing Body, with t~venty-eightgovernment representatives
and fourteen each froill employers' and workers' organisations.
373 See Valticos, 'International Labour Organisation', p. 365, and Swepston, 'Human Rights
Complaints Procedures of the Interilatioilal Labour Organisation', p. 100. See also
E/CN.4/Sub.21199415,p. 3.
374 However, in practice the annual rule is relaxed: see Valticos, 'International Labour Organisation', p. 368. Governments are obliged by article 2 3 ( 2 ) to communicate copies of
the reports to employers' and workers' organisations.
The latter provision does not, of course, apply in the case of Recomn~endations.

"'

3l4

I N T E R N A T I O N A L LAWof the International Labour Office, on ratified Conventions take the formof 'observations' included in the printed report of the Committee in thecase of more important issues, or 'requests' to the government concernedfor information, which are not published in the report of the Committee.
In the case of unratified Conventions and Recommendations, a 'generalsurvey' of the application of the particular instrument in question is carried
A Committee on the Application of Conventions and Recommendations of the International Labour Conference is appointed at eachof its annual sessions, composed of tripartite representatives to discuss
relevant issues based primarily upon the general report of the Committeeof ~ x p e r t sIt. ~may~ ~also draw up a 'Special List' of cases to be drawn tothe attention of the Conference.
Two types of procedure exist. Under articles 24 and 25, a representation may be made by employers' or workers' organisations to the Office
to the effect that any of the members have failed to secure the effective
observation of any Convention to which it is a party. If deemed receivableby the Governing Body, the matter is examined first by a committee ofthree of the Governing Body then by the Governing Body itself. States areinvited to reply and both the original representation and the reply (if any)
may be publicised by the Governing Body. There have not been many
representations of this kind.37s Under articles 26-9 and 31-3 any member may file a complaint against another member state that the effective
observance of a ratified Convention has not been secured. The Governing
Body may call for a reply by the object state or establish a commission of
inquiry. Such a commission is normally composed of three experts andthe procedure adopted is of a judicial nature. Recourse may be had by theparties to the International Court of Justice. Ultimately the Governing
Body may recommend to the Conference such action as it considers wiseand expedient. The complaints procedure was first used by Ghana against
Portugal regarding the Abolition of Forced Labour Convention, 1957 in
its African territories.379
A special procedure regarding freedom of association was establishedin 1951, with a Committee on Freedom of Association which examines awide range of complaints. It consists of nine members (three from each
3i6

va1tlcos, 'International Labour Organisation', pp. 369-70, and Wolf, 'ILO Experience','

pp. 608-10. See, for example, Freedom of Association and Collective Bargaining: General
S ~ ~ r v eGeneva,y,1983.
3'7 The Committee usually coilsists of 200 members.
37R But see e.g. Official Bulletin of the ILO, 1956, p. 120 (Netherlands Antilles); ibid., 1967,
p. 267 (Brazil) and ibid., 1972, p. 125 (Italy). See also ibid., 1978 (Czechoslovakia).
z79 See Official Bulletin of the ILO, 1962; ibid., 1963 (Liberia) and ibid., 1971 (Greece).

THE PROTECTION OF HUMAN RIGHTS

3l5

of the tripartite elements in the ILO). The Committee submits detailed
reports to the Governing Body with proposed conclusions and suggested
recommendations to be made to the state concerned, and a considerable
case-law has been built up.3s0A Fact-finding and Conciliation Commission has been created for more serious and politically delicate cases which
operates with the consent of the state concerned. Accordingly, few questions have been dealt with,ju although in 1992 a visit was made to South
Africa and recommendations made to the ILO and ECOSOC. The government of that country sent a response to the Director-General of the
ILO and, at the request of ECOSOC, the ILO Committee on Freedomof Association examined South Africa's report in 1994. The Committee's
report, noting changes taking place in that country, was approved by theGoverning Body and transmitted to E C O S O C . ' ~In~ addition, a systemof 'direct contacts' has been instituted, consisting of personal visits by
ILO officials, or independent persons named by the Director-General, inorder to assist in overcoming particular difficulties. These have included,
for example, questions regarding freedom of association in Argentina in
1990 and the situation of Haitian workers on sugar plantations in the
Dominican Republic in 1991.3s3
The United Nations Educational, Scientific and Cultural ~ r ~ a n i s a t i o n ' ~ ~UNESCO came into being in November 1946 and was brought into relationship with the UN on 14 December that year.385The aim of the
See e.g. G. Von Potobsky, 'Protection of Trade Union Rights: Twenty Years M'ork of theCommittee on Freedom of Association', 105 International Labour Review, 1972, p. 69.
See also Servais, 'ILO Standards', and Freedom ofdssociation: Digest of Decisions of theFreedom ofAssociation Committee ofthe GoverningBody ofthe ILO, 3rd edn, Geneva, 1985.
By the end of 1991, over 1,600 cases hadbeen consideredby the Committee: see Swepston,'Human Rights Complaints Procedures of the International Labour Organisation: p. 109.
See Valticos, 'International Labour Organisation: pp. 384 ff. See also Official Bulletin of
the ILO, 1966 (Japan), and N. Valticos, 'Un Double Type d'Enquete de 1'OIT au Chili',
AFDI, 1975, p. 483.
' 8 ~ / ~ ~ . 4 / ~ u b . 2 / 1 9 9p.44./ 5 ,3" See N. Valticos, 'Une Nouvelle Forme d'Action Internationale: Les "Contacts Directs"',
27 AFDI, 1981, p. 481, and V. Leary, 'Lessons from the Experience of the International
Labour Organisation' in Alston, L'nited Natioizs and Human Rights, p. 611.
'8"eee.g. S. Marks, 'The Complaints Procedure of the United Nations Educational, Scientific and Cdtural Organisation' in Hannum, Guide to International Htnnan Rights Practice,p. 86; D. llreissbrodt and R. Farley, 'The UNESCO Human Rights Procedure: An Evaluation', 16 HRQ, 1994, p. 391; P. Alston, 'UNESCO's Procedures for Dealing with Human
Rights Violations: 20 Sar~taClara Law Review, 1980, p. 665; H. S. Saba, 'UNESCO andHuman Rights' in Vasak and Alston, International Dirnetzsiorls of Human Rights, vol. 11,
p. 401; Robertson and Merrills, Hziman Rights, p. 288, and UNAction, pp. 308 and 321.
See General Assembly resolution 50 (I).

'"

"'

3l6

I N T E R N A T I O N A L LAW

organisation, proclaimed in article 1 of its constitution, is to contributeto peace and security by promoting collaboration through education, science and culture 'in order to further universal respect for justice, for therule of law and for the human rights and fundamental freedoms which
are affirmed for the peoples of the world'. The organisation consists of aGeneral Conference which meets every two years and in which all member
states are represented, an Executive Board, elected by the conference, anda secretariat headed by a Director-General. Under article 4(4), member
states undertake to submit Conventions and Resolutions to the competent national authorities within a year of adoption and may be required tosubmit reports on action taken.386unlike the ILO, UNESCO has no constitution provision for reviewing complaints concerning the implementation of conventions procedure. However, in 1962 a Protocol instituting aConciliation and Good Offices Commission was adopted to help resolve
disputes arising between states parties to the 1960 Convention against
Discrimination in Education. It entered into force in 1968 and the firstmeeting of the eleven-member Commission was in 1971. It aims to makeavailable its good offices in order to reach a friendly settlement between thestates parties to the convention in question. In 1978 the Executive Boardof UNESCO adopted decision 104 EXI3.3, by which it established a procedure to handle individual communications alleging violations of humanrights. Ten conditions for admissibility are laid down, including the requirement that the human rights violated must fall within UNESCO'scompetence in the fields of education, science, culture and information,and the need for the communication to be compatible with international
human rights interests. The condition with regard to domestic remedies
is rather different than is the case with other human rights organs, in that
all the communication needs to do is to 'indicate whether an attempt has
been made to exhaust domestic remedies. . . and the result of such an attempt, if any'. The investigating body is the Executive Board's Committee
on Conventions and Recommendations, which is composed of twentyfour members and normally meets twice a year in private session.387The
examination of communications is confidential. The Committee decides
whether a communication is admissible and then makes a decision on the
merits. The task ofthe Committee is to reach a 'friendly solution designed
386 See, for example, the obligation to submit reports under article 7 of the 1960 Convention
387

against Discrimination in Education. See also CiZi Action, p. 163.
Formerly the Committee on Conventions and Recommendations in Education, ibid., pp.
321-2. See also AICONF.157iPCi6llAdd.6, 1993.

T H E PROTECTION OF H U M A N RIGHTS

3l7

to advance the promotion of the human rights falling within UNESCO's
fields of competence'.388 Confidential reports are submitted to the Executive Board each session, which contain appropriate information plus
recommendation^."^ It is also to be noted that under this procedure the
Director-General generally has a role in seeking to strengthen the action of
UNESCO in promoting human rights and initiating consultations in confidence to help reach solutions to particular human rights problems.390
UNESCO published a report in 1993 concerning the operations of theprocedure, noting that the Committee had examined 414 cases between
1978 and 1993, of which it settled 241 individual cases.391It is unclear
how successful the procedure has been, in view of the strict confidentiality
which binds it,392the length of time taken to produce results and the highproportion of cases declared i n a d m i ~ s i b l e . ~ ~ ~A special procedure to deal with disappeared persons has been established by the Committee. Communications dealing with such persons areplaced on a Special List, if insufficient information is forthcoming fromthe government in question, and examined by the Committee.394In addition to cases concerning violations of human rights which are individual
and specific, UNESCO may also examine questions of massive, systematic or flagrant violations of human rights resulting either from a policy
contrary to human rights applied by a state or from an accumulation ofindividual cases forming a consistent pattern.395In the instance of such

Decision 104.EXi3.3, para. 14(k).

'" In the April 1980 session, for example, forty-five communications were examined as
to admissibility, of which five were declared inadmissible, thirteen admissible, twenty
suspended and seven deleted from the agenda. Ten communications were examined on
the merits, UNESCO Doc. 21 Cl13, para. 65.
"O
Ibld., paras. 8 and 9.
j 9 ' See UNESCO Doc. 141lEXl6 and Ilreissbrodt and Farley 'UNESCO Human Rights Procedure: p. 391. It was noted that during this period, 129 individuals were either releasedor acquitted, 20 authorisedto leave and 34 to return to the state concerned, 24 were able toresume banned employment or activity, and 11 were able to resume a banned publicationor broadcast, ibid.
See G. H. Dumont, 'UNESCO's Practical Action on Human Rights: 122 International
Social Sciences Journal, 1989, p. 585, and K. Partsch, 'La Mise en Oeuvre des Droit de
1'Homme par 1'UNESCO: 36 AFDI, 1990, p. 482.
'93 Weissbrodt and Farley note that ofsixty-four cases studied only five were declared admissible, 'UNESCO Human Rights Procedure: p. 399. Ofthese, three concerned one particularcountry in Latin America. One case was considered over a nine-and-a-half-year period
and another was considered over eight and a half years.
3y4 UNESCO Doc. 108 EXlCRlHRiPROCl2 Rev. (1979).
Decision 104. EXi3.3, para. 10.

'"

'"

3l8

I N T E R N A T I O N A L LAW

questions, the issue is to be discussed by the Executive Board of the General
Conference in
Suggestions for further reading
The Future of U N H t ~ m a RightsnTreaty Monitoring(eds. P. Alston and J. Crawford),
Cambridge, 2000
Bowett's Law of bzter~zationalInstittltions (eds. P. Sands and f! Klein), 5th edn,
Manchester, 2001
T.Meron, H u m a n Rights Lazv-Making in tke United Nations, Oxford, 1986
J. Rehman, Internatiorzal H u m a n Riglzts Law, London, 2002
A. H . Robertson and J. Merrills, H u m a n Rights in the World, 4 t h edn, Manchester,
1996
H . Steiner and P. Alston, International H u m a n Riglzts in Context, 2nd edn, O x f o r d ,2000'" Ibid., para. 18.

The regional protection of human rights

The Co~lncilof Europe
The Council of Europe was founded in 1949 as a European organisationfor encouraging and developing intergovernmental and interparliamentary co-operation. Its aim as laid down in article 1 of the Statute is toachieve a greater unity between member states for the purpose of safeguarding and realising the ideals and principles which are their common
heritage and facilitating their economic and social progress. The principles of the Council of Europe as established in article 3 of the Statuteinclude pluralist democracy, respect for human rights and the rule oflaw. A Committee of Ministers, consisting of the Foreign Ministers ofmember states, and a Parliamentary Assembly, consisting of delegationsof members of national parliaments, constitute the principal organs of
the Council of Europe, together with a Secretary-General and supporting
secretariat. There also exists a Standing Conference of Local and Regional
Authorities of Europe, consisting of national delegations of local and regional elected representatives. The Council of Europe also maintains a
number of support and assistance programmes.'
The demise of the Soviet Empire in Eastern and Central Europe has
been the primary reason for the great increase in member states over thelast few years.3 The process of joining the Council of Europe has provided
the Council with some influence over prospective members and this has
led both to expert advice and assistance being proffered and to commitments being entered into in the field of human rights by applicants. For'

See generally Morzitorirzg Htnnnn Rights in Europe (eds. A. Bloed, L. Leicht, M. Nowak and
A. Rosds), Dordrecht, 1993.
See e.g. AICONF.l57/PC/66/Add.2, 1993.
With the entry of Bosnia and Herzegovina in April 2002 and Serbia and Montenegro in
April 2003, the number of member states reached forty-five.

320

I N T E R N A T I O N A L LAW

example, Parliamentary Assembly Opinion No. 191 on the Application
for Membership by the Former Yugoslav Republic of ~ a c e d o n i a h o t e sthat the applicant entered into commitments relating to revision and establishment of new laws (for example, with respect to the organisationand functioning of the criminal justice system), amendment of the constitution in order to include the right to a fair trial, and agreement to sign avariety of international instruments including the European Convention
on Human Rights, the European Convention on the Prevention of Tortureand the Framework Convention for the Protection of National Minorities.
In addition, the applicant agreed to co-operate fully in the monitoringprocess for implementation ofAssembly Order No. 508 (1995) on the honouring of obligations and commitments by member states of the Councilof Europe as well as in monitoring processes established by virtue of theCommittee of Ministers Declaration of 10 November 1994. The Council of Europe has also moved beyond agreeing or noting commitments
made at the time of application for membership and approval thereof
to consideration of how those commitments have been honoured once
an applicant has become a member state. The Committee of Ministers
Declaration of 10 November 1994 provides a mechanism for examining
state practice in this area and one may expect further developments in thiscontext.' In 1999, the Council ofEurope established the office ofthe Commissioner for Human Rights within the General Secretariat to promote
education and awareness in the field ofhuman right^.^ The Commissioner" 6 HRLJ, 1995, p. 372. See also Parliamentary Assembly Opinion No. 190 on the ApplicationofUkraine for Membership, ibid.,p. 373, and Opinion Nos. 183 (1995) on the Applicationof Latvia for Membership, 188 (1995) on the Application of Moldova for Membershipand 189 (1995) on the Application of Albania for Membership, HIINF (95) 3 pp. 77 ff.
Note that under Recommendation 1055 (1995), the Assembly decided to suspend theprocedure concerning its statutory opinion on Russia's request for membership in thelight of the situation in Chechnya. However, Russia joined the Council of Europe in early1996.
See further below, p. 333. Note also Assembly Order 508 (1995). The Committee on the
Honouring of Obligations and Commitments by Member States of the Council of Europe(known as the Monitoring Committee) commenced operations in April 1997 under theauthorisation of Assembly resolution 1115 (1997). This Committee is responsible for verifying the fulfilment of the obligations assumed by the member states under the terms of
the Council of Europe Statute, the European Convention on Human Rights and all otherCouncil of Europe conventions to which they are parties, as well as the honouring of thecommitments entered into by the authorities of member states upon their accession to theCouncil of Europe. It reports directly to the Assembly.
Committee of Ministers resolution (99) 50. The Commissioner cannot consider individual
petitions and exercises functions other than those of the supervisory bodies of Council ofEurope human rights instruments. No general reporting system exists in this framework.

'REGIONAL PROTECTION OF HUMAN RIGHTS

321

may also issue opinions7 and make recommendations8 and undertake

visit^.^
Although a large number of treaties between member states have beensigned under the auspices of the Council of Europe, undoubtedly the mostimportant has been the European Convention on Human Rights.
The European Convention on Human ~ i ~ h t s "The Convention was signed on 4 November 1950 and entered into force
in September 1953." Together with eleven Protocols, it covers a wide
variety of primarily civil and political rights.12 The preamble notes that
the European states are like-minded and have a common heritage of political tradition, ideals, freedoms and the rule of law. The rights coveredin the Convention itself include the right to life (article 2)) prohibition' See e.g. ColllmDH(2002)7,Opinion 112002 on certain aspects ofthe United Kingdom 2001
derogation from article 5(1) of the European Convention on Human Rights.
See e.g. Recommendations CommDHlRec(2001)1 concerning the rights of aliens wishingto enter a Council of Europe member state and the enforcement of expulsion orders, andCommDHlRec(2002)1 concerning certain rights that must be guaranteed during the arrestand detention of persons following 'cleansing' operations in the Chechen Republic of theRussian Federation.
See e.g, the visit to Russia including Chechnya, Press Release 072a (2003).
l o See e.g. Jacobs arid White: The Europeari Convention on Humari Rights (eds. C. Ovey and
R. C. A. M'hite), 3rd edn, Oxford, 2002; D. J. Harris, M. O'Boyle and C. IVarbrick, Lawof the Europearz Convention on H~lmaizRights, London, 1995; La Conventiori Europeerine
des Droits de 1'Hornrrie (eds. P. Imbert and L. Pettiti), Paris, 1995; L. J. Clements, N. Mole
and A. Simmons, European Human Rights: E k i n g a Case under the Convention, 2nd edn,
London, 1999; The E~llropeanSystem for the Protection of Human Rights (eds. R. St J.
~Macdonald,F. Matscher and H. Petzold), Dordrecht, 1993; R. Beddard, Human Rights
and Europe, 3rd edn, Cambridge, 1993; A. H. Robertson and J. G. Merrills, Hurrian Rights
in Europe, 4th edn, Manchester, 2001; P. Van Dijk and G. 1. H. Van Hoof, Theory andPractice of the European Convention on Human Rights, 3rd edn, Deventer, 1998; P. J. Velu
and R. Ergel, La Cotzvention Europtentze des Droits de /'Hornme, Brussels, 1990; G. CohenJonathan, La Convention Europeenne des Droits de I'Honlme, Paris, 1989; E. Lambert, Les
Effets des Avrits de la Cour Etlroplentze des Droits de l'Hornme, Brussels, 1999; K . Starmer,
European Human Rights Law, London, 1999; and J. Fawcett, The Application of t\leEuropean
Cotzventiotz on Human Rights, 2nd edn, Oxford, 1987. See also L. G. Loucaides, Essays on
the Developing Law of Hunian Rights, Dordrecht, 1995; 1. G. Merrills, The DevelopnientofIr~ternatiorzalLaw by tlze Etlropean Court ofHurnarz Rights, 2nd edn, Manchester, 1993,
and A. Drzemczewski, The Etlropean Hunian Rights Converition in Dorriestic Law, Oxford,
1983.
l 1 All forty-four member states of the Council of Europe as at March 2003 have ratified
the Convention. Since Serbia and Montenegro joined the Council in April 2003 as theforty-fifth member, it will in due course become a party to the Conyention.
l 2 Protocols XI1 of 2000 (on the general prohibition of discrimination) and XI11 of 2002 (onthe abolition of the death penalty) are not currently in force. Econon~icand social rights
are covered ill the European Social Charter, 1961. See below, p. 334.

322

I N T E R N A T I O N A L LAW

of torture and slavery (articles 3 and 4), right to liberty and security of
person (article 5), right to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by law (article6), prohibition of retroactive criminal legislation (article 7), right to respect for private and family life (article 8), freedom of thought, conscienceand religion (article 9), freedom of expression (article lo), freedom of assembly and association (article 1I), the right to marry and found a family(article 12), the right to an effective remedy before a national authority
if one of the Convention rights or freedoms is violated (article 13) and anon-discrimination provision regarding the enjoyment of rights and freedoms under the Convention (article 14). In addition, several protocols
have been added to the substantive rights protected under the Convention.
Protocol I protects the rights of property, education and free elections bysecret ballots, Protocol IV prohibits imprisonment for civil debt and protects inter alia the rights of free movement and choice of residence andthe right to enter one's own country, Protocol VI provides for the abolition of the death penalty, while Protocol VII provides inter alia that analien lawfully resident in a state shall not be expelled therefrom except in
pursuance of a decision reached in accordance with the law, that a person
convicted of a criminal offence shall have the right to have that conviction
or sentence reviewed by a higher tribunal and that no one may be triedor punished again in criminal proceedings for an offence for which hehas already been finally acquitted or convicted. Like other international
treaties, the European Convention imposes obligations upon states parties to respect a variety of provisions. In this instance the Convention
has also been incorporated into the domestic legislation of all forty-four
current states parties, apart from 1reland,13 although the Convention
does not provide as to how exactly the states parties are to implement
internally the relevant obligations.14 However, it has been emphasisedthat:
l3 The UK incorporated the Convention in the Human Rights Act 1998. Ireland is currently

1218considering incorporation: see e.g. http://www.gov.ie/committees-29/c-j~~stice/2002
r/Pagel.htm. See also e.g. 1.Polakiewicz andV. Jacob-Foltzer,'The European Human Rights
Conveiltion in Domestic Law: 12 HRLI, 1991, pp. 65 and 125, and Harris et al., Law of theEuropean Convention, p. 24, note 2. The situation of Serbia and Montenegro, which joined
the Council of Europe in April 2003 as the forty-fifth member, is as yet unclear.
l 4 See e.g, the Swedish Engine Drivers' Union case, Series A, vol. 20, 1976, p. 18; 58 ILR,
p p 19, 36. See also the Belgian Linguistics case, Series A, rol. 6, 1968, p. 35; 45 ILR,
pp. 136, 165.

REGIONAL PROTECTION OF HUMAN RIGHTS

323

unlike international treaties of the classic kind, the Convention comprises
more than mere reciprocal engagements between contracting states. It creates, over a n d above a network of mutual a n d bilateral undertakings, objective obligations, which in the words of the preamble, benefit from a'collective enforcement'."

In addition, a more teleological and flexible approach to the interpretation of the Convention has been adopted.16 The European Court of
Human Rights has emphasised that the Convention is a living instrument to be interpreted in the light of present-day conditions and thisapproach applies not only to the substantive rights protected under theConvention, but also to those provisions which govern the operation of
the Convention's enforcement machinery.17 In addition, the Court has
noted that the object and purpose of the Convention as an instrument forthe protection of individuals requires that its provisions be interpreted
and applied so as to make its safeguards practical and effective." The
Convention should also be interpreted as far as possible in harmony withother principles of international law.l"t has been emphasised that theConvention constitutes a 'constitutional instrument of European public order ("ordre
The Convention applies, of course, within
the territory of contracting states, but the concept of 'jurisdiction' underarticle 1 has been interpreted to include the possibility of application to extradition or expulsion of a person by a contracting state to the territory ofa non-contracting state21and the situation where acts ofthe authorities ofcontracting states, whether performed within or outside national boundaries, produce effects outside their own territory.22Further, in Loizidou v.
Turkey the Court emphasised that the responsibility of a contracting
state may also arise when it exercises effective control or 'effective overall
article 1 and Ireland v. UK, Series A, vol. 25, 1978, pp. 90-1; 58 ILR, pp. 188, 290-1.
See also Loizidou v. Turkey, Series A, vol. 310, 1995, pp. 22-3; 103 ILR, p. 622.
l 6 See e.g. the V r e r case, Series A, vol. 26, 1978; 58 ILR, p. 339, and see also the Marckx case,
Series A, vol. 31, 1979; 58 ILR, 1). 561. See also below, chapter 15, p. 843.
l 7 See Loizidotl v. Turkey, Series A, vol. 310, 1995, p. 23; 103 ILR, p. 622.
lS See Soering v. LX, Series A, vol. 161, 1989, p. 34; Artico v. Italy, Series A, vol. 37, p. 16 andLoizidou v. Turkey, Series A, vol. 310, p. 23; 103 ILR, p. 622.
l9 See Al-Adsani v. UK, Judgment of 21 November 2001, para. 60.
20 Loizidou v. Turkey, Series A, vol. 310, pp. 24 and 27; 103 ILR, p. 622.
See e.g. Soering v. UK, Series A, vol. 161, 1989, pp. 35-6.
22 See e.g. Drozd and Janousek v. France and Spain, Series A, vol. 240, 1992, p. 29. See also
Issa v. Turkey, Judgment of 30 May 2000, and Ocalan v. Turkey, Judgment of 14 December
2000.
'"ee

''

324

I N T E R N A T I O N A L LAW

control' of an area outside its national territory, irrespective of the lawfulness of such control.23Despite this, the Court has stated that its recognition of the exercise of extraterritorial jurisdiction by a contracting state is
exceptional and that the Convention's notion of jurisdiction is essentiallyterrit~rial.~~The convention system
Until the coming into force of Protocol XI, the system consisted of aparttime Commission and a part-time Court. The function of the former wasessentially to constitute a filtering system in deciding which applications
were declared admissible, an organ for the establishment of the facts of theparticular case and a mechanism of friendly settlement. Its reports went to
the Committee of Ministers of the Council of Europe. Where no friendly
settlement was achieved, the application could, within three months, besent to the Court. The Court would then decide the case. This system has
now changed. The increase in the number of parties to the Convention
and the dramatic rise in applications25meant that reform of the systembecame imperative.26Protocol XI was therefore adopted and came into
effect on 1 November 1998.
~
permanent and full-time Court was estabUnder article 1 9 , a~single
lished, so that the former Court and Commission ceased to exist. The
new Court consists of a number of judges equal to that of the contracting parties to the onv vent ion.^^ Judges are elected by the Parliamentary
Assembly of the Council of Europe for six-year terms.29To consider cases" Series A, uol. 310, p. 20; 103 ILR, p. 622. See also Cyprus v. Turkey, European Court of
Human Rights, Judgment of 10 May2001, paras. 75 ff.;120 ILR, p. 10.
24 See Bailkovit v. Belgiuril, Judgment of 12 December 2001, paras. 63,67 and 71. The Court

noted that 'the Convention is a multi-lateral treaty operating. . . i n an essentially regional
context and notably in the legal space (espace juridique) of the contracting states', ibid.,para. 80.
" Whereas in 1988 there was a total of 1,013 applications, in 2002 there were 28,257 applications: see Information on the Court's Statistics 2002, http://wv.echr.coe.int/EngiPress/
2003ljanlStatistics 2002.htm.
26 This was accepted by e.g. Assembly Recommendation 1194 (1992) and the Vienna Declaration of 1993, 14 HRLJ, 1993, p. 373.
" Of the Convention as amended by Protocol XI.
2S Article 20. Currently forty-four, although Armenia, Azerbaijan and Bosnia andHerzegovina have yet to take their seats. Since Serbia and Montenegro joined the Council in April 2003 as the forty-fifth member, it will in due course become a party to theConventioil and becoine entitled to nominate a judge.
'9 Articles 22 and 23. Note that there will no longer be a prohibition on two judges having
the same ilatioilality. The terms of office of the judges will end at the age of seventy.

REGIONAL PROTECTION OF HUMAN RIGHTS

325

before it, the Court may sit in Committees of three judges, in Chambers of seven judges and in a Grand Chamber of seventeen judges.30The
Rules of Court provide for the establishment of at least four Sections, thecompositions of which are to be geographically and gender-balanced andreflective of the different legal systems among the contracting states3'
The Chambers of seven judges provided for in the amended Convention are constituted from the Sections, as are the Committees of three
judges.32 The plenary Court is responsible for the election of the President and Vice-Presidents of the Court, the appointment of the Presidents of the Chambers, constituting Chambers and adopting rules ofpr~cedure.~~In ascertaining whether an application is admissible, the President of
the Chamber to which it has been assigned will appoint a judge as Judge
Rapporteur to examine the application and decide whether it should beconsidered by a Committee of three or a
A Committee, acting
unanimously, may decide to declare the application inadmissible or strike
it out of the list.35That decision is final. In other cases, the application will
be considered by a Chamber on the basis of the Judge Rapporteur's report.
The Chamber may hold oral hearings. The question of admissibility willthen be decided. Once an application is declared admissible, the Chamber
may invite the parties to submit further evidence and written observations and a hearing on the merits may be held if the Chamber decides or
one of the parties so requests.36At this point the respondent governmentis usually contacted for written observation^.^' Where a serious question
affecting the interpretation of the Convention or its Protocols is raised
in a case, or where the resolution of a question might lead to a result
inconsistent with earlier case-law, the Chamber may, unless one of theparties to the case objects, relinquish jurisdiction in favour of the GrandR d e 25.
" Rules 26 and 27.
Rule 49.
jqbbid. and article 28. In so doing, the Committee will take into account the report of
the Judge Rapporteur, Rule 53. Note that the Court has the right to strike out an application at any stage of the proceedings where it concludes that the applicant does notintend to pursue his application or the matter has been resolved or, for any other reason
established by the Court, it is no longer justified to continue the examination of the application. However, the Court shall continue the examination of an application if respectfor human rights as defined in the Convention and the Protocols thereto so requires: see
article 37.
' 6 Rule 59.
37 In the case of inter-state cases, the respondent government will be automatically contacted:
see Rule 51.
j0

Article 27.

" Article 26.

31

j4

326

I N T E R N A T I O N A L LAW

The Court may give advisory opinions, although in very restrictive circumstance^.^^
The intervention of third parties remains in the new system. In allcases before a Chamber or the Grand Chamber, a contracting party, oneof whose nationals is an applicant, shall have the right to submit writtencomments and to take part in hearings, while the President of the Court
may, in the interest of the proper administration of justice, invite any
contracting party which is not a party to the proceedings, or any person concerned who is not the applicant to submit written comments or
take part in hearing^.^' Once an application has been declared admissible,
the Court will pursue the examination of the case and place itself at thedisposal of the parties with a view to securing a friendly settlement." If
Article 30. While there is no specific power in the Convention under ~vhichthe Court
may order interim measures of protection with binding effect, Rule 39 of the Rules of
Court provides that the Chamber or, where appropriate, its President may, at the requestof a party or of any other person concerned, or of its own motion, indicate to the parties
any interim measure which it considers should be adopted in the interests of the parties
or of the proper conduct of the proceedings before it. Notice of these ineasures shall begiven to the Committee of Ministers and the Chamber may request information fromthe parties on any matter connected with the implementation of any interim measure
it has indicated. The Court noted in Cruz Varas v. Sweden, Series A, vol. 201, 1991, that
although the power to order binding interim ineasures could not be derived either directly
or by way of inference from the Convention, where a party chose not to comply with suchan indication of interim ineasures under Rule 36 (the predecessor to the current Rule39) it knowingly assumed the risk of being found in breach of article 3. See also Corlka v.
Belgilr?iz,Judgment of 13 March 2001. The Court took a different approach in Miz~i~atkuloi~
aildAbd~4ras~4lovicu, Turkey, European Court of Human Rights, Tudgment of 6 February
2003. In that decision, the Court, referring to the practice of other international organs
including the International Court of Justice and the Inter-American Court and Commission of Human Rights, held that article 34 of the Convention requires that applicants areentitled to exercise their right to individual application effectively, while article 3, relevantin the context of expulsion, also necessitated an effective examination of the issues inquestion. The Court noting that Rule 39 indications 'permit it to carry out an effective
examination of the application and to ensure that the protection afforded by the Convention is effective: concluded that 'any state party to the Convention to which interim
measures have been indicated in order to avoid irreparable harm being caused to the victim of an alleged violation must comply with those measures and refrain from any act oromission that will undermine the authority and effectiveness of the final judgment', paras.
107-10.
Article 47. Only the Committee of Ministers can make such a request and advisory opinions
cannot deal with any question relating to the content or scope of the rights and freedoms
laid down in Section 1 of the Convention and its Protocols or with any question which the
Court or Committee of Ministers might have to consider during proceedings institutedin accordance with the Convention.
Article 36.
41 Article 38. Proceedings in the latter case will be confidential.

""

REGIONAL PROTECTION OF HUMAN RIGHTS

327

a friendly settlement is reached, the Court will strike the case out of its
list.42 Hearings before the Court will be in public unless the Court inexceptional circumstances decides otherwise. The Court will be able toafford just satisfaction to the injured party if necessary, where a violation
is found and the domestic law of the contracting party concerned allows
only partial reparation to be made.4Wnder article 43, within a period of
three months from the date of the judgment of the Chamber, any party
to the case may, in exceptional cases, request that the case be referredto the Grand Chamber. A panel of five judges of the Grand Chamber
will accept this request if the case raises a serious question affecting theinterpretation or application of the Convention or Protocols, or a serious issue of general importance. If the panel does accept the request, theGrand Chamber will decide the case by means of a judgment. Judgmentsof the Grand Chamber will be final, as will those of a Chamber where
the parties declare that they will not request that the case be referredto the Grand Chamber, or three months after the date of judgment if
reference to the Grand Chamber has not been requested, or when thepanel of the Grand Chamber rejects the request to refer. The final judgment will be published44 and is binding upon the parties," and it willbe transmitted to the Committee of Ministers, which shall supervise its
exec~tion.~~A number of crucial changes took place as a result of the reform of thesystem. The right of individual petition became automatic rather thandependent upon the acceptance of the state complained against," thenew Court became full-time, the function of the Committee of Ministers was limited to the supervision of the execution of the judgmentsof the Court rather than including a decision-making function in theabsence of referral of a Commission report to thethe number of judges in a Chamber was reduced from nine to seven, the rightof third-party intervention became part of the Convention itself rather
than a Rule of Court and hearings became public apart from the friendly
settlement process. However, under article 30, the parties to a case areable to prevent the relinquishment ofjurisdiction by a Chamber in favour" Article 39.
45

"

"

'"rticle
41.
Article 44.
Article 46(1).
Article 46(2).
Compare former article 25 with current article 34.
See former article 32 and e.g. P. Leuprecht, 'The Protection of Human Rights by Political
Bodies: The Example of the Committee of Ministers of the Council of Europe' in Progressin the Spirit of Human Rights: Festschriftfiir Felix Ermacora (eds. M . Nowak, D. Steurerand H. Tretter), Kehl, 1988, p. 95.

"

328

I N T E R N A T I O N A L LAWof the Grand Chamber. In addition, where a case is referred to the Grand
Chamber under article 43, the Grand Chamber will include the President of the Chamber and the judge who sat in respect of the state party
concerned, who will thus be involved in a rehearing of a case that they
have already heard. This unusual procedure remains a source of somedisquiet.
The Convention provides for the right of both inter-state and individual application. Under article 33, any contracting state may institutea case against another contracting state. To date applications have been
lodged with the Commission by states involving six situation^.^^ The firstinter-state application to reach the Court was Ireland v. UK." Such applications are a means of bringing to the fore an alleged breach of theEuropean public order, so that, for example, it is irrelevant whether theapplicant state has been recognised by the respondent state.51 Article 34
provides for the right of individual petition to the Commission and thishas proved to be a crucial provision.s2 Originally the right of individual petition only existed where the state complained against had declaredunder former article 25 that it recognised the competence of the Commission to receive such petitions. Since the coming into force of Protocol XI,
the right is automatic.""heConvention system does not contemplate an
4"yprutl.ccase (Greece v. UKJ,1956 and 1957, two applications; Austria v. Italy, 1960; fiveapplications against Greece, 1967-70; Ireland v. UK, 1971; Cyprtrs v. Turkey, 1974-94,
four applications, and five applications against Turkey, 1982.
j0 Series A, vol. 25, 1978; 58 ILR, p. 188. Note also the Court's decision in Cyprus v. Turkey,
rudgrnent of 10 May 2001; 120 ILR, p. 10.
j1 Cyprux v. Turkey (ThirdApplication),13 DR 85 (1978).
" Uy the end of 2002, the number of applications allocated to a decision-making bodywas 92,544; applications declared inadmissible numbered 69,816, while 3,632 judgments
had been made: see Info~.rnation Note on the Court's Statistics 2002, http://~~ww.echr.coe,int/eng/press/2003/jan/StatisticsS2002.htm.
" Note that the issue of reservations to former articles 25 and 46 (concerning the jurisdictionof the Court prior to Protocol XI) was discussed in the case-law. The Court noted thatwhile temporal reservations could be valid, reservations beyond this were not: see Loizidou
v. Turkey (Preliminary Objections), Series A, vol. 310, 1995; 103 ILR, p. 622. The Court,
in dismissing the territorial limitations upon the Turkish declarations under articles 25
and 46, held that such declaration therefore took effect as valid declarations without such
limitations, Series A, vol. 310 pp. 27-9. Turkey had argued that if the limitations were
not upheld, the declarations theillselves would fall. Not to adopt this approach would, theCourt noted, have entailed a weakening of the Convention system for the protection ofh ~ u n a nrights, which coilstituted a European constitutional public order, and would run
counter to the aim of greater unity in the maintenance and further realisation of human, DR 216.
rights, ibid. See also the Commission Report in Chrysostolnos v. E ~ r k e y68

REGIONAL PROTECTION OF HUMAN RIGHTS

329

a c t i o p ~ p u l a r i sIndividuals.~~
cannot raise abstract issues, but must be able
to claim to be the victim of a violation of one or more of the Convention
rights.'' However, the Court has emphasised that:a n individual may, under certain conditions, claim t o be the victim of a violation occasioned by the mere existence of secret measures o r of legislation
permitting secret measures, without having t o allege that such measures
were i n fact applied t o him.'6

A near relative of the victim, for example, could also raise an issue wherethe violation alleged was personally prejudicial or where there existed avalid personal interest.''The Court may only deal with a matter once all domestic remedies havebeen exhausted according to the generally accepted rules of internationallaw and within a period of six months from the date on which the final
decision was takeneS8Such remedies must be effective. Where there are nodomestic remedies to exhaust, the act or decision complained against willitself normally be taken as the 'final decision' for the purposes of article
26.j9 The need to exhaust domestic remedies applies also in the case ofinter-state cases as does the six-month rulee6' In addition, no petition
See e.g. X v. Austria, 7 DR 87 (1976) concerning legislation on abortion.
See e.g. Pine Valley v. Ireland, Series A,vol. 222, 1991; Johnston v. Ireland, Series A,vol. 112,
1986; Marckx v. Belgium, Series A, 1101. 31, 1979; Can~pbelland Cosans v. UK, Series A, vol.
48, 1982; Eckle v. Federal Republic of Germany, Series A, vol. 51, 1982 and Vijayanutlzan
and Pilsparajah v. France, Series A, vol. 241-B, 1992.
j6 The K1as.c case, Series A, vol. 28, 1979, pp. 17-18; 58 ILR, pp. 423, 442. See also e.g. theMarckx case, Series A, vol. 31, 1979, pp. 12-14; 58 ILR, pp. 561, 576; the Dudgeon case,
Series A, vol. 45, 1982, p. 18; 67 ILR, pp. 395, 410; the Belgian Linguistics case, Series A,
vol. 6, 1968; 45 ILR, p. 136 and Norris v. Ireland, Series A, No. 142, 1988.
" See e.g. Application 100155, X v. FRG, 1 Yearbook of the ECHR, 1955-7, p. 162 and Application 1478162, Y v. Belgium, Yearbook of the ECHll, 1963, p. 590. See also Cyprus v.
Turkey, Judgment of 10 May 2001; 120 ILR, p. 10.
j8 Article 35. See Akdivar v. Turkey, Judgnlent of 16 September 1996. As to the meaning ofdomestic remedies in international law, see below, p. 730.
j9 See e.g. X v. UK,
8 DR, pp. 211,212-13 and Cyprtls v. Turkey, Yearbook ofthe European
Convention on Human Riglzts, 1978, pp. 240-2. Where, however, there is a permanentstate of affairs ~vhichis still continuing, the question of the six-month rule can only arise
after the state of affairs has ceased to exist: see e.g. De Becker v. Belgium, 2 Yearbook of
the Etrropeun Convention on Human Rights, 1958, pp. 214, 244. The rule is strict andcannot be waived by the state concerned: see Walker v. UK, Judgment of 25 January
2000.
60 See Cypr~lsv. Turkey, Judgment of 10 May 2001, paras. 82 if. Note that the Court suggested
that the remedies provided by the 'Turkish Republic of Northern Cyprus' had to be taken
into account in this situation, ibid. See above, chapter 5, p. 212.
j4

j5

330

I N T E R N A T I O N A L LAW

may be dealt with which is anonymous or substantially the same as amatter already examined, and any petition which is incompatible with theConvention, manifestly ill-founded61 or an abuse of the right of petition
is to be rendered i n a d m i ~ s i b l e . ~ ~The Court, in an ever-increasing number of j~dgments,~%asdeveloped a jurisprudence of considerable i m p ~ r t a n c eIt. ~has~ operated on thebasis of a number of evolving principles. In particular, the Court will allow
states a degree of leeway in a system composed of obligations of contracting states and a European-level supervisory mechanism. The doctrine of'the margin of appreciation' means that the Court will not interfere incertain domestic spheres while retaining a general overall supervision.
For example, in Brannigan and McBride v. UK, the Court held that states
benefit from a 'wide margin of appreciation' with regard to the processof determining the existence and scope of a public emergency permitting
derogation from certain provisions of the Convention under article 1 5 . ~ 'This margin of appreciation will vary depending upon the content of therights in question in substantive proceedings or on the balancing of rights
in contention. It will be wider with regard to issues of personal morality,66
but narrower in other case^.^' The essential point is, as the Court noted
in Z v. UK, that: 'It is fundamental to the machinery of protection established by the Convention that the national systems theiselves provide
redress for breaches of its provision, the Court exercising its supervisory
This also means that therole subject to the principle of sub~idiarit~.'~'
Court is wary of undertaking f a ~ t - f i n d i n gand~ ~ similarly cautious about
indicating which measures a state should take in order to comply with its
obligations under the C o n ~ e n t i o n . ~ ~" See e.g. Boyle and Rice v. UK,Series A, vol. 131,1988.This does not apply to inter-statecases.

'' Article 35.See Harris et al., Latv of the European Convention, pp. 608 ff.; Jacobs and White,
chapter 24 and e.g. the Ihgruncy case, Series A, vol. 12,1971;56 ILR,p. 351.
'' One judgment was delivered in its first year of operation in 1960;6 in 1976;17 in 1986;
25 in 1989;126 in 1996;695 in 2000 and 844 in 2002:see Infornzation Note on the Court's
Statistics 2002, http://~mw.echr.coe.int/eng/press/2003/jan/Statistics_2002.htm.
64 See e.g. P. Mahoney, 'Judicial Activism and Judicial Self-Restraint in the European Courtof Human Rights: Two Sides of the Same Coin: 1 1 HRLJ, 1990,p.57.
6' Series A, No. 258-B,1994,para. 43.
66 See e.g. Handyside v. UK, Series A, vol. 24,1981;58 ILR, 17.150.
67 E.g. fair trial and due process questions: see e.g. The Sunday Tirnes v. UK,Series A, No.
30,1979.
Tudgrnent of 10 May 2001,para. 103.
69 See e.g. the Tanli case, Judgment of 10 April 2001.
70 The Vgt Verein gegen Tierfabriken case, Tudgment of 28 Tune 2001,para. 78.

REGIONAL PROTECTION OF HUMAN RIGHTS

33l

The Court has dealt with a number of critical issues. In Irelandv. UK,~'for example, the Court found that the five interrogation techniques usedby the UK Forces in Northern Ireland amounted to a practice of inhumanand degrading treatment, contrary to article 3.72In iMcCann v. U K , ~the~Court narrowly held that the killing by members of the security forcesof three members of an IRA unit suspected of involvement in a bombing
mission in Gibraltar violated the right to life under article 2. In Golder
v. U K , ~the~ Court inferred from article 6(1) a fundamental right of access to the courts, and the Court has emphasised the importance of fairtrial mechanisms such as the principle of contempt of court." The Court
has also developed a considerable jurisprudence in the field of due pro~ e s s that
' ~ is having a significant impact upon domestic law, not least in
the UK. A brief reference to some further examples will suffice. In the
Marckx case,77 the Court emphasised that Belgian legislation discriminating against illegitimate children violated the Convention, while in the
Young, James and ~ e b s t ecase78r
it was held that railway workers dismissed
for refusing to join a trade union in the UK were entitled to compensation. In the Brogan case,79the Court felt that periods of detention underanti-terrorist legislation in the UK before appearance before a judge orother judicial officer of at least four days violated the Convention. Thisdecision, however, prompted a notice of derogation under article 15 of
the Convention by the UK g ~ v e r n m e n t . ~ ~In the important Soering case,81the Court unanimously held that theextradition of a German national from the UK to the United States, where" Series A, vol. 25, 1978; 58 ILR, p. 188.
72 See also Cyprus Y, Turkey, where the Court held that the discriminatory treatment of the

GreekCypriots in the Turkish occupiednorth ofCyprus amountedto degradingtreatment,
Judgment of 10 May 2001, paras. 302-11; 120 ILR, p. 10.
" Series A, vol. 324, 1995.
Series A, vol. 18, 1975; 57 ILR, p. 200.
See e.g. Handyside v. L'K, Series A, vol. 24, 1981; 58 ILR, p. 150; the Dudgeon case, SeriesA, vol. 45, 1982; 67 ILR, p. 395 and the Sunday Tiines case, Series A, vol. 30, 1979; 58 ILR,
p. 491.
76 See e.g. S. Trechsel, 'Liberty and Security of Person' in Macdonald et al., European Systen~,p. 277; P. \'an Dijk, 'Access to Court', ibid., p. 345; 0. Jacot-Guillarmod, 'Rights Related toGood Administration (Article 6): ibid., p. 38 1; Harris et al. Law of tlzeEuropearl Corzventiorz,
chapter 6; and Digest ofStrasbourg Case-law relatingto the European Converltion on Human
Rights, Strasbourg, 1984, vol. I1 (article 6).
'7 Series A, No. 31, 1979; 58 ILR, p. 561.
78 Series A, No. 44, 1981; 62 ILR, p. 359.
" Series A, No. 145, 1988.
80 For the text, see e.g. 7 NQHR, 1989, p. 255. See also Brannigan and ~McBridev. UK,
SeriesA, V O ~258-B,.
1993.
81 Series A, No. 161, 1989.See also iMamatkulovandAbdura.culovic r.Turkey, E~~ropeail
Courtof Human Rights, Judginent of 6 February 2003, paras. 66 ff.

''

'"

332

I N T E R N A T I O N A L LAW

the applicant feared he would be sentenced to death on a charge of capital murder and be subjected to the 'death row' phenomenon, would
constitute a breach of article 3 of the Convention prohibiting tortureand inhuman and degrading treatment and punishment. Further, theCourt has held that the deportation to Iran of a woman who in the circumstances would have been at risk of punishment by stoning would
violate article 3.82 The Court has also emphasised that national security considerations had no application where article 3 violations were inquestion.83
The Court has approached its task in a generally evolving way. For
example, it has deduced from a number of substantive provisions thatcircumstances may arise in which a state would have a positive obligation
to conduct an inquiry or effective official investigation. This would arise,for instance, where individuals have been killed as a result of the use offorce by agents of the state,s4 or while in custody,s5 or 'upon proof ofan arguable claim that an individual, who was last seen in the custodyof agents of the state, subsequently disappeared in a context which may
be considered life-threatening'.86 Similarly, the Court has held that theright to life under article 2 entails also the obligation upon states to takeappropriate steps for the safeguarding of life within the juri~diction.~'Execution of Court decisions is the responsibility of the Committee of~ i n i s t e r s This. ~ ~ is a political body, the executive organ of the Councilof ~ u r o ~ eand, ' ~ consists of the Foreign Ministers, or their deputies, of
all the member statesg0 Under article 15 of the Statute of the Councilof Europe, the Committee of Ministers, acting on the recommendationof the Parliamentary Assembly or on its own initiative, considers the action required to further the aims of the Council of Europe, including
the conclusion of conventions or agreements, and the adoption by governments of a common policy with regard to particular matters. Under
article 16 of the Statute, it decides with binding effect all matters relating
to the internal organisation and arrangements of the Council of Europe.
" Jabari V. Turkey, Judgment of 11 July 2000.

Ckakal v. CTK, Judgment of 15 November 1996.
McCanri v. UK, Series A, No. 324, 1996.
E.g. Tanli,Judgment of 10 April 2001, para. 152.
S6 Cyprus V. Turkey, Judgment of 10 May 2001, para. 132; 120 ILR, 17. 10.
84 See e.g.

" LCB v. UK, Tudgment of 9 June 1998.

Article 46(2). See also the Rules adopted by the Committee of Ministers o n 10 January
2001, http:/icm.coe.int/intro/e-rules46.htm.
89 Article 13 of the Statute of the Council of Europe.
Article 14 of the Statute of the Couilcil of Europe.
88"

REGIONAL PROTECTION OF HUMAN RIGHTS333

Resolutions and recommendations on a wide variety of issues are regularly
ad~pted.~The' Committee of Ministers performs a variety of functions
with regard to the protection of human rights. For example, in its Declaration on Compliance with Commitlnents Accepted by Member Statesof the Council of Europe, adopted on 10 November 1994, the Committee
decided that it would consider the question of implementation of commitments concerning the situation of democracy, human rights and therule of law in any member state which may be referred to it by member
states, the Secretary-General or on the basis of a recommendation of the
Parliamentary Assembly.
Where the Court has found a violation, the matter will be placed on theagenda of the Committee of Ministers and will stay there until the respondent government has confirmed that any sum awarded in just satisfaction
under article 41 has been paid and/or any required individual measurehas been taken and/or any general measures have been adopted preventing new similar violations or putting an end to continuing vi01ation.~~Information so provided by states is to be accessible to the public, unlessthe Committee decides otherwise in order to protect legitimate public or
private interestsSg3
Despite the reform of the Convention system by Protocol XI, difficulties remain. Applications continue to increase in an unremitting andinexorable fashion and issues have arisen with regard to the relationshipbetween this mechanism and the European Union system.94Further developments are under on side ration.^^91 These are non-binding. Resolutions relate to the general work ofthe Council as such, while

recommendations concern action which it is suggested should be taken by the governmentsof member states.
" Rules 3 and 4. Very occasionally there have been difficulties. For example, the decision of
the Court in Loizidou v. Turkey awarding the applicant conlpensation for deprivation ofproperty rights remains to be implemented: see e.g. Jacobs and White, pp. 433-5. See alsointerim Committee resolutions DH (2000) 105 and DH (2001) 80.
" R~lle5.
"'eebelow, p. 344.
95 For example, the President of the Court has suggested that consideration be given
to a separate filtering mechanism of a summary nature to deal with minimal judicial input both with unmeritorious applications and with repetitive violations wheregeneral measures are necessary at national level: see speech of 23 ranuary 2003,
http://~~~~w.echr.coe.int/engiSyeeches/Seech~ildhaber.htm.
Further, the Committee of
Ministers has suggested that states establish a nlechanisnl enabling cases where a violation
has been found by the European Court to be re-opened at the domestic level: see Recominendation No. R (2000) 2. See also the Report o f the Evalt~ationGroup to the Committeet Human Rights, EG Court (2001) 1, 27 Septemberof ,Ministers on the European C o ~ r of2001.

I N T E R N A T I O N A L LAW

The European Social
The wide social and economic differences between the European states,
coupled with the fact that economic and social rights often depend fortheir realisation upon economic resources, has meant that this area ofconcern has lagged far behind that of civil and political rights. Seven yearsof negotiations were necessary before the Charter was signed in 1 9 6 1 . ~ ~The Charter consists of a statement of long-term objectives coupledwith a list of more restricted rights. The Charter covers labour rights andtrade union rights,98 the protection of specific groups such as children,
women, disabled persons and migrant workers,99social security rights,'''and protection of the family.''' In an attempt to deal with economic
disparities within Europe, the Charter provides for a system whereby
only ten of the forty-five paragraphs (including five 'key articles"") need
to be accepted upon ratification.
The Charter is implemented by means of a Committee of Independent
Experts, which receives every two years via the Secretary-General of theCouncil of Europe a report from contracting states on the way in which
they are applying the Charter. Copies of these reports are sent to nationalorganisations of employers and employees, whose comments the state in" See e.g. D. J. Harris, TheEuropearz Social Charter, 2nd edn, Charlottesville, 2000, 'A Fresh

Impetus for the European Charter: 41 ICLQ, 1992, p. 659, and 'The System of Supervisionof the European Social Charter - Problems and Options for the Future' in The Firttire ofEuropeai~Social Policy (ed. L. Betten), 2nd edn, Deventer, 1991, p. 1; 25 Years of theEuropearl Social Charter (eds. A. P.C. M. Jaspers and L. Betten), 1988; H. Mriebringhaus,'La Charte Sociale Europeenne: 20 Ans Apres la Conclusion du Traite: AFDI, 1982,
p. 934; 0. Kahn-Freund, 'The European Social Charter' in European Laiv and the Individual (ed. F. G. racobs), London, 1976, and 'La Charte Sociale Europeenne et la Convention
Europkenne des Droits de I'Homme', 8 HRJ, 1975, p. 527; F. M. Van Asbeck, 'La Charte
Sociale Europeenne' in Mtlanges Rolin, Paris, 1964, p. 427, and T. Novitz, 'Remedies for
Violation of Social Rights \t7ithin the Council of Europe' in The Future of Remedies in
Europe (eds. C . Kilpatrick, T. Novitz and P. Skidmore), London, 2000, p. 230.
" As at April 2003, there were thirty-three states parties to the Charter: see 34 ILM, 1995,
p. 1714.
Articles 1-6, 9-10.
99 Articles 7-8, 15, 18-19.
loo Articles 11-14.
lo' Articles 16-17. An Additional Protocol was signed in 1988 which added four more economic and social rights, guaranteeing the rights to equal opportunities in employment
without discrimination based on sex; information and consultation of workers within
the undertaking; participation in the determination and improvement of working conditions, and social protection of elderly persons. The Protocol entered into force on 4
September 1992.
lo2 Out of the following seven rights: the right to work, organise, bargain collectively, social
security, social and medical assistance, and the rights of the family to special protection
and of migrant workers and their families to protection and assistance: see article 20.

''

REGIONAL PROTECTION OF HUMAN RIGHTS

335

question must transmit to the Council of Europe. The reports of the governments and the comments of the Committee of Independent Experts
are then examined by a Governmental Committee on the Social Charter,
which reports to the Committee of Ministers of the Council of Europe.
The conclusions of the experts are transmitted additionally to the Parliamentary Assembly of the Council of Europe, which sends its views to
the Committee of Ministers. which in turn mav make recommendations
to each contracting party by a two-thirds majority.'03 The system works
on the basis of two-yearly supervision cycles. The process is complicatedand the conclusions of the Committee of Independent Experts have often
been obscured by the Governmental Committee.lo4
A Protocol Amending the Social Charter was adopted in Turin in 1991
with the aim of improving the supervision mechanism by strengthening
the role of the Committee of Independent Experts.lo5In particular, article 2 of the Protocol establishes in effect that the Committee has the
exclusive competence to interpret and apply the Charter. It permits theCommittee to request additional information directly from contracting
parties and hold oral hearings with representatives of contracting parties either on its own initiative or at the request of the contracting party,
while under article 4, the Governmental Committee will focus upon advising the Committee of Ministers on the basis of social, economic andother policy considerations in situations which should be the subject ofrecommendations to contracting parties. The Committee of Independent Experts has increased in size to at least nine members (from at least
seven) elected by the Parliamentary Assembly for six-year periods, reelectable once. The Protocol also increases the role of non-governmentalorganisations concerned with economic and social rights, for example,
by allowing such national organisations to send comments upon theirstates' reports directly to the Secretary-General (rather than via the contracting party) and by providing that the Secretary-General shall forward
a copy of the reports of contracting parties to the international organisations which have consultative status with the Council of Europe and haveparticular competence in the matters covered in the charter.lo6It is also
to be noted that, whereas under the Charter originally the Committee oflo3 See articles 27-9 of the Charter.

""ee,

for example, L. Betten, 'European Social Charter: 6 SIMNewsletter, 1988, p. 69.

lo5 See 31 ILM, 1992, p. 155.

'06

Article 1 of the Protocol, amending article 23 of the Charter. The reports of contracting
parties under articles 21 and 22 of the Charter, as well as under article 23, are to be madeavailable to the public on request.

336

I N T E R N A T I O N A L LAW

Ministers could make recommendations by a two-thirds majority of members of the Committee, under the Protocol that majority becomes twothirds of those voting, with entitlement to voting limited to contracting
parties.lO'
The Final Resolution of the Conference adopting the Protocol also
expressed the hope that a further protocol providing for a system of collective complaints might be drafted. An Additional Protocol to this effect
was adopted on 9 November 1995."' This provides that internationalorganisations of employers and trade unions, other international nongovernmental organisations with consultative status with the Councilof Europe placed on a list for this purpose by the Governmental Committee, and representative national organisations of employers and tradeunions within the jurisdiction of the contracting party against which they
have lodged a complaint may submit complaints alleging unsatisfactory
application of the ~ h a r t e r . "Contracting~
parties may also make a declaration recognising the right of any other representative national nongovernmental organisation within its jurisdiction which has particularcompetence in the matters governed by the Charter to lodge complaints
against it.''' Such complaints are to be sent to the Secretary-General oftheCouncil of Europe, who will notify the contracting party concerned andtransmit the complaint immediately to the Committee of Independent~ x ~ e r t s . "The' Committee, once it has declared the complaint admissible, will produce a report presenting its conclusions, which will be sent to
the Committee of Ministers.'12 On the basis of the report, the Committeeof Ministers will adopt a resolution by a majority of those voting (entitlement being limited to contracting parties). The required majority rises
to two-thirds where a recommendation to the contracting party is madewhere the Committee of Independent Experts has found that the Charterhas not been applied satisfactorily. At the request of the contracting party
concerned, the Committee of Ministers may decide, where the reportraises new issues, by a two-thirds majority of the contracting
tothe Charter, to consult the Governmental ~ o m m i t t e e . "At~ the same timeas the resolution is adopted or no later than four months after it has beentransmitted to the Committee of Ministers, the report will be transmittedlo'

Article 5 of the Protocol, amending article 28 of the Charter.

lo* See 34 ILM, 1995, p. 1453. It requires five ratificatioils to come into force: article 14.
lo9 Article 1.

'lo

11* Article 8.

11'

Article 2.
Article 9.

I L L Article 5.

REGIONAL PROTECTION OF HUMAN RIGHTS

337

to the Parliamentary Assembly and p ~ b l i s h e d . " The~ contracting party
concerned will be required to submit information on measures taken to
give effect to the recommendation of the Committee of Ministers in its
next report to the secretary-~enera1.l'~
The Charter was revised in 1996,
thus gathering together the rights contained in the 1961 instrument as
amended and the 1988 Protocol and adding new rights, such as the right toprotection against poverty and social exclusion, the right to housing, theright to protection in cases oftermination of employment and the right toprotection against sexual harassment in the workplace."6 Nevertheless,the relatively low rate of ratification of some ofthese instruments, coupledwith the slowness of some of the procedures, has added to pressure forfurther change. In particular, the possibilities of establishing a European
Court of Social Rights or a complaints procedure by individuals or governments or of integrating this system with the human rights convention
system have been raised.'"The European Convention for the Prevention of Torture andInhuman and Degrading Treatment or ~ u n i s h m e n t " ~This innovative Convention was signed in 1987 and came into force on 1
February 1989.'19 The purpose of the Convention is to enable the supervision ofpersons deprived oftheir liberty and, in particular, to prevent the
Article 8.
11' Article 10.
The European Social Charter (Revised) came into force in July 1999.
11' See e.g. Parliamentary Assembly Recoinmendation 1354 (1998).
See e.g. M. Elpans and R. Morgan, Combating Torture in Europe- Tlie I\'ork and Standard$of the Ezlropean Conlmittee for the Prevention of Torture, Strasbourg, 2001; J. Murdoch,'The Ubrk of the Council of Europe's Torture Committee: 5 EJIL, 1994, p. 220; M. Evansand It. Morgan, 'The European Torture Committee: Membership Issues: 5 EJIL, 1994,
p. 249; A. Cassese, 'A New Approach to Human Rights: The European Convention for
the Prevention of Torture: 83 AJIL, 1989, p. 128, and Cassese, 'Une Nouvelle Approchedes Droits de 1'Homme: La Convention Europeenne pour la Prevention de la Torture:
93 RGDIP, 1989, p. 6; M. Evans and R. Morgan, 'The European Convention on thePrevention of Torture: Operational Practice: 41 ICLQ, 1992, p. 590, and C. Jenkins, 'An
Appraisal of the Role and \%rk ofthe European Committee for the Prevention of Tortureand Inhuman or Degrading Treatment or Punishment: SOAS Working Paper No. 11,
1996.
'I9 All forty-four members ofthe Council ofEurope are parties. Since Serbia and Montenegro
joined the Council in April 2003 as the forty-fifth member, it is highly likely in due course
to become a party to the Convention. By Protocol No. 1 non-member states of the Councilof Europe are allowed to accede to the Convention at the invitation of the Committee of
Ministers, CPTIInf (93) 17. This came into force in March 2002.

338

I N T E R N A T I O N A L LAW

torture or other ill-treatment of such persons.'20 The Committee for thePrevention of Torture was established under the convention,121 placing,as it has noted, a 'proactive non-judicial mechanism alongside the existing
reactive judicial mechanisms of the European Commission and European
Court of Human ~ i g h t s ' . 'The
~ ~ Committee is given a fact-finding andreporting function. The Committee is empowered to carry out both visitsof a periodic nature and ad hoc visits to places of detention in order toexamine the treatment of persons deprived of their liberty with a view tostrengthening, if necessary, the protection of such persons from tortureand from inhuman or degrading treatment or punishment. Periodic visits
are carried out to all contracting- parties on a regular basis, while ad hoc
visits are organised when they appear to the Committee to be required in
the circumstance^.'^^ Thus periodic visits are planned in advance.124The
real innovation of the Convention, however, lies in the competence of theCommittee to visit places of detention when the situation so warrant^.'^'
When the Committee is not in session, the Bureau (i.e, the President andVice-President of the ~ o m m i t t e e ) may' ~ ~ in cases of urgency decide, on
the Committee's behalf, on the carrying out of such an ad hoc visit."'States parties agree to permit visits to any place within their jurisdiction
where persons are deprived of their liberty by a public authority,12s although in exceptional circumstances, the competent authorities of thestate concerned may make representations to the Committee against avisit at the time or place proposed on grounds of national defence, public-'" The Committee established under the Convention described its function in terms ofstrengthening 'the cordoil sanitaire that separates acceptable and unacceptable treatment
or behaviour': see First General Report, CPT (91) 3, para. 3.
See Resolution DH (89) 26 of the Committee of Ministers adopted on 19 September 1989
for the election of the members of the Committee. Note that under Protocol No. 2 to theConvention, the members of the Committee may be re-elected twice (rather than onceas specified in article 5). The Protocol came into force in March 2002.
"'See Fifth General Report, CPTIInf (95) 10, 1995, p. 3.
See articles 1 and 7. See also the Rules of Procedure of the Committee, 1989, CPTlInf(89) 2, especially Rules 29-35. The Rules have been amended on a number of occasions,the most recent being 12 March 1997.
Iz4 Note that in 2001, 17 visits took place, CPTIInf (2002) 15. By January 2003, 146 visits
had taken place, 98 periodic and 48 ad hoc: see www.cpt.coe.intlen1about.htm.
I z 5 A significant number of ad hocvisits have been made, e.g. to Turkey and Northern Irelandin the early years of operation of the Committee: see Murdoch, 'Work of the Council ofEurope's Torture Committee: p. 227. In 2001, for example, ad hoc visits were made to
Albania, Spain, Russia, Romania, Macedonia and Turkey, CPTIInf (2002) 15.
' 2 6 Rule 10 of the Rules of Procedure.
12' Rule 31 of the Rules of Procedure.
Article 2.

'""'

REGIONAL PROTECTION OF HUMAN RIGHTS

339

safety, serious disorder, the medical condition of a person or because
an urgent interrogation relating to a serious crime is in progress.129The
Committee may interview in private persons deprived of their liberty andmay communicate freely with any person whom it believes can supply
relevant information.I3O
After each visit, the Committee draws up a report for transmission
to the party concerned. That report will remain confidential"' unlessand until the state party concerned decides to make it p ~ b 1 i c . Wherel~~a state refuses to co-operate or to improve matters in the light of recommendations made, the Committee may decide, after the state has had an
opportunity to make known its views, by a two-thirds majority to issue a
public ~ t a t e m e n t . The' ~ ~ Committee makes an annual general report on
its activities to the Committee of Ministers, which is transmitted to theParliamentary Assembly and made p ~ b 1 i c . Thel ~ ~ relationship between
the approach taken by the Committee as revealed in its published reports
and the practice of the Commission and Court under the Human Rights
Convention is particularly interesting and appears to demonstrate that'"""rticle9(1).
Article 8.
13' As does the information gathered by the Committee in relation to a visit and its consultations with the contracting state concerned, article 11( 1).
'" See Rules 40-2. Most reports have been published together with the comments of contracting states upon them: see e.g. Report to the Government of Liechtenstein, CPTIInf(95) 7 and the Interim Report of the Government of Liechtenstein, CPTlInf (95) 8;
Report to the Government of Italy, CPTIInf (95) 1 and the Response of the Governmentof Italy, CPTiInf (95) 2; Report to the Government of the UK, CPTIInf (94) 17 and the
Response of the Government of the UK, CPTiInf (94) 18; Report to the Government of
Greece, CPTIInf (94) 20 and the Response of the Go~ernmentof Greece, CPTIInf (94)
21. The Fifth General Report of the Committee revealed that twenty-one of the thirtyselien visit reports had been published and that there was good reason to believe thatmost of the remaining sixteen would be published soon, CPTIInf (95) 10, p. 6. According to its 12th Report covering 2001, 91 of the 129 visit reports so far drawn up had
been placed in the public domain. On 6 February 2002, the Committee of Ministers of
the Council of Europe 'encourage[d] all Parties to the Convention to authorise publication, at the earliest opportunity, of all CPT visit reports and of their responses', CPTIInf(2002) 15.
'33 Article 10(2). See e.g. the public statements concerning police detention conditions in
Turkey, CPTIInf (93) 1, paras. 21 and 37, and the situation concerning conditions in a
detention facility in Chechnya, Russia, CPTIInf (2002) 15, Appendix 6. The latter statement was followed by a statement from the Chairperson of the Committee of Ministers
expressing concern at this situation, ibid.
'34 Article 12. This is subject to the rules of confidentiality in article 11. Note that theCommittee reports also include general substantive sections for the general guidance ofstates: see, for a collection of these, The CPT Standards, CPTIInflE (2002) 1.

340

I N T E R N A T I O N A L LAW

the Committee has adopted a more flexible attitude to issues relating todetention and ill-treatment.'35
The Council of Europe Framework Convention for the Protectionof National ~ i n o r i t i e s ' ~ ~The question of minorities is addressed in the European Convention on
Human Rights only in terms of one possible ground ofprohibited discrimination stipulated in article 14. However, the Council of Europe has been
dealingwith the issue of minorities in a more vigorous manner in more recent years. Resolution 192 (1988) ofthe Standing Conference of Local andRegional Authorities of Europe proposed the text of a European Charterfor Regional or Minority Languages, while Recommendation 1134 (1990)
of the Parliamentary Assembly on the Rights of Minorities called for either
a protocol to the European Convention or a special convention on this
topic.'37 The Committee of Ministers adopted on 22 June 1992 the Euro. ' ~ ~ this Charter,
pean Charter for Regional or Minority ~ a n g u a ~ e sUndera variety of measures to promote the use of regional or minority languages
is suggested, for example, in the fields of education, court proceedings,
public services, media, cultural facilities, economic and social life andtransfrontier exchanges. Implementation is by periodic reports to theSecretary-General of the Council of Europe in a form to be prescribed by
the Committee of ~ i n i s t e r s .Such' ~ ~ reports are examined by a committeeof experts,'40 composed of one member per contracting party, nominatedby the party concerned, appointed for a period of six years and eligible for
re-appointment.14' Bodies or associations legally established in a party
may draw the attention of the committee of experts to matters relating
to the undertakings entered into by that party and, on the basis of states'
reports, the committee will itself report to the Committee of Ministers.
The committee of experts' report shall be accompanied by the comments
which the parties have been requested to make and shall also contain the
proposals of the committee of experts to the Committee of Ministers for'j5 See e.g. Murdoch, 'Work of the Council of Europe's Torture Committee:

pp. 238 ff.
The Cotnlcil of Europe and Minorities, Strasbourg, 1994, and G. Pentasugglia, Minorities in International Latv, Strasbourg,
2002.
"'See also Recommendations 1177 (1992) and 1201 (1993).
It came into force in March 1998.
13' Article 15. See e.g. the reports by Germany, MIN-LANGIPR (2000) 1 and by the UK,
MIN-LANGIPR (2002) 5.
'" Article 16. See e.g. the report o n Germany, ECRML (2002) 1.
l4' Article 17.
' 3 6 See generally, P. Thornberry and M. Estebanez,"'

REGIONAL PROTECTION OF HUMAN RIGHTS

34l

the preparation of such recommendations of the latter body to one ormore of the parties as may be required.'" The Secretary-General shallmake a two-yearly detailed report to the Parliamentary Assembly on theapplication of the Charter.143The Committee of Ministers may invite any
non-member state of the Council of Europe to accede to the Charter.I4"
At the Vienna Meeting of Heads of State and Government of the Council of Europe in October 1993, it was decided that a legal instrument would
be drafted with regard to the protection of national minorities, and appendix I1 ofthe Vienna Declaration instructed the Committee of Ministers
to work upon both a framework convention on national minorities and adraft protocol on cultural rights complementing the European Conven' ~ ~Framework Convention for the Protection
tion on Human ~ i g h t s .Theof National Minorities was adopted by the Committee of Ministers on~
10 November 1994 and opened for signature on 1 February 1 9 9 5 . l ~The
Framework Convention underlines the right to equality before the lawof persons belonging to national minorities and prohibits discrimination
based on belonging to a national minority. Contracting parties to the
Framework Convention undertake to adopt, where necessary, adequate
measures to promote in all areas of economic, social, political and culturallife, full and effective equality between persons belonging to a national minority and to the majority.147The parties agree to promote the conditions
necessary for persons belonging to minorities to develop their culture andto preserve the essential elements of their identity, namely their religion,
language, traditions and cultural heritage.14' The collective expression ofindividual human rights of persons belonging to national minorities is
to be respected,'" while in areas inhabited by such persons traditionallySee e.g, the Committee of Ministers Reconlmendations to the Netherlands, RecChL(2001) 1 and to Germany, RecChL (2002) 1.
14'
Article 16. See the first biennial report in 2000, Doc. 8879, and the second in 2002, Doc.
9540.
'44 Article 20.
'45 See 14 HRLJ, 1993, pp. 373 ff.See also the Explanatory Report to the Framework Convention for the Protection of National Minorities, 1995. An ad hoc Committee for theProtection of National Minorities (CAHMIN) was established. Note that in ranuary 1996,
it was decided to suspend the work of the Committee on the drafting of an Additional
Protocol: see CAHMIN (95) 22 Addendum, 1996.
146 The Convention came into force on 1 February 1998.
Article 4.
148 Article 5. The parties also agree to refrain from assimilation policies and practices where
this is against the will of persons belonging to national minorities.
14' E.g. the freedoms of peaceful assembly, association, expression and thought, conscienceand religion, article 7. See also articles 8 and 9.
14'

'"

342

I N T E R N A T I O N A L LAW

or in substantial numbers, the parties shall endeavour to ensure as far as
possible the condition which would make it possible to use the minority
languages in relations between those persons and the administrative authorities.'jOBy article 15, the parties agree to refrain from measures whichalter the geographic proportions of the population in areas inhabited bypersons belonging to national minorities.
The implementation of this Framework Convention is to be monitored by the Committee of Ministers of the Council of ~ u r o p e ' " withthe assistance of an advisory committee of experts'52and on the basis ofperiodic reports from contracting states.lS3The Committee of Ministers
adopted rules on monitoring arrangements in 19971j4and the Advisory
Committee started operating in June 1998. The Committee examines state
reports,15' which are made public by the Council of Europe upon receipt
from the state party, and prepares an opinion on the measures taken bythat party.156The Committee may request additional information from astate party or other sources, including individuals and NGOs, but cannot
deal with individual complaints. It may hold meetings with governments,and has to do so if the government concerned so requests, and may holdmeetings with others than the governments concerned, during the courseof country visits. Having received the opinion of the Advisory Committee, the Committee of Ministers will take the final decisions (called
conclusions) concerning the adequacy of the measures taken by the stateparty. Where appropriate, it may also adopt recommendations in respectof the state party concerned. The conclusions and recommendations of
the Committee of Ministers shall be made public upon their adoption,
together with any comments the state party may have submitted in respect'" Upon request andwhere such a request corresponds to a real need, article 10(2).Similarly
with regardto the display oftraditional local names, street names andother topographicalindications intended for the public in the minority language, article 11(3), and withregard to adequate opportunities for being taught the minority language or for receiving
instruction in that language, article 14(2).
151 Article 24. Note that parties which are not members of the Council of Europe shallparticipate in the implementation mechanism according to modalities to be determined.
Accordingly, the Federal Republic of Yugoslavia became a party to the Convention on 11
May 2001 and its first report became due on 1 September 2002.
Article 26.
li' Article 25. The first reports became due on 1 February 1999.
'j4 Resolutioll (97) 10 and see H(1998)005 rev.11.
Guidelines for such reports have been issued by the Committee: see e.g.
ACFC/INF(2003)001 and ACFCIINF(1998)001.
See, for a list of opinions delivered as of January 2003, ACFC(2002)Opinions bil.

'""'

REGIONAL PROTECTION OF HUMAN RIGHTS

343

of the opinion delivered by the Advisory Committee. The opinion of theAdvisory Committee is as a rule made public together with the conclusionsof the Committee of Ministers.
While the range of rights accorded to members of minorities is clearly
greater than that envisaged in UN instrument^,'^^ its ambit is narrower
in being confined to 'national minorities'. The Framework Convention
itself provides no definition of that term since no consensus existed as
to its meaning,'58 although Recommendation 1201 (1993) adopted by
the Parliamentary Assembly and reaffirmed in Recommendation 1255
(1995) suggests that it refers to persons who reside on the territory of thestate concerned and are citizens of it; maintain longstanding, firm andlasting ties with that state; display distinctive ethnic, cultural, religious or
linguistic characteristics; are sufficiently representative, although smallerin numbers than the rest of the population of that state or of a regionof that state; and are motivated by a concern to preserve together thatwhich constitutes their common identity, including their culture, theirtraditions, their religion or their language. The narrowing of regard to
persons belonging to national minorities who are citizens of the state
concerned is perhaps a matter of c ~ n c e r n . ~The" issue of the protectionof minority rights is the subject of continuing discussion as to both theirnature and scope.lbO
The Council of Europe has adopted measures with regard to other areasof human rights activities of some relevance to the above issues.161

15'

See above, p. 273.

15s See the Explanatory Report to the Convention, which states that, 'It was decided to adopt

a pragmatic approach, based on the recognition that at this stage, it is impossible to arrive
at a definition capable of mustering general support of all Council of Europe member
States', H(1995)010, para. 12. The European Court of Human Rights has also referredto the problem of defining national minorities: see Gorzelik v. ~olancl,Judgment of 20
December 2001, para. 62.
See e.g. R. Higgins, 'Minority Rights Discrepancies and Divergencies Between the International Covenant and the Council of Europe System' in Liber Afflicorzrfflfor Henry
Schermers, The Hague, 1994.
160 See e.g. Parliamentary Assembly Recommendation Rec 1492 (2001) and the response of
the Advisory Committee dated 14 September 2001.
See e.g. the European Charter of Local Self-Government, 1985; the European Convention on the Participation of Foreigners in Public Life at Local Level, 1992; theEuropean Outline Co~lventionon Transfrontier Co-operation between Territorial Cominuilities or Authorities, 1980; the European Conventioil on the Legal Status of MigrantWorkers, 1977 and the Europeail Collveiltion on the Exercise of Children's Rights,
1995.

'"

344

I N T E R N A T I O N A L LAW

The European
The Treaty of Rome, 1957 established the European Economic Community and is not of itself a human rights treaty. However, the European
Court of Justice has held that subsumed within Community law are certain relevant unwritten general principles of law, emanating from several so~rces.'~"he Court noted in the Internationale Handelsgesellschaft
case'64 that 'respect for fundamental rights forms an integral part of thegeneral principles of law protected by the Court of ~ustice','~'while in
Nold v. ~ornrnission,'" the Court emphasised that measures incompatible with fundamental rights recognised and protected by the constitutionsof member states could not be upheld. It was also held that international
treaties for the protection of human rights on which member states havecollaborated, or of which they are signatories, could supply guidelines
which should be followed within the framework of Community law.16'
The European Convention on Human Rights is clearly the prime exampleof this and it has been referred to on several occasions by the ~ o u r t .In'~~
deed the question has also been raised and considered without resolution
See e.g. The European Union and H ~ ~ m aRightsn(eds. N. Neuwahl and A. Rosas),
Dordrecht, 1995; The EU urtd Human Rights (ed. P. Alston), Oxford, 1999; L. Betten
and N. Grief, EU Law and Ht~marlRights, London, 1998; S. MTeatherill and P. Beaumont,
EU Law, 3rd edn, London, 1999; T. Hartley, The Foundations of European Comrriunity
Law, 4th edn, Oxford, 1998, chapter 5; L. N. Brown and T. Kennedy, The Court ofJusticeof the European Communities, 4th edn, London, 1994, chapter 15; M. Mendelson, 'The
European Court of Justice and Human Rights: 1 Yearbook ofEuropean Law, 1981, p. 126,
and H. Schermers, 'The European Communities Bound by Fundamental Human Rights',
27 Common market Law Review, 1990, p. 249.
16' See e.g. Stauder v. City of Ulm [I9691 ECR 419; Internationale Handelsgesellschaft [I9701
ECli 1125; Nold v. EC Commission [I9741 ECR 491; Kirk [I9841 ECR 2689 and Johnston
v. Clzief Constable of the RUC [I9861 3 CMLR 240. See also the Joint Declaration by theEuropean Parliament, the Council and the Comlnission of 5 April 1979, Oflcial Journal,
1977, C10311; the Joint Declaration Against Racism and Xenophobia, 11 J ~ l n e1986,
OficinlJournal,1986, C15811 and the European Parliament's Declaration ofFundamenta1
Rights and Freedoms, 1989, EC Bulletin, 411989.
[1970] ECR 1125, 1134.
16' See also Re Accession of the European Community to tlze Convention for the Protection of
HumanRights and Ftlndnnzentul Freedoms 108 ILR, p. 225 and Kremzow v. Austria 119971
ECR 1-2629; 113 ILR, p. 264.
119741 ECR 491,507.
16' See e.g. Hauer v. Land Rlleinland-Pfaltz [I9791 ECR 3727 and SPUC v. Grogan [I9911
ECR 1-4685.
16* See e.g. Rutili 119751 ECR 1219; Valsabbia v. Contmission [I9801 ECR 907; Kirk [I9841
ECR 2689; Dow Chemical Ibkrica v. Coinmission [I9891 ECR 3165; ERT [I9911 ECR
1-2925 a n d X v. Comi?zissiolz 119921 ECR 11-2195 and 16 HRLJ, 1995, p. 54.
'62

REGIONAL PROTECTION OF HUMAN RIGHTS

345

as to whether the Community should itself accede to the European Convention on Human ~ i g h t s . ' ~ ~The Treaty on European Union (the Maastricht Treaty), 1992 amended
the Treaty of Rome and established the European Union, founded on
the European Communities supplemented by the policies and forms of
co-operation established under the 1992 Treaty. Article F(2) of Title I
noted that the Union 'shall respect fundamental rights', as guaranteedby the European Convention on Human Rights and as they result from
common constitutional traditions, 'as general principles of Community
law'. Under article K.l of Title VI, the member states agreed that asylum, immigration, drug, fraud, civil and criminal judicial co-operation,customs co-operation and certain forms of police co-operation would be
regarded as 'matters of common interest', which under article K.2 would
be dealt with in compliance with the European Convention on Human
Rights and the Convention relating to the Status of Refugees, 1951. The
provisions under Title V on the Common Foreign and Security Policy
may also impact upon human rights, so that, for instance, the European
Union sent its own human rights observers to Rwanda within thisframework.
The Treaty of Amsterdam, which came into force on 1 May 1999, inserted a new article 6 into the Treaty on European Union, which statedthat the European Union 'is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule oflaw, principles which are common to the Member States', and refers to theEuropean Convention on Human Rights. Member states violating theseprinciples in a 'serious and persistent' manner risk the suspension of certain of their rights deriving from the application of the Union Treaty.171
In addition, candidate countries have to respect these principles to join
the union.17' The European Union adopted the Charter of Fundamental
Rights in December 2000. This instrument, for example, notes the principle of the equality before the law of all people,17' prohibits discrimination
on any g r ~ u n d , "and~ requests the Union to protect cultural, religious
169 See e.g. 'Accession of the Con~munities
to the European Conveiltion on Human Rights',

EC Blllletin, Suppl. 2179. Note that the President of the European Court of Human
Rights suggested in January 2003 that the EU should accede to the Convention: seewc~~~~,echr.coe.intlenglEdocs/SpeechWildhaber.htm.
170 See J.Van Der Kaauw, 'European Union', 13 NQHR, 1995, p. 173.
l7'
17'Article 7. See also the amendments introduced by the Nice Treaty, 2001.
Article 49.
17'
Article 20.
17" Article 21.

346

I N T E R N A T I O N A L LAW

and linguistic diversity. Quite what the legal status of this Charter is17'
and how it relates to the Strasbourg system are open questions.176
The Union, more generally, seeks in some measure to pay regard tohuman rights as internationally defined, in its activities.177There appears
now to be a formal policy, for example, to include a human rights clausein co-operation agreements with third countries, which incorporates aprovision for the suspension of the agreement in case of a breach of theessential elements of the agreement in question, including respect forhuman rights.'78The European Parliament is also active in considerationof human rights i ~ s u e s . " ~The OSCE (Organisation for Security and Co-operation in ~ u r o p e ) ' ~ 'What was initially termed the 'Helsinki process', and which more formally
was referred to as the Conference on Security and Co-operation in Europe,developed out of the Final Act of the Helsinki meeting, which was signed
on 1 August 1975 after two years of discussions by the representatives ofNote the official UK vlew that it is a political declaration and not legally blndlng, 365 HC
Deb., col. 614W, 27 March 2001; UKMIL, 72 BYIL, 2001, p. 564.
However, article 52(3) of the Charter specifies that any rights that 'correspond' to thosealready articulated by the Human Rights Convention shall have the same meaning andscope. Note that the Convention on the Future of Europe, set up by the European Council
in Laeken in December 2001, is considering whether the EU should sign the European
Convention, as ~vellas examining the future status of the Charter of Fundamental
Rights. See draft published on 12 Tune 2003, Con V 79711103, Rev. 1.
See e.g. the Commission Report on the Implementation of Actions to Promote Human
Rights and Democracy, 1994, COM 9(5) 191, 1995.
178
See e.g. 13 NQHR, 1995, pp. 276 and 460.
See e.g, the Annual Reports of the Parliament on Respect for Human Rights in theEuropean Community, 14 HRLT, 1993, p. 292.
Ix0 See, for example, A. Bloed, 'Monitoring the CSCE Human Dimension: In Search of
its Effectiveness' in Monitoring H u ~ n u nRights in Europe (eds. Bloed et al.), Dordrecht,
1993, p. 45; The CSCE (ed. A. Bloed), Dordrecht, 1993; Human Rights, International
Laiv and the Helsinki Accord (ed. T. Buergenthal), Montclair, NJ, 1977; 1. hfaresca, To
Helsirtki - The CSCE 1973-75, Durham, 1987; T. Buergenthal, 'The Helsinki Process:
Birth of a Human Rights System' in Hunzan Rights irl the World Comnztrnity (eds. R.
Claude and B. Weston), 2nd edn, Philadelphia, 1992, p. 256; Essays on Human Rights in
the Helsinki Process (eds. A. Bloed and P. Van Dijk), Dordrecht, 1985; A. Bloed and P. Van
Dijk, The H ~ ~ r u aDinlension
nof the Helsirtki Process, Dordrecht, 1991; D. McGoldrick,'Human Rights Developments in the Helsinki Process', 39 ICLQ, 1990, p. 923, and McGoldrick, 'The Development of the Conference on Security and Co-operation in Europe- From Process to Institution' in Legal Visions of the h'eiv Europe (eds. B. S. Jackson and
D. McGoldrick), London, 1993, p. 135. See also the OSCE Handbook published regularly
and available at http:ll~vcc.cl~.osce.orgipublicatio~~slhai~dbooklfileslhandbook.pdf.

REGIONAL PROTECTION OF HUMAN RIGHTS

347

the then thirty-five participating states.lsl The ~ i n a l ~ c dealtt " ~ primarily
with questions of international security and state relations, and was seenas the method by which the post-war European territorial settlement
would be finally accepted. In the Western view, the Final Act constituteda political statement and accordingly could not be regarded as a binding
treaty. Nonetheless, the impact ofthe Final Act on developments in Europe
has far exceeded the impact of most legally binding treaties.
The Final Act set out in 'Basket I' a list of ten fundamental principles
dealing with relations between participating states, principle 7 of whichrefers to 'respect for human rights and fundamental freedoms, including
freedom of thought, conscience, religion and belief'. 'Basket 111' dealt
with Co-operation in Humanitarian and Other Fields and covered family
reunification, free flow of information and cultural and educational co0perati0n.l~~At the third 'follow-up' meeting at Vienna in January 1989, great
progress regarding human rights occurred,184primarily as a result of thechanged attitudes in the then USSR and in Eastern Europe, especially as
regards the extent of the detailed provisions and the recognition of concrete rights and duties. The part entitled 'Questions Relating to Security
in Europe' contained a Principles section, in which inter alia the parties confirmed their respect for human rights and their determination toguarantee their effective exercise. Paragraphs 13-27 contain in a detailed
and concrete manner a list of human rights principles to be respected,
ranging from due process rights to equality and non-discrimination andthe rights of religious communities, and from the rights of minorities tothe rights of refugees. The provision in which states agree to respect theright of their citizens to contribute actively, either individually or collectively, to the promotion and protection of human rights, constitutes animportant innovation of great practical significance, as does the commentthat states will respect the right of persons to observe and promote theimplementation of CSCE provisions.
The part entitled 'Co-operation in Humanitarian and Other Fields'
included an important section on Human Contacts in which the right toleave one's country and return thereto was reaffirmed. It was decided that
1.e. all the states of Western and Eastern Europe, except Albania, plus the United States
and Canada.
Is' For the text, see, for example, 14 ILM, 1975, p. 1292.
18' 'Basket 11' covered co-operation in the fields of ecoiloinics, science, technology and theenvironment.
l X 4 See the text of the Coilcluding Document in 10 HRLT, 1989, p. 270.
IS'

348

I N T E R N A T I O N A L LAW

all outstanding human contacts applications would be resolved within
six months and that thereafter there would be a series of regular reviews.
Family reunion issues were to be dealt with in as short a time as possible and in normal practice within one month. The parties committed
themselves to publishing all laws and statutory regulations concerning
movement by individuals within their territory and travel between states,
an issue that had caused a great deal of controversy, while the right ofmembers of religions to establish and maintain personal contacts witheach other in their own and other countries, inter alia through- travel andparticipation in religious events, was pr~claimed.''~In a further significant development, the Vienna Concluding Document contained a part entitled 'Human Dimension of the CSCE' in
which some implementation measures were provided for. The participating states decided to exchange information and to respond to requests for
information and to representations made to them by other participatingstates on questions relating to the human dimension ofthe CSCE. Bilateralmeetings would be held with other participating states that so request, inorder to examine such questions, while such questions could be brought
to the attention of other participating states through diplomatic channels
or raised at further 'follow-up' meetings or at meetings of the Conference
on the Human Dimension. The procedure is confidential.'"The Concluding Document of the Copenhagen meeting in 1990''~
constituted a further crucial stage in the development of the process. The
participating states proclaimed support for the principles of the rule oflaw, free and fair elections, democracy, pluralism and due process rights.
Paragraph 1 of Chapter 1 emphasised that the protection and promotionof human rights was one of the basic purposes of government. A varietyof specific rights, including the freedoms of expression, assembly, association, thought, conscience and religion, and the rights to leave one's
own country and return and to receive legal assistance, the rights of thelS"aragraphs 18 and 32.
la6 The mechanism was used over 100 times between 1989 and 1992: see Bloed and Van
Dijk, Human Dirnensiorl, p. 79, and McGoldrick, 'Development of the CSCE: p. 139. See
also H. Tretter, 'Human Rights in the Concluding Document of the Vienna Follow-up
Meeting of the Conference on Security and Co-operation in Europe of ranuary 15, 1989:
10 HRLI, 1989, p. 257; R. Brett, The Development of the H t ~ m a nDirr~ensionMachinery,
Esses University, 1992, and A. Bloed and P. Van Dijk, 'Supervisory Mechanisms for the
Human Dimension of the CSCE: Its Setting-up in Vienna, its Present Functioning and
its Possible Development towards a General Procedure for the Peaceful Settlement of
Disputes' in Bloed and Van Dijk, Human Dimension, p. 74.
l X 7 See 8 NQHR, 1990, p. 302 and Cm 1324 (1990).

REGIONAL PROTECTION OF HUMAN RIGHTS

349

child, the rights of national minorities and the prohibition of torture areproclaimed. Time-limits were imposed with regard to the Vienna Human
Dimension mechanism.
The Charter of Paris, adopted at the Summit of Heads of State andof Government in 1990,"~called for more regular consultations at ministerial and senior official level and marked an important stage in theinstitutionalisation of the process, with a Council of Foreign Ministers,a Committee of Senior Officials and a secretariat being established. The
section on Human Rights, Democracy and Rule of Law consisted of a listof human rights, including the right to effective remedies, full respect for
which constituted 'the bedrock' for the construction of 'the new Europe'.
The Moscow Human Dimension meeting of 199 1189described the Human
Dimension mechanism as an essential achievement of the CSCE process
and it was strengthened. The time-limits provided for at Copenhagenwere reduced1" and a resource list of experts was to be estab1ished,l9l
with three experts being appointed by each participating state in order
to allow for CSCE missions to be created to assist states requesting such
help in facilitating the resolution of a particular question or problem
related to the human dimension of the CSCE. The observations of themissions of experts together with the comments of the state concerned
were to be forwarded to CSCE states within three weeks of the submission of the observations to the state concerned and might be discussed
by the Committee of Senior Officials, who could consider follow-up
measures.192
By the time of the Helsinki Conference in 1992, the number of participating states had risen to f i f t y - t ~ o ,the
' ~ ~political climate in Europe having changed dramatically after the establishment of democratic regimes
in Eastern Europe, the ending of the Soviet Union and the rise of tensions
in Yugoslavia and other parts of Eastern Europe. The participating statesstrongly reaffirmed that Human Dimension commitments were matterslSS See 30 ILM, 1991, p. 190.
la9 See 30 ILM, 1991,p. 1670 and Cm 1771 (1991).

'" So that, for example, the written responses to requests for information were to occur
within ten days, and the bilateral meetings were to take place as a rule within one weekof the date of request, Section I(1).
19' The Council of Ministers of the CSCE subsequently decided that the Office of Democratic
Institutions and Human Rights (formerly the Office for Free Elections) would be theappropriate institution establishing the resource list.
A variety of missions have now been employed in, for example, Nagorno-Karabakh,
Georgia, Chechnya, Moldova and Croatia.
There are currently fifty-five participating states.

'"
'"

350

I N T E R N A T I O N A L LAW

of direct and legitimate concern to all participating states and did notbelong exclusively to the internal affairs of the states concerned, whilegross violations of such commitments posed a special threat to stability.
This reference of the link between human rights and international stability was to increase in the following years. At Helsinki, the CSCE wasdeclared to be a regional arrangement in the sense of Chapter VIII of theUN
The post of High Commissioner on National Minorities
was established in order to provide early warning and early action whereappropriate, concerning tensions relating to national minority issues thathave the potential to develop into a conflict within the CSCE area affecting peace, stability or relations between participating states.'95 The
High Commissioner was also mandated to collect relevant informationand make visits. Where the High Commissioner concludes that there is a
prima facie risk of potential conflict in such situations, an early warning is
to be issued, which will be promptly conveyed by the Chairman-in-Officeof the CSCE to the Committee of Senior Officials. The High Commissioner is able to make recommendations to participating states regarding
the treatment of national m i n ~ r i t i e s . In
' ~ ~addition, a number of general recommendations have been made with regard to ~ o m a " ' and othermatters.198
As far as the Human Dimension mechanism was concerned, the Conference decided to permit any participating state to provide information
on situations and cases that are the subject ofrequests for information, andit was also decided that in years in which a review conference was not being
held, a three-week meeting at expert level of participating states would
be organised in order to review implementation of the CSCE Human
Dimension commitments. In addition, it was provided that the Officeof Democratic Institutions and Human Rights would begin organising
Human Dimension seminars.'99
See further below, p. 1154.
Section I1 of the Helsinki Decisions. Note that the High Commissioner deals withsituations and not with individual complaints. See also Quiet Diplomacy in Action: The
OSCE High Commissioner on National Minorities (ed. W A. Kemp), The Hague, 2001.
'96 Fourteen have been made public thus far, see http://www.osce.org/hcnm/documents/
recommendations/index.php3.
19' See http://~w.osce.orgihcnm/documents/recommendations/roma/index.~~h~~3.
See e.g. the Hague Recommendation on Education Rights of National Minorities, 1996;
the Oslo Recommendations on Linguistic Rights of National Minorities, 1998 and theLund Recoinmendatioils on Effective Participation of National Minorities in Public Life,
1999.
Section VI of the Helsinki Decisions and http://wcvw.osce.orgiodihr/.
Iy4

""ee

'"
'"

REGIONAL PROTECTION OF HUMAN RIGHTS

3j1

The next major step in the process took place at Budapest at the endof 1994.~" The CSCE, in recognition of the institutional changes underway in recent years, changed its name to the OSCE (the Organisationfor Security and Co-operation in Europe) and took a number of steps
in the field of security and conflict management. The Conference emphasised that human rights, the rule of law and democratic institutions
represented a crucial contribution to conflict prevention and that theprotection of human rights constituted an 'essential foundation of democratic civil society',201and it was decided that Human Dimension issues
would be regularly dealt with by the Permanent
with the Office of Democratic Institutions and Human Rights (based in Warsaw)
acting as the main institution of the Human Dimension in an advisory
capacity to the organisation, with enhanced roles in election monitoring
and the dispatch of missions.203States were encouraged to use the Human
Dimension mechanism (now termed the Moscow Mechanism) and the
Chairman-in-Office was encouraged to inform the Permanent Councilof serious cases of alleged non-implementation of Human Dimension
commitments.204Thus, step by step over recent years, the Helsinki process has transformed itself into an institutional structure with a particular interest in describing and requiring the implementation of humanrights.205The OSCE has also established a number of missions in orderto help mitigate conflicts.206Although some overlay with the Councilof Europe system does exist, the fact that a large proportion of participating states are now members of the Council of Europe obviates themost acute dangers inherent in differing human rights systems. Nevertheless, as the Council of Europe system moves beyond the strictly legal
See 5 HRLJ, 1994, p. 449.
'"I
Section VIII of the Budapest Decisions.
This group is responsible for the dayto-day operations of the OSCE and its members are
the permanent representatives of the member states meeting weekly. It is based in Vienna.
'O'
Note also that the Monitoring Section within the ODIHR analyses human rights developments and compliance with Human Dimension commitments by participating states
and alerts the Chairman-in-Office to serious deteriorations in respect for human rights.
'04 See the regular Human Dimension Implementation Meeting reports, http://wcvcv.
osce.org/odihr/documents/reports/hdimi.
'05 An OSCE Advisory Panel on the Prevention of Torture was established in 1998: see
http://~~w.osce.org/odihr/democratization/tort~~re/,and a restructured Advisory Panelof Experts on Freedom of Religion or Belief was established in 2000. Note that as aconsequence of the Dayton Peace Agreement on Bosnia, 1995, it was agreed that the
OSCE would supervise elections in that country and would closely monitor human rights
throughout Bosnia and would appoint an international h~uillanrights Ombudsman: seeMC (5) Decll, 1995.
' 0 6 See a list of such missions at http://~~v.osce,org/publications/survey/.
'On
O
''

352

I N T E R N A T I O N A L LAW

enforcement stage and as the OSCE develops and strengthens its institutional mechanisms, some overlapping is inevitable. However, in general terms, the OSCE system remains politically based and expressed,
while the essence of the Council of Europe system remains juridicallyfocused.

The CIS Convention on Human Rights and Fundamental
The Commonwealth of Independent States, which links together the former Republics of the Soviet Union (with the exception of the three Baltic
states), adopted a Convention on Human Rights in May 1995. Under thisConvention, a standard range of rights is included, ranging from the rightto life, liberty and security of person, equality before the judicial system,
respect for private and family life, to freedom of religion, expression, assembly and the right to marry. The right to work is included (article 14)
as is the right to social security, the right to education and the right ofevery minor child to special protective measures (article 17). The rightof persons belonging to national minorities to express and develop theirethnic, linguistic, religious and cultural identity is protected (article 21),
while everyone has the right to take part in public affairs, including voting (article 29). It is intended that the implementation of the Convention
be monitored by the Human Rights Commission of the CIS (article 34).
Under Section I1 of the Regulations of the Human Rights Commission,
adopted in September 1993, states parties may raise human rights matters
falling within the Convention with other states parties and, if no satisfactory response is received within six months, the matter may be referredto the Commission. Domestic remedies need to be exhausted. Under Section I11 of the Regulations, the Commission may examine individual andcollective applications submitted by any person or non-governmental organisation. The Convention entered into force on 11 August 1998 upon
the third ratification.
Concerned with the level of protection afforded under this Convention (in particular the facts that the members of the Commission are
appointed representatives of member states and the Commission implements the instrument by means of recommendations) and the problemsof co-existence with the Council of Europe human rights system, the'07

See HIINF (95) 3, yp. 195 ff. See also the essays contained in 17 HRLJ, 1996 concerning
the CIS and h~unanrights.

REGIONAL PROTECTION OF HUMAN RIGHTS

353

Parliamentary Assembly of the Council of Europe adopted a resolution
in 2001 calling upon member or applicant states which are also membersof the CIS not to sign or ratify the CIS Convention. In addition, it
recommended that those that already had should issue a legally binding declaration stating that the European Convention procedures would
not be replaced or weakened through recourse to the CIS Convention
procedures.208

The Human Rights Chamber of Bosnia and Herzegovina
The Chamber was established under Annex 6 of the Dayton Peace Agreement, 1 9 9 5 . ~ 'It~ consists of fourteen members, eight of whom (not tobe citizens of Bosnia or of any neighbouring state) are appointed by the. ~ "Chamber conCommittee of Ministers of the Council of ~ u r o ~ e The
siders alleged or apparent violations of human rights as provided in theEuropean Convention on Human Rights, as well as alleged or apparent discrimination on any ground. Applications may be submitted by
all persons or groups of persons, including by way of referral from the
Ombudsman, claiming to be a victim of a violation or acting on behalf ofvictims who are deceased or missing.211There are a number of admissibility requirements which are similar to those of international human rights
bodies, including the exhaustion of effective remedies and the submissionof the application within six months of the date of any final decision. The
Chamber will normally sit in panels2'' of seven, four of whom are not tobe citizens of Bosnia or a neighbouring state. In such cases, the decision
may be reviewed by the full
The President may refer to theplenary Chamber any application not yet placed before a panel where aserious question is raised as to the interpretation of the Agreement or any
other international agreement therein referred to or where it appears that
"8

'09

'lo

'I1
'I2

'I3

Resolution 1249 (2001).See also recomnlendation 1519 (2001) stating that recourse to the
CIS Commission should not be regarded as another procedure ofinternational settlement
within the meaning of article 35(2)b of the European Convention.
As part of the Commission on Human Rights, the other part being the Ombudsman: see
article I1 of Annex 6 of the Dayton Agreement.
See resolutions (93)6 and (96)s. It should be noted that, at the time, Bosnia Tvas not ameimber of the Couilcil of Europe.
Article VIII.
Two panels were set up under Rule 26 of the Rules of Procedure 1996, as amended in 1998
and 2001.
Article X.

354

I N T E R N A T I O N A L LAW

a final decision should be taken without delay or where there appears to
be any other justified reason.214Decisions are final and binding"' The
work of the Chamber, primarily concerning housing-related issues216andproperty rights,217has been steadily increasing.218
The American Convention on Human ~ i ~ h t s ~ l ~The American Convention, which came into force in 1978, contains a
range of rights to be protected by the states parties.220The rights are fundamentally those protected by the European Convention, but with someRule29.
Article XI. The Chamber may also order provisional measures: see article X. These
hap-e been made particularly in housing-related cases where eviction has been
threatened: see Anizual Report 2000, p. 6, available also at h t t p : l l ~ ~ w w . p ~ d g . d e l-ujvr/hrchIOOannrep.htn~.
216 For example, the question of refugees seeking to regain possession of properties fromwhich they had fled and which were being used to house other persons: see e.g. Baz'iC et al.
v. Republika Srpska, Cases Nos. CHI981752 et al., Decisions of the Htliilan Rights Chamber
August-December 1999,2000, pp.149 ff.
*" For example, the question of restriction on withdrawal of foreign currency from bank accounts: see e.g. Poropat v. Bosnia, Cases Nos. CH/97142,52,105 and 108, and the questionof pensions from the Yugoslav army, seterbegovit v. Bosnia, Cases Nos. CHi981706, 740
and 776. Note in particular, however, the case of Boudellaa et a/. v. Bosnia and Herzegovina
and the Federation of Bosnia and Herzegovina, judgment of 11 October 2002, where ina case involving expulsion of Bosnian citizens of Algerian origin into the custody of the
US on terrorism charges, the chamber found that the respondents had violated relevant
human rights provisions.
'18 In 1996, 31 applications were received; 83 in 1997; 3,226 in 2000. By the end of 2000,
a total of 6,675 applications had been registered and a total of 669 separate decisions
reached; see Annual Report 2000, p. 3.
21'" See generally The Inter-American System of Human Rights (eds. D. J . Harris and S.
Livingstone), Oxford, 1998; T. Uuergenthal and 1).Shelton, Protecting H t ~ m a nRights in
the Americas, 4th edn, Strasbourg, 1995; D. Shelton, 'The Inter-American Human Rights
System' in Guide to International Hurr~anRigllts Practice (ed. H . Hannum), 3rd edn, Ne~v
York, 1999, p. 119; T. Buergenthal, 'The Inter-American System for the Protection of
Human Rights' in Hurr~anRights in Internatiorlal Lazv (ed. T. Meron), Oxford, 1984, p.
439; and T. Buergenthal and R. Norris, The Inter-American System, Dohhs Ferry, 5 vols.,
1983-4. See also J. Rehman, lnternational Htrmnrr Rights Law, London, 2003, chapter 8;
A. H. Robertson and J. G. Merrills, Hi~rnanRights in the World, 4th edn, London, 1996,
chapter 6; S. Davidson, The Inter-American Court of H i ~ n l u nRights, Aldershot, 1992;
S. Davidson, 'Remedies for Violations of the Anlerican Convention on Human Rights',
44 ICLQ, 1995, p. 405, and C. Grossman, 'Proposals to Strengthen the Inter-American
System of Protection of Human Rights', 32 German YIL, 1990, p. 264.
"O
The Convention currentlyhas twenty-four parties: see Annt~alReportoftheInter-American
Comiilissioil oil Hzlii~anRights 2000, \hrashington, 2001, and ibid., 2001, 2002.
"4'lS

REGIONAL PROTECTION OF HUMAN RIGHTS

355

interesting difference^.^^' For example, under article 4 the right to life isdeemed to start in general as from conception,222while the prohibition
on torture and inhuman or degrading treatment is more extensively expressed and is in the context of the right to have one's physical, mental
and moral integrity respected (article 5). In addition, articles 18 and 19of the American Convention protect the right to a name and the specificrights of the child, article 23 provides for a general right to participationin the context of public affairs and article 26 provides for the progressive
achievement of the economic, social and cultural rights contained in theCharter of the Organisation of American States, 1948, as amended by theProtocol of Buenos Aires, 1 9 6 7 . ~ ~ ~The Inter-American Commission on Human Rights was created in
1959 and its first Statute approved by the OAS Council in 1960. In 1971,
it was recognised as one of the principal organs of the ~ ~ ~ . ~ ~ " nitsd e r
original Statute, it had wide powers to promote the awareness and studyof human rights in America and to make recommendations to member
states. In 1965, the Statute was revised and the Commission's powers expanded to include inter alia the examination of communications. With
the entry into force of the 1969 Convention in 1978, the Commission's
position was further strengthened. The Commission has powers regarding all member states of the OAS, not just those that have ratified theConvention, and its Statute emphasises that the human rights protected
include those enumerated in both the Convention and the American Declaration of the Rights and Duties of an.^^' Article 44 of the Convention
provides that any person or group of persons or any non-governmental
entity legally recognised in one or more of the OAS states may lodge petitions with the Commission alleging a violation of the Convention by a
See e.g. J. Frowein, 'The European and the American Conventions on Human Rights - A
Comparison', 1 HRLJ, 1980, p. 44. See also the American Declaration of the Rights andDuties of Man, 1948.
777--- See e.g. 10 DR, 1977, p. 100.
223 The Charter of the OAS has also been amended by the Protocols of Cartagella de Indias,
1985; \.\kshington, 1992 and lManagua, 1993.
22"ee e.g. C. Medina, 'The Inter-American Conlmission on Human Rights and the InterAmerican Court of Human Rights: Reflections on a Joint Venture', 12 HRQ, 1990,
p. 439.
225 See generally the Basic Documents Pertuining to Human Rights in the bzter-Americun
System, Il'ashington, 1992. The competence of the Commission to hear petitions relates
to the rights in the Convention for states parties and to rights in the American Declaration
for states not parties to the Convention.
"I

356

I N T E R N A T I O N A L LAW

state party.226Contrary to the European Convention prior to its reformin Protocol XI, this right is automatic, whereas the right of inter-statecomplaint, again contrary to the European Convention, is under article
45 subject to a prior declaration recognising the competence of the Commission in this regard. The admissibility requirements in articles 46 and
47 are very broadly similar to those in the European Convention, as is theprocedure laid down in article 48 and the drawing-up of a report in cases
in which a friendly settlement has been achieved.227The Commission has
dealt with a number of issues in the individual application procedure.
During 1994, for example, just under 300 cases were opened and the total
number of cases being processed by early 1995 was 6 4 1 . By
~ ~2001,~ 718
applications had been re~eived."~The Commission has a wide-ranging competence to publicise humanrights matters by way of reports, studies, lectures and so forth. It may also
make recommendations to states on the adoption of progressive measures in favour of human rights and conduct on-site investigations withthe consent of the state in question.230It provides states generally withadvisory services in the human rights field and submits an annual reportto the OAS General Assembly. Many special reports have been publisheddealing with human rights in particular states, e.g. Argentina, Bolivia,
Chile, Colombia, Cuba, Dominican Republic, El Salvador, Guatemala,Haiti, Nicaragua, Paraguay, Surinam and ~ r u g u a y . ~The
" Commission
has also devoted attention to certain themes, such as disappearances,
torture, refugees and economic and social rights.232The Inter-American
Court of Human Rights has declared that the Commission also has theauthority to determine that any domestic law of a state party has violated""otethat this is far broader than the equivalent article 34 of the European Convention,~ ~ l l irequiresc l ~ that the applicant be a victim.
Articles 49-51. The Secretary-General of the OAS has played the role assigned in theEuropean Convention to the Committee of Ministers.
See Annual Report 1994, p. 39.
Annual Report 2001.
In 1994, for example, with regard to Guatemala, Haiti, the Bahamas, Ecuador and Jamaica,
see Annual Report 1994, pp. 21 ff., while in 2001 on-site visits were made to Panama andColombia, paras. 23 ff.
See Annual Report 1994, chapter IV, with regard to Colombia, Cuba, El Salvador andGuatemala.
See e.g. Annt~alReport 1992-3, pp, 539 ff. See also e.g. AGiRes.443, 1979, AGiRes.666,
1983, AGiRes.547, 1981, AGiRes.624, 1982 and AGiRes.644, 1983 (torture). In its Annual
Report2000, the Coinrnissioil reported on migrant workers and made recommendations
with regard to asylum and international crimes, and the promotion and protection of theinelltally ill, chapter VI.

"'

"'
"O

"'
*"

REGIONAL PROTECTION OF HUMAN RIGHTS

357

the obligations assumed in ratifying or acceding to theandthat the Commission may consequentially recommend that states repeal
or amend the law that is in violation of the Convention. For the Commission to be able to do this, the law may have come to its attention by
any means, regardless of whether or not that law is applied in any specificcase before the C o r n m i ~ s i o nIn. ~ the~ ~ light of this, the Commission in
1994, for example, made a thorough study of the contempt laws (leyes dedesacato), and concluded that many of these do not meet international
human rights standards. The Commission recommended that all member states of the OAS that have such laws should repeal or amend them tobring them into line with international instruments, and with the obligations acquired under those instruments, so as to harmonise their lawswith human rights treaties.235
In 1985, the OAS General Assembly adopted the Inter-American Convention to Prevent and Punish ~ o r t u r e while, ~ ~ ~in 1988 an Additional
Protocol on Economic, Social and Cultural Rights was
Underarticle 19 of this instrument, states parties agree to provide periodic reports on the progressive measures undertaken to ensure respect for therights set forth therein. Such reports will go to the Secretary-General of
the OAS, who will send them to the Inter-American Economic and Social Council and the Inter-American Council for Education, Science andCulture, with a copy to both the Inter-American Commission on Human Rights and to the specialised agencies of the inter-American system.
Violations by a state party of the rights to organise and join trades unions(article 8(a)) and to education (article 13) 'may give rise' to application of
the system of individual or inter-state petition under the Inter-American
Convention on Human Rights.

"' Some Powers of the Inter-American Cofnrnission on Human Rights, Advisory Opinion OC13/93 of 16 July 1993, Series A, No. 13, para. 26.
"4International Responsibility for Issuing and Applying Laws in Violation of the Convention,

Advisory Opinion OC-14/94 of 9 December 1994, Series A, No. 14, para. 39.
'j5 Annt~al
Report 1994, pp. 199 ff.
2'6 This entered into force in February 1987. Under the Convention, states parties agree toinform the Inter-American Commission of measures taken in application of the Convention, and the Commission 'will endeavour in its annual report to analyse the existing
situation in the member states of the Organisation of American States in regard to theprevention and elimination of torture', article 17.
237 This came into force in November 1999. Eleven states parties were required for the
Additional Protocol to come into force. See also L. Le Blanc, 'The Economic, Social andCultural Rights Protocol to the American Convention and its Background: 10 NQHR,
1992, 130.

358

I N T E R N A T I O N A L LAW

A Protocol on the Abolition of the Death Penalty was adopted on 8 June
1 9 9 0 and~ ~ a~new Convention on Forced Disappearances of Persons was
adopted on 9 June 1994.~"Under article 13 of this Convention, states parties agree that the processing of petitions or communications presented
to the Inter-American Commission alleging the forced disappearance of
persons will be subject to the procedures established under the InterAmerican Convention on Human Rights, the Statute and Regulationsof the Commission and the Statute and Rules of the Court. Particularreference is made to precautionary measures.240Under article 14, when
the Commission receives a petition or communication alleging forced
disappearance, its Executive Secretariat shall urgently and confidentiallyaddress the respective government and shall request that government toprovide as soon as possible information as to the whereabouts of the allegedly disappeared person. The OAS also adopted the Inter-American
Convention on the Prevention, Punishment and Eradication of Violence
Against Women in 1994, which entered into force in March the following year. Article 10 provides that states parties are to include in theirnational reports to the Inter-American Commission of Women information on measures taken in this area, while under article 11, both states
parties and the Commission ofWomen may request ofthe Inter-American
Court advisory opinions on the interpretations of this Convention. Article 12 provides a procedure whereby any person, group of persons or any"' This is not yet in force. See e.g. C. Cerna, 'US Death Penalty Tested Before the Inter"9"'American Commission on Human Rights', 10 NQHR, 1992, p. 155.
This entered into force in March 1996.
Article 63(2) of the Convention states that in cases of extreme gravity and urgency, andwhen necessary to avoid irreparable damage to persons, the Court shall adopt such provisional measures as it deems pertinent in matters it has under consideration. With respect
to a case not pet submitted to the Court, it may act at the request of the Commission.
Article 19(c) of the Statute of the Commission provides that the Commission has thepower to request the Court to take such provisional measures as it considers appropriate
in serious and urgent cases which have not yet been submitted to it for consideration,~7heneverthis becomes necessary to prevent irreparable injury to persons. Under article
29 of the Regulations of the Commission, the Commission may on its own initiative orat the request of a party take any action it considers necessary for the discharge of its
functions. In particular, in urgent cases, when it becomes necessary to avoid irreparable
damage to persons, the Commission may request that provisional measures be taken
to avoid irreparable damage in cases where the denounced facts are true. Article 24 of
the Rules of Procedure of the Inter-American Court provides that at any stage of theproceeding involving cases of extreme gra\ity and urgency and when necessary to avoid
irreparable damage to persons, the Court may, at the request of a party or on its own
motion, order whatever provisional measures it deems appropriate, pursuant to article
63(2) of the Convention.

REGIONAL PROTECTION OF HUMAN RIGHTS

359

non-governmental entitylegally recognised in one or more member statesof the OAS may lodge petitions with the Inter-American Commission on
Human Rights alleging violations of the duties of states under article 7
to pursue without delay and by all appropriate means policies to prevent,punish and eradicate violence against women.24' The question of indigenous peoples has also been addressed and on 18 September 1995, theInter-American Commission adopted a Draft Declaration on the Rights
of Indigenous
The Commission itself consists of seven members elected in a personal
capacity by the OAS General Assembly for four-year terms.243The Commission may indicate precautionary measures as provided for in article
25 of the Commission's Rules of Procedure. This grants the Commission
the power in serious and urgent cases, and whenever necessary according
to the information available, either on its own initiative or upon request
by a party, to request that the state concerned adopt precautionary measures to prevent irreparable harm to person^.^" Where in the case of
petitions received, a friendly settlement has not been achieved,"' thenunder article 50 a report will be drawn up, together with such proposals
and recommendations as are seen fit, and transmitted to the parties. A
three-month period is then available during which the Commission or thestate concerned (but not the individual concerned) may go to the InterAmerican Court of Human ~ i g h t sThe
. ~ Court~ ~ consists of seven judges
serving in an individual capacity and elected by an absolute majority ofthe states parties to the Convention in the OAS General Assembly forsix-year terms.24i The jurisdiction of the Court is subject to a prior declaration under article 62. Article 63(2) of the Convention provides that,'41

Note also the Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities, 1999. This came into force in September 2001.
'42 OEAISer. LIVIII.90; Doc.9, rev.l, 1995. For further discussions on the Draft Declaration,
see e.g. GTIDADINldoc.1199 rev.2,2000; Report ofthe Rapportem oftheM7orking Group,
GTIDADINldoc.83102, 2002 and the resolution of the OAS General Assembly, AGIRES.
1780 (XXXI-OIOl), 2001.
243 See articles 34-8 of the Convention.
244 See, for recent examples, Annual Report 2001, chapter I11 C. I.
245 See, for examples of friendly settlement procedures, Arirlual Report2001, chapter 111C. 4.
Article 51. If this does not happen and the matter is not settled with the state concerned,
the Commission by a majority vote may set forth its own opinion and conclusions on thematter, which may be published. See, for example, Annual Report 1983-4, pp. 23-75.
247 Articles 52-4. See also Davidson, Inter-American Court; C. Cerna, 'The Structure andFunctioning of the Inter-American Court of Human Rights (19'79-1992): 63 BYIL, 1992,
p. 135, and L. E. Frost, 'The Evolution of the Inter-American Court of Human Rights', 14
HRQ, 1992, p. 171.

'"

360

I N T E R N A T I O N A L LAW

in cases of extreme gravity and urgency, and when necessary to avoid
irreparable damage to persons, the Court, in matters not yet submitted
to it, may adopt such provisional measures as it deems pertinent at therequest of the Commission. This power has been used on a number ofoccasions.2d8
Under article 64, the Court also possesses an advisory jurisdiction withregard to the interpretation of the American Convention and other conventions concerning the protection of human rights in the American
states. The Court has dealt with a variety of important issues by way ofadvisory opinions. In Definition of Other Treaties Subject to the Interpretation of the Inter-American
the Court took the view that the objectof the Convention was to integrate the regional and universal systems ofhuman rights protection and that, therefore, any human rights treaty towhich American states were parties could be the subject of an advisory
opinion. In T h e Effect of ~ e s e r v a t i o n s the, ~ ~Court~
stressed that humanrights treaties involve the establishment of legal orders within which obligations are created towards all individuals within their jurisdiction andconcluded that an instrument of ratification of adherence containing areservation compatible with the object and purpose of the Convention
does not require acceptance by the other states parties and the instrument thus enters into force as of the moment of deposit.251In a mannerreminiscent of and clearly influenced by the European Court of Human
Rights, the Inter-American Court stated that human rights treaties weredifferent in nature from traditional multilateral treaties, since they focused not upon the reciprocal exchange of rights for the mutual benefit of
the contracting states, but rather upon the protection of the basic rights
of individuals. The obligations were erga omnes, rather than with regard
to particular other states.252
In an important discussion of freedom of expression in the Licensingof Journalists case,253the Court advised that the compulsory licensing of'" The first time was in January 1988, against Honduras, following the killing of a person
due to testify before it and concerns expressed about the safety of other ~vitnesses,HIInf.
(88) 1, p. 64. See also the provisional measures adopted by the Court against Peru, insimilar circun~stances,in August 1990, 11 HRLJ, 1990, p. 257, and the Alenzan Lacayo v.
Nicarag~iacase, Series E, Order of 2 February 1996; the ~ l v a r e etz al. v. Colotnbia case,
Series E , Order of 22 J~llp1997, and the Constitutional Cotirt case, Series E , Order of 14
August 2000. See also Hilaire and Otllers v. Trinidad and Tobago, Judgment of 21 June2002.
'49 22 ILM, 1983, p. 51; 67 ILR, p. 594.
'jO 22 ILM, 1983, p.33; 67 ILR, p. 559.
2"
Para. 37. See article 74 of the Convention.
'j2 Ibid., para. 29. See also below, p. 843.
2j' 7 HRLJ, 1986, p. 74; 75 ILR, p. 31.

REGIONAL PROTECTION OF HUMAN RIGHTS

36l

journalists was incompatible with article 13, the freedom of expression
provision in the Convention, if it denied any person access to the fulluse of the media as a means of expressing opinions. The Court emphasised that freedom of expression could only be restricted on the basisof 'compelling governmental interest' and that the restriction must be'closely tailored to the accomplishment of the legitimate governmental
objective necessitating it'.254In the Habeas Corpus case,255the Court declared that the writ of habeas corpus was a non-suspendable 'judicial
guarantee' for the protection of rights from which no derogation was
permitted under the Convention under article 27. Reference was madeto the 'inseparable bond between the principle of legality, democratic
institutions and the rule of law: The Court also emphasised that only
democratic governments could avail themselves of the right to declarea state of emergency and then only under closely circumscribed conditions. The Court has also addressed the issue of the relationship between
itself and the American Declaration of the Rights and Duties of Man,
1948 in the Interpretation of the American Declaratiotz case.256In an opinion likely to be of significance in view of the fact that, for example, theUSA is not a party to the Convention but, as a member of the OAS, hassigned the Declaration, the Court stressed that in interpreting the Declaration regard had to be had to the current state of the Inter-Americansystem and that, by a process of authoritative interpretation, the member states of the OAS have agreed that the Declaration contains and defines the human rights norms referred to in the OAS Charter.25' Since
the Charter was a treaty, the Court could, therefore, interpret the Declaration under article 64.258This rather ingenious argument is likely toopen the door to a variety of advisory opinions on a range of important
issues.
In the Right to Information on Consular Assistance opinion requestedby ~ e x i c o , the~ ' ~Court declared that article 36 of the Vienna Convention
on Consular Relations, 1963, providing for the right to consular assistance of detained foreign nationals,260was part of international human
2'4

Ibid., para. 45. See also the Sunday Tirnes case, European Court of Human Rights, Series
A , vol. 30, 1979.

"' 9 HRLJ, 1988, p. 94.

li6
28 ILhl, 1989,

p. 378.

Ibid., pp. 388-9. See also T. Buergenthal, 'The Revised O A S Charter and the Protection

lS7

258
25'

of Human Rights: 69 ATIL, 1975, p. 828.
The problem was that the Declaration clearly was not a treaty and article 6 4 provides foradvisory opinions regarding the Convention itself and 'other treaties'.
Series A 16, OC-16199, 1999.
See further below, chapter 13, p. 688.

362

I N T E R N A T I O N A L LAW

rights law and that the state must comply with its duty to inform thedetainee of the rights that the article confers upon him at the time of
his arrest or at least before he makes his first statement before the authorities. Further, it was held that the enforceability of the right was not
subject to the protests of the sending state and that the failure to observea detained foreign national's right to information, recognised in article
36(l)(b)of the Vienna Convention, was prejudicial to the due process oflaw. In such circumstances, imposition of the death penalty constituted
a violation of the right not to be deprived of life 'arbitrarily', as stipulated in the relevant provisions of the human rights treaties,261involving
therefore the international responsibility of the state and the duty to makereparation.
The exercise of the Court's contentious jurisdiction was, however, lessimmediately successful. In the Gallardo case,262the Court remitted theclaim to the Commission declaring it inadmissible, noting that a state
could not dispense with the processing of the case by the Commission,ez~
Godinez~ ~ Cruz264cases the Court
while in thevelasquez ~ o d r i ~ u andin 'disappearance' situations found that Honduras had violated the Con~ e n t i o nIn. ~the~ ~former case, it was emphasised that states had a legal
responsibility to prevent human rights violations and to use the means attheir disposal to investigate and punish such violations. Where this did
not happen, the state concerned had failed in its duty to ensure the full andfree exercise of these rights within the jurisdiction.26GIn Loayza Tamayo
v. Peru, the Court held Peru responsible for a number of breaches of theConvention concerned with the detention and torture of the applicant
and for the absence of a fair
In Churnbipurna Aguirre v. Peru,
the Barrios Altos case, the Court tackled the issue of domestic amnesty
laws and held that the Peruvian amnesty laws in question were incompatible with the Inter-American Convention and thus void of any legal
effect.268
1.e. article 4 of the Inter-American Convention o n Human Rights and article 6 of theInternational Covenant o n Civil and Political Rights.
262 20 ILM, 1981, p. 1424; 67 ILR, p. 578.
2b4 HIInf (90) 1, p. 80.
9 HRLI, 1988, p. 212.
265 Note also the award of compensation to the victims in both of these cases, ibid.,
pp. 80-1.
266 At paras. 174-6. See also Castillo Paez v. Peru, Series C, No. 34, 1997; 116 ILR, p. 451.
'67 Series C, No. 33, 1997; 116 ILR, p. 338.
Judgment of 14 March 2001,41 ILM, 2002, p. 93.
16'

REGIONAL PROTECTION OF HUMAN RIGHTS

3 63

The Banjul Charter on Human and Peoples' ~ i ~ h t s ' ~ 'This Charter was adoptedbythe Organisation ofAfrican Unityin 1981 andcame into force in 1986. Currently all members of the OAU are parties."'
The Charter contains a wide range of rights, including in addition to
the traditional civil and political rights, economic, social and culturalrights and various peoples' rights. In this latter category are specificallymentioned the rights to self-determination, development and a generally
satisfactory e n ~ i r o n m e n t . The~ ~ ' reference to the latter two concepts is
unusual in human rights instruments and it remains to be seen both howthey will be interpreted and how they will be implemented.
One question that is immediately posed with respect to the notion of'peoples' rights' is to ascertain the definition of a people. If experience withthe definition of self-determination in the context of the United Nations
is any guide,"l and bearing in mind the extreme sensitivity which African
states have manifested with regard to the stability of the existing colonial'" See e.g. U. 0 . Umozurike, The African Charter on Htrinan and Peoples'Rights, The Hague,
1997; R. Murray, The African Coinmission on Htunan and Peoples' Rights, London, 2000;
The African Charter on Htnnan and Peoples' Rights (eds. M . Evans and R. Murray), Cambridge, 2002; Rehinan, International Human Rights Law, chapter 9; Internatiorial Human Rights in Context (eds. H. J. Steiner and P. Alston), 2nd edn, Oxford 2000, p. 920;
E. Ank~un~ah,
The African Conlmission on Human and Peoples' Rights, Dordrecht, 1996;
R. Gittleman, 'The African Charter on Hunlan and Peoples' Rights: A Legal Analysis', 22ira. JIL, 1981, p. 667; Robertson and Merrills, Human Rights in the World, p. 242; U. 0.
Unlozurike, 'The Protection of Human Rights under the Banjul (African) Charter on
Human and Peoples' Rights: 1 African Journal ofInternationa1 Law, 1988, p. 65; A. Bello,'The African Charter on Human and Peoples' Rights: 194 HR, 1985, p. 5; S. Neff, 'Human
Rights in Africa',33 ICLQ, 1984,p. 331; U. 0 . Umozurike, 'The AfricanCharter on Humanand Peoples' Rights', 77 AJIL, 1983, p. 902; B. Ramcharan, 'The Travaux Preparatoiresof the African Commission on Human Rights: HRLJ, 1992, p. 307; T17. Benedek, 'The
African Charter and Commission on Human and Peoples' Rights: How to Make It More
Effective: 14 NQHR, 1993, p. 25, and C. Flinterman and E. Ankumeh, 'The African
Charter on Human and Peoples' Rights' in Hannum, Guide to Iriternational Human
Rights Practice, p. 163. See also F. Ouguergouz, 'La Commission Africaine des Droits de
I'Homme et des Peuples', AFDI, 1989, p. 557; K. Mbaye, Les Droits de 1'Hornmc en Afrique,
Paris, 1992, and M. Hamalengwa, C. Flinterman and E. Dankwa, The Ir~ternationalLaw
of Human Rights in Africa - Basic Documents and Annotated Bibliography, Dordrecht,
1988.
270 See Fifteenth Annual Activity Report of the African Commission on Human and Peoples' Rights 2001-2001, para. 2 and http://~~w.achpr.org/15t1~AnnualActivity~ReportAHG.pdf. Note that the OAU has recently changed its name to the African Union:
see Constitutive Act of the African Union 2000 in force from 2001, http://www.africa-

uilion.org/en/docs/CONSTITUTI\'EO/o20ACT.pdf.
See articles 19-22.

"' See above, chapter 5, p. 225.

364

I N T E R N A T I O N A L LAW

borders,273then the principle is likely to be interpreted in the sense of
independent states. This was confirmed in the Katangese Peoples' Congressv. zaire,"" where the Commission declared that Katanga was obliged
to exercise a variant of self-determination that was compatible with thesovereignty and territorial integrity of Zaire.
The African Charter is the first human rights convention that details theduties of the individual to the state, society and family.275Included are theduties to avoid compromising the security of the state and to preserve andstrengthen social and national solidarity and independence. It remains tobe seen whether this distinctive approach brings with it more problems
than advantages.
The Charter set up the African Commission on Human and Peoples'
Rights, consisting of eleven persons appointed by the Conference of the
Heads of State and Government of the OAU for six-year renewable terms,
to implement the Charter. The Secretary to the Commission is appointed
by the Secretary-General of the Organisation of African Unity. The Commission has important educational and promotional re~ponsibilities,~"
including undertaking studies, organising conferences, disseminating information and making recommendations to governments. This is quite
unlike the European Commission as it used to be prior to Protocol XI,
but rather more similar to the Inter-American Commission. The Commission may hear as of right inter-state complaints.277Other, non-state,communications may be sent to the Commission and the terminology
used is far more flexible than is the case in the other regional humanrights systems.278Where it appears that one or more communications
apparently relates to special cases which reveal the existence of a series ofserious or massive violations of rights, the Commission will draw the attention ofthe Assembly of Heads of State and Government to these special
cases. The Commission may then be asked to conduct an in-depth studyof these cases and make a factual report, accompanied by its finding and"' See e.g. M. N. Shaw, Title to Territory in Africa, Oxford, 1986.
2'4

Case No. 75192: see 13 NQHR, 1995, p. 478.

"' See articles 27-9.

See article45 and Rule 87 ofthe Rules of Procedure 1995. See also A. Bello, 'The Mandate ofoflnternatiorlal
the African Comnlission on Human and Peoples' Rights', 1 African Jot~rr~alLaw, 1988, p. 31.
277 Articles 47-54. See also Rules 88 ff. of the Rules of Procedure.
See article 55. There are a number of admissibility requirements: see article 56. ForalReport of the African
recent decisions on comn~unications,see Fifteenth d n n ~ ~Activity
Corr~rnissionon Human and Peoples' Rights 2001-2001, Annex 5.
2'6

REGIONAL PROTECTION OF HUMAN RIGHTS

365

recommendation^.^^^ The Commission is able to suggest provisional measures where appropriate.280The Commission adopted Rules of Procedurein 1988, which were amendedin 1 9 9 5 . ~In~ 'addition, there is an obligation
upon states parties to produce reports every two years upon the measurestaken to implement the rights under the
The Commission
was given authority by the OAU to study the reports and make observations upon them and has indeed adopted guidelines. However, to date, it
is fair to conclude that the reporting procedure has encountered serious
problems, not least in that many states have failed to submit reports or
adequate report^,^" while the financial resources difficulties faced by theCommission have been significant. No provision was made for a Courtin the Charter, but a Protocol on the Establishment of an African Courtof Human and Peoples' Rights was signed in 1 9 9 8 . ~Under~ ~ this Protocol, the Court has advisory, conciliatory and contentious jurisdiction.
The African Commission, states parties and African intergovernmentalorganisations have automatic access to the ~ o u r t , ~but
" not individuals or non-governmental organisations, whose access depends upon thestate concerned having made a declaration accepting the jurisdiction of
the Court to hear relevant application^.^'^The Arab Charter o n Human ~ i ~ h t s ~ "This Charter, which appears not to be in force as yet, was adopted by theCouncil of the League of Arab States on 15 September 1994 and affirms
Article 58(1) and (2). Further, a case of emergency duly noted by the Commission shallbe submitted to the Chairman of the Assembly of Heads of State and Government who
may request an in-depth study, article 58(3).
Rule 111.
See 40 The Review, International Commission of Jtlrists, 1988, p. 26.
Article 62. See also Rules 81-6.
See e.g. G. Oberleitner and C. T17elch,'Africa:15th Session African Commission on Humanand Peoples' Rights', 12 NQHR, 1994, p. 333; Rehman, bzterlzational Human Rights Law,
p. 255, and M. Vans, T. Ige and R. Murray, 'The Reporting Mechanism of the African
Charter on Human and Peoples' Rights' in The African Charter on Hurnan and Peoples'
Rights (eds. M. Evans and R. Murray), Cambridge, 2002, p. 36.
284 AS of September 2002, there were thirty-six signatures and six ratifications (out of fiftythree members of the African Union). Fifteen ratifications are required.
ls6 Article 34(6).
Article 5.
2"
See e.g. R. K. M. Smith, Textbook on Iriternational Hurnan Rights, Oxford, 2002,lalso
p. 87, and l ~ t t p : / / w ~ w l . u m n . e d u i h u m a n r t s / i n s t r e e i a a r t e r h t mSee
Robertson and Merrills, Human Rights in the World, p. 238, and A. A. A. Naim,'Human Rights in the Arab World: A Legal Perspective', 23 HRQ, 2001, p. 70.
'79

""

'"
"'
'"

366

I N T E R N A T I O N A L LAW

the principles contained in the UN Charter, the Universal Declaration of
Human Rights, the International Covenants on Human Rights and the
Cairo Declaration on Human Rights in slam.^^^ A number of traditional
human rights are provided for, including the right to liberty and securityof persons, equality of persons before the law, protection of persons from
torture, the right to own private property, freedom to practise religious
observance and freedom of peaceful assembly and association.289The
Charter also provides for the election of a seven-person Committee ofExperts on Human Rights to consider states' reports.'90
Suggestions for further reading
The African Clzarter on Human and Peoples' Rights (eds. M . Evans a n d R. Murray),Cambridge, 2002

T.Buergenthal a n d D. Shelton, Protectiizg Huiizan Rights in the Ainericas, 4th edn,
Strasbourg, 1995

D. J. Harris, M. O'Boyle a n d C. Warbrick, Law of theEuropean Convention on H~irnan
Rights, London, 1995
Jacobs and White: European Convention on Human Rights (eds. C . Ovey a n d R. C. A.
White), 3rd edn, Oxford, 2002"'

Adopted in 1990 by the Nineteenth Islamic Conference of Foreign Ministers. This Declaration emphasises that all rights and freedoms provided for are subject to Islamic Shari'ah(article 24), which is also 'the only source of reference for the explanation or clarificationof any of the articles in the Declaration' (article 25).
Articles 8, 9, 13, 25, 27 and 28.
290 Articles 40 and 41.

Recognition

International society is not an unchanging entity, but is subject to the ebb
and flow of political life.' New states are created and old units fall away.
New governments come into being within states in a manner contrary
to declared constitutions whether or not accompanied by force. Insurgencies occur and belligerent administrations are established in areas ofterritory hitherto controlled by the legitimate government. Each of these
events creates new facts and the question that recognition is concernedwith revolves around the extent to which legal effects should flow fromsuch occurrences. Each state will have to decide whether or not to recognise the particular eventuality and the kind of legal entity it should be
accepted as.
Recognition involves consequences both on the international plane andwithin municipal law. If an entity is recognised as a state in, for example,
the United Kingdom, it will entail the consideration of rights and duties
that would not otherwise be relevant. There are privileges permitted toa foreign state before the municipal courts that would not be allowed toother institutions or persons.

' See generally, e.g. Oppenheirn's Internatiorlal Latv (eds. R. 'I.Jennings and A. D. Watts), 9thedn, London, 1992; H. Lauterpacht, Recognition in International Law, Cambridge, 1947; T.
C. Chen, The International Law ofRecognition, London, 1951; J. Charpentier, La Reconnaissance Internat~onaleet 1'Evolution du Droit des Gens, Paris, 1956; T. L. Galloway, Recognising
Foreign Governfnents,Washington, 1978; J. Verhoeven, La Reconnaissance Internationale
duns la Pratique Contemporaine, Paris, 1975 and Verhoeven, 'La Reconnaissance Internationale, Declin ou Renou\~eau?\AFDI, 1993, p. 7; J. Dugard, Recognition and the United~Vations,Cambridge, 1987; H. Blix, 'Contemporary Aspects of Recognition', 130 HR, 197011, p. 587; J. Salmon, 'Reconnaissance d'Etat: 25 Revue Belge de Droit hiternational, 1992,
p. 226; S. Talmon, Recognition in Irlternational Law: A Bibliograplly, The Hague, 2000; T. D.
Grant, The Recognition of States: Latv and Practice in Debate and Evolt~tion,London, 1999,
and Third US Restaterrlent on Foreign Relations Law, MTashington, 1987, vol. I, pp. 77 ff.
See also Nguyen Quoc Dinh, P. Daillier and A. Pellet, Droif International P~lblic,7th edn,y , International Public, 4th edn, Paris, 1998, pp.
Paris, 2002, pp. 556 ff.; P. M. D u p ~ ~Droit
Schachter and H. Smit, International Law, Cases and
85 ff., and L. Henkin, R. C. Pugh, 0.
Materials, 3rd edn, St Paul, 1993, pp. 244 ff.

368

I N T E R N A T I O N A L LAW

It is stating the obvious to point to the very strong political influences that bear upon this topic.2 In more cases than not the decision
whether or not to recognise will depend more upon political considerations than exclusively legal factors. Recognition is not merely applying
the relevant legal consequences to a factual situation, for sometimes astate will not want such consequences to follow, either internationally ordomestically.
To give one example, the United States refused for many years to recognise either the People's Republic of China or North Korea, not because
it did not accept the obvious fact that these authorities exercised effective control over their respective territories, but rather because it did notwish the legal effects of recognition to come into pera at ion.^ 1t is purely
a political judgment, although it has been clothed in legal terminology.
In addition, there are a variety of options open as to what an entity may
be recognised as. Such an entity may, for example, be recognised as afull sovereign state, or as the effective authority within a specific areaor as a subordinate authority to another state.4 Recognition is a statement by an international legal person as to the status in internationallaw of another real or alleged international legal person or of the validity of a particular factual situation. Once recognition has occurred, the
new situation is deemed opposable to the recognising state, that is thepertinent legal consequences will flow. As such, recognition constitutes
participation in the international legal process generally while also being important within the context of bilateral relations and, of course,
domestically.
Recognition of states

There are basically two theories as to the nature of recognition. The constitutive theory maintains that it is the act of recognition by other statesthat creates a new state and endows it with legal personality and not theprocess by which it actually obtained independence. Thus, new states are' See e.g. H . A. Smith, Great Britain artd tlte Law of Nations, London, 1932, vol. I ,pp. 77-80.
' See e.g. M . Kaplan and N . Katzenbach, The Political Fourldations oflnternational Law, New
York, 1961, p. 109.
"ee e.g. Carl Zeiss Stqtung v. Rayner and Keeler [I9671 AC 853; 43 ILR, p. 23, where the
Court took the view that the Gerinan Democratic Republic was a subordinate agency o f
the USSR, and the recognition o f the Ciskei as a subordinate body of South Africa, Gtlr
Corporation v. P n s t Bank ofAfiica Ltd [I9861 3 All ER 449; 75 ILR, p. 675.

RECOGNITION

369

established in the international community as fully fledged subjects ofinternational law by virtue of the will and consent of already existingstates.' The disadvantage of this approach is that an unrecognised 'state'
may not be subject to the obligations imposed by international law andmay accordingly be free from such restraints as, for instance, the prohibition on aggression. A further complication would arise if a 'state'
were recognised by some but not other states. Could one talk then of, forexample, partial personality?
The second theory, the declaratory theory, adopts the opposite approach and is a little more in accord with practical realitie~.~
It maintains
that recognition is merely an acceptance by states of an already existing
situation. A new state will acquire capacity in international law not by
virtue of the consent of others but by virtue of a particular factual situation. It will be legally constituted by its own efforts and circumstances andwill not have to await the procedure of recognition by other states. This
doctrine owes a lot to traditional positivist thought on the supremacy ofthe state and the concomitant weakness or non-existence of any central
guidance in the international community.
For the constitutive theorist, the heart of the matter is that fundamentally an unrecognised 'state' can have no rights or obligations in international law. The opposite stance is adopted by the declaratory approachthat emphasises the factual situation and minimises the power of states toconfer legal personality.
Actual practice leads to a middle position between these two perceptions. The act of recognition by one state of another indicates that the former regards the latter as having conformed with the basic requirements
of international law as to the creation of a state. Of course, recognition ishighly political and is given in a number of cases for purely political reasons. This point of view was emphasised by the American representativeon the Security Council during discussions on the Middle East in May
1948. He said that it would be:
See e.g. J. Crawford, The Creation of States in Internatiorzal Law, Oxford, 1979, pp. 17 ff.;
Henkin et al., Irlterrlational Law, pp. 244 ff., and J. Salmon, La Recorir~aissanced'Etat, Paris,
1971. See also R. Rich and D. Turk, 'Symposium: Recent Developments in the Practice ofState Recognition: 4 EIIL, 1993, p. 36.
6th edn, Oxford, 1963, p. 138; I. Brownlie, Principlex
See e.g. 1.L. Brierly, Th~LaivofiVations,of Public International Law, 5th edn, Oxford, 1998, p. 88; D. P. O'Connell, InternationalLaw, 2nd edn, London, 1970, vol. I, pp. 128 ff., and Crawford, Creation of States, pp. 20 ff.
See also the Tinoco arbitration, 1 RIAA, p. 369; 2 AD, p. 34 and Wulfiohn~,.Russian Republic
138 N E 24; 2 AD, p. 39.

370

I N T E R N A T I O N A L LAW

highly improper for one t o admit that any country o n earth can question
the sovereignty of the United States of America in the exercise of the highpolitical act of recognition of the de facto status of a state.

Indeed, he added that there was no authority that could determine
the legality or validity of that act of the United States.' This American
view that recognition is to be used as a kind of mark of approval was inevidence with regard to the attitude adopted towards Communist China
for a generatione8
The United Kingdom, on the other hand, has often tended to extend
recognition once it is satisfied that the authorities of the state in question
have complied with the minimum requirements of international law, andhave effective control which seems likely to continue over the country.9
Recognition is constitutive in a political sense, for it marks the new entity
out as a state within the international community and is evidence of
acceptance of its new political status by the society of nations. This does
not imply that the act of recognition is legally constitutive, because rights
and duties do not arise as a result of the recognition.
Practice over the last century or so is not unambiguous but does point
to the declaratory approach as the better of the two theories. States which
for particular reasons have refused to recognise other states, such as in
the Arab world and Israel and the USA and certain communist nations,''
rarely contend that the other party is devoid of powers and obligations
before international law and exists in a legal vacuum. The stance is rather
that rights and duties are binding upon them, and that recognition has notbeen accorded for primarily political reasons. If the constitutive theory
were accepted it would mean, for example, in the context of the former
Arab non-recognition of Israel, that the latter was not bound by international law rules of non-aggression and non-intervention. This has notbeen adopted in any of the stances of non-recognition of 'states'.''See hf. Whiteman, Digest of International Law, TITashington,1968, vol. 11, p. 10.
See generally D. Young, 'American Dealings with Peking', 45 Foreign Affairs, 1966, 17. 77,
and TYhiteman, Digest, vol. 11, pp. 551 ff. See also AlCN.412, p. 53, cited in Crawford,
Creation of States, p. 16.
See Lauterpacht, Recognition, p. 6.
l o See 39 Bt~lletir~of the US Department of State, 1958,p. 385.
l 1 See e.g. the Pueblo incident, 62 ATIL, 1968, p. 756 and Keesing's Contevnporary Archives, p.
. pp. 604 ff. and 651; 'Contemporary Practice ofthe UK in
23129; Whiteman, Digest, ~ o l11,
International Law', 6 ICLQ, 1957, p. 507, and British Practice in International Laiv (ed. E.
Lauterpacht), London, 1963, rol. 11, p. 90. See also N. Mugerwa, 'Subjects of International
Law' in LManual of International Law (ed. M. Sarensen), London, 1968, pp. 247, 269.
/'

RECOGNITION37l

Of course, if an entity, while meeting the conditions of internationallaw as to statehood, went totally unrecognised, this would undoubtedly
hamper the exercise of its rights and duties, especially in view of theabsence of diplomatic relations, but it would not seem in law to amountto a decisive argument against statehood itself.I2 For example, the Charterof the Organisation of American States adopted at Bogoti in 1948 notes
in its survey of the fundamental rights and duties of states that:the political existence of the state is independent of recognition by otherstates. Even before being recognised the state has the right to defend its
integrity and independence.13

And the Institut de Droit International emphasised in its resolution onrecognition of new states and governments in 1936 that theexistence of the new state with all the legal effects connected with thatexistence is not affected by the refusal of one or more states to recognise.14

In the period following the end of the First World War, the courts of the
new states of Eastern and Central Europe regarded their states as coming
into being upon the actual declaration of independence and not simply
as a result of the Peace Treaties. The tribunal in one case pointed out thatthe recognition of Poland in the Treaty of Versailles was only declaratoryof the state which existed 'par lui-m2me'.15 In addition, the Arbitration
Commission established by the International Conference on Yugoslavia
in 1991 stated in its Opinion No. 1 that 'the existence or disappearance ofthe state is a question of fact' and that 'the effects of recognition by otherstates are purely declaratory'.16
On the other hand, the constitutive theory is not totally devoid of all
support in state practice. In some cases, the creation of a new state, orthe establishment of a new government by unconstitutional means, orthe occupation of a territory that is legally claimed will proceed uneventfully and be clearly accomplished for all to see and with little significant
l2

See above, chapter 5.

" Article 9. This became article 12 ofthe Charter as amendedin 1967. See also the Montevideo

Convention on Rights and Duties of States, 1933, article 3.
l 4 39 Annuaire de L'blstitutde Droit International, 1936,p.300. See also Third US Restatement,

pp. 77-8.
Deutsche Continental Gas-Gesellschaft v. Polish State 5 AD, p. 11.
l6 92 ILR, pp. 162, 165. See also the decision of the European Court of Human Rights in
Loizidou v. Turkey (Preliminary Objectionx), Series A, No. 310, 1995, at p. 14; 103 ILR,
p. 621.
l5

372

I N T E R N A T I O N A L LAW

opposition. However, in many instances, the new entity or government
will be insecure and it is in this context that recognition plays a vitalrole. In any event, and particularly where the facts are unclear and open
to different interpretations, recognition by a state will amount to a declaration by that state of how it understands the situation, and such anevaluation will be binding upon it. It will not be able to deny later thefactual position it has recognised, unless, of course, circumstances radically alter in the meantime. In this sense, recognition can be constitutive.
Indeed, the Yugoslav Arbitration Commission noted in Opinion No. 8that 'while recognition of a state by other states has only declarative value,such recognition, along with membership of international organisations,bears witness to these states' conviction that the political entity so recognised is a reality and confers on it certain rights and obligations underinternational law'.17 By way of contrast, the fact of non-recognition of a'new state' by a vast majority of existing states will constitute tangible evidence for the view that such an entity has not established its conformity
with the required criteria of statehood.''
Another factor which leans towards the constitutive interpretation ofrecognition is the practice in many states whereby an unrecognised stateor government cannot claim the rights available to a recognised stateor government before the municipal courts. This means that the act ofrecognition itself entails a distinct legal effect and that after recognitiona state or government would have enforceable rights within the domestic
jurisdiction that it would not have had prior to the recognition.19
This theoretical controversy is of value in that it reveals the functions ofrecognition and emphasises the impact of states upon the development ofinternational law. It points to the essential character of international law,poised as it is between the state and the international community. The
declaratory theoryveers towards the former and the constitutive doctrine
towards the latter.
There have been a number of attempts to adapt the constitutive theory.
Lauterpacht maintained, for example, that once the conditions prescribedby international law for statehood have been complied with, there is aduty on the part of existing states to grant recognition. This is because,in the absence of a central authority in international law to assess andaccord legal personality, it is the states that have to perform this function
l7 92 ILR, pp. 199,201.
l8 See Democratic Republic of East Ti~norr.State of the Netherlands 87 ILR, pp. 73, 74.

'"eebelow, p. 393.

RECOGNITION

373

on behalf, as it were, of the international community and international
law.20This operation is both declaratory, in that it is based upon certain
definite facts (i.e. the entity fulfils the requirements of statehood) andconstitutive in that it is the acceptance by the recognising state of the particular community as an entity possessing all the rights and obligations
that are inherent in statehood. Before the act of recognition, the community that is hoping to be admitted as a state will onlyhave such rights andduties as have been expressly permitted to it, if any.
The Lauterpacht doctrine is an ingenious bid to reconcile the legal
elements in a coherent theory. It accepts the realities of new creationsof states and governments by practical (and occasionally illegal) means,
and attempts to assimilate this to the supremacy of international law
as Lauterpacht saw it. However, in so doing it ignores the political aspects and functions of recognition, that is, its use as a method of demonstrating or withholding support from a particular government or new
community. The reality is that in many cases recognition is applied todemonstrate political approval or disapproval. Indeed, if there is a duty
to grant recognition, would the entity involved have a right to demand
this where a particular state (or states) is proving recalcitrant? If thiswere so, one would appear to be faced with the possibility of a non-statewith as yet no rights or duties enforcing rights against non-recognisingstates.
Nevertheless, state practice reveals that Lauterpacht's theory has notbeen a d ~ p t e d . The~ ' fact is that few states accept that they are obliged inevery instance to accord recognition. In most cases they will grant recognition, but that does not mean that they have to, as history with regard
to some Communist nations and with respect to Israel illustrates. This
position was supported in Opinion No. 10 of the Yugoslav Arbitration
Commission in July 1992, which emphasised that recognition was 'a discretionary act that other states may perform when they choose and ina manner of their own choosing, subject only to compliance with theimperatives of general international law'.22
The approach of the United States was emphasised in 1976. The
Department of State noted that:
Recogn~nltion,pp. 24, 55, 76-7.
See e.g. H. Waldock, 'General Course o n Public International Law', 106 HR, 1962, p. 154.
See also Mugernla, 'Subjects', pp. 266-90.
22 92 ILR, pp. 206,208.
20
21

374

I N T E R N A T I O N A L LAW[i]n the view of the United States, international law does not require a state
to recognise another entity as a state; it is a matter for the judgment ofeach state whether an entity merits recognition as a state. In reaching thisjudgment, the United States has traditionally looked to the establishmentof certain facts. These facts include effective control over a clearly defined
territory and population; an organised governmental administration ofthat territory and a capacity to act effectively to conduct foreign relations
and to fulfil international obligations. The United States has also taken into
account whether the entity in question has attracted the recognition of theinternational community of states.23

The view of the UK government was expressed as follows:
The normal criteria which the governnlent apply for recognition as a state
are that it should have, and seem likely to continue to have, a clearly defined
territory with a population, a governinent who are able of themselves toexercise effective control of that territory, and iildependeilce in their external relations. Other factors, including some United Nations resolutions,
may also be rele~ant.~''Recent practice suggests that 'other factors' may, in the light of theparticular circumstances, include human rights and other matters. The
European Community adopted a Declaration on 16 December 1991 entitled 'Guidelines on the Recognition of New States in Eastern Europe
and in the Soviet Union' in which a common position on the process ofrecognition of the new states was adopted. It was noted in particular thatrecognition required:- respect for the provisions of the Charter of the United Nations andthe commitmeilts subscribed to in the Final Act of Helsinki and in theCharter of Paris,>' especially with regard to the rule of law, democracy
and human rights;- guarantees for the rights of ethnic and national groups and minorities
in accordance with the commitments subscribed to in the framework of
the CSCE;26- respect for the inviolability of all frontiers which can only be changed
by peaceful means and by common agreement;" DUSPIL, 1976, pp. 19-20.

"'02

'i

HC Deb., col. 977, Written Answer, 23 October 1986. See also 169 HC Deb., cols.
449-50, Written Answer, 19 March 1990. As to French practice, see e.g. Journal Officiel,
Debats Parl., AN, 1988, p. 2324.
See above, chapter 7, p. 349.
l6 See above, chapter 7, p. 346.

RECOGNITION

375- acceptance of all relevant commitments with regard to disarmament andnuclear non-proliferation as well as to security and regional stability;- commitment to settle by agreement, including where appropriate byrecourse to arbitration, all questions concerning state succession andregional disputes."

On the same day that the Guidelines were adopted, the European Community also adopted a Declaration on ~ u g o s l a v i ain, ~ which~
the Community and its member states agreed to recognise the Yugoslav republics
fulfilling certain conditions. These were that such republics wished to berecognised as independent; that the commitments in the Guidelines were
accepted; that provisions laid down in a draft convention under consideration by the Conference on Yugoslavia were accepted, particularly thosedealing with human rights and the rights of national or ethnic groups;
and that support would be given to the efforts of the Secretary-Generalof the UN and the Security Council and the Conference on Yugoslavia.
The Community and its member states also required that the particular
Yugoslav republic seeking recognition would commit itself prior to recognition to adopting constitutional and political guarantees ensuring thatit had no territorial claims towards a neighbouring Community state.
The United States took a rather less robust position, but still noted
the relevance of commitments and assurances given by the new statesof Eastern Europe and the former USSR with regard to nuclear safety,
democracy and free markets within the process of both recognition andthe establishment of diplomatic relation^.'^There are many different ways in which recognition can occur and it
may apply in more than one kind of situation. It is not a single, constantidea but a category comprising a number of factors. There are indeed
different entities which may be recognised, ranging from new states, to" UKhlIL, 62 BYIL, 1991, pp. 559-60.

2'

On 31 December 1991, the European Community issued a statement noting that Armenia, Azerbaijan, Belarus, Kazakhstan, Moldova,
Turkmenistan, Ukraine and Uzbekistan had given assurances that the requirements in the
Guidelines would be fulfilled. Accordingly, the member states of the Community declaredthat they were willing to proceed with the recognition of these states, zbtd., p. 561. On 15
January 1992, a statement was issued noting that Kyrghyzstan and Tadzhikistan had accepted the requirements in the Guidelines and that they too would be recognised, UKMIL,
63 BYIL, 1992,p. 637.
UKMIL, 62 BYIL, 1991, pp. 560-1.
See the announcement by President Bush on 25 December 1991,2(4 & 5) Foreign Policy
Bulletin, 1992, p. 12, as cited in Henkin et al., International Law, pp. 252-3. See also, as tothe importance of democratic considerations, S. D. Murphy, 'Democratic Legitimacy andthe Recognition of States and Governments: 48 ICLQ, 1999, p. 545.

376

I N T E R N A T I O N A L LAW

new governments, belligerent rights possessed by a particular group andterritorial changes. Not only are there various objects of the process ofrecognition, but recognition may itself be de facto or de jure and it may
arise in a variety of manners.
Recognition is an active process and should be distinguished from
cognition, or the mere possession of knowledge, for example, that theentity involved complies with the basic international legal stipulations as
to statehood. Recognition implies both cognition of the necessary facts
and an intention that, so far as the acting state is concerned, it is willingthat the legal consequences attendant upon recognition should operate.
For example, the rules as to diplomatic and sovereign immunities should
apply as far as the envoys of the entity to be recognised are concerned.
It is not enough for the recognising state simply to be aware of the facts,
it must desire the coming into effect of the legal and political resultsof recognition. This is inevitable by virtue of the discretionary natureof the act of recognition, and is illustrated in practice by the lapse intime that often takes place between the events establishing a new state or
government and the actual recognition by other states. Once given, courts
have generally regarded recognition as retroactive so that the statehoodof the entity recognised is accepted as of the date of statehood (which isa question of fact), not from the date of re~ognition.~'Recognition of governments31
The recognition of a new government is quite different from the recognition of a new state. As far as statehood is concerned, the factual situation'O

See e.g. Chen, I<ecognition, pp. 172 ff. See also the views of the Y~~goslav
Arbitration
Commission as to the date of successioll of the former Yugoslav republics, Opinion No.
11, 96 ILR, p. 719. Note that retroactivity of recognition is regarded by Oppenheim as arule of convenience rather than of principle: see Oppenheimi International Law, p. 161.
See e.g. I. Rrownlie, 'Recognition in Theory and Practice', 53 RYIL, 1982, p. 197;
C. ivarbrick, 'The New British Policy on Recognition of Governments', 30 ICLQ, 1981,
p. 568; M. J. Peterson, 'Recognition of Governments Should Not Re Abolished', 77 AJIL,
1983, p. 31, and Peterson, Recognition of Governments: Legal Doctrine and State Practice,London, 1997; N. Ando, 'The Recognition of Governments Reconsidered', 28 JapaneseAnnual of Internatiofial Law, 1985, p. 29; C. Symmons, 'United Kingdom Abolition of theDoctrine of Recognition: A Rose by Another Name', Public Lu~v,1981, p. 248; S. Talmon,'Recognition of Governments: An Analysis ofthe New British Policy and Practice', 63 BYIL,
1992, p. 231, and Talmon, Recognition ofGovernr7wnts iii Internatioizul Law, Oxford, 1998;
B. R. Roth, Goverilrnental Illegitiniacy in Intel-natioilal Law, Oxford, 1999; Oppenheirn's
Internatioizal Law, p. 150; Nguyen Quoc Dinh et al., Droit International Public, p. 415, andGalloway, Recogilising Foreign Governnients.

377

RECOGNITION

will be examined in terms of the accepted criteria.32 Different considerations apply where it is the government which changes. Recognition
will only really be relevant where the change in government is unconstitutional. In addition, recognition of governments as a category tends tominimise the fact that the precise capacity or status of the entity so recognised may be characterised in different ways. Recognition may be of a defucto3"overnment or administration or of a government or administration in effective control of only part ofthe territory ofthe state in question.
Recognition constitutes acceptance of a particular situation by the recognising state both in terms of the relevant factual criteria and in terms ofthe consequential legal repercussions, so that, for example, recognition ofan entity as the government of a state implies not only that this government is deemed to have satisfied the required conditions, but also that therecognising state will deal with the government as the governing authority
ofthe state and accept the usual legal consequences of such status in terms
of privileges and immunities within the domestic legal order.
Political considerations have usually played a large role in the decision whether or not to grant recognition. However, certain criteria haveemerged to cover recognition of illegal changes in government. Such criteria amounted to an acceptance of the realities of the transfer of power andsuggested that once a new government effectively controlled the country and that this seemed likely to continue, recognition should not be
withheld. The United Kingdom on a number of occasions adopted thisapproach.34It was declared by the Under-Secretary of State for Foreign
Affairs in 1970 that the test employed was whether or not the new government enjoyed, 'with a reasonable prospect of permanence, the obedienceof the mass of the population.. . effective control of much of the greaterpart of the territory of the state ~oncerned'.~'It is this attitude which prompted such policies as the recognition of thecommunist government of China and the Russian-installed governmentof Hungary in 1956 after the failure of the uprising. However, this general approach cannot be regarded as an absolute principle in view of the
British refusal over many yearsto recognise as states NorthVietnam, North
Korea and the German Democratic ~ e p u b l i c . 'The~ effective control of'' See above, chapter 5, p. 177.

" See filrther below, p. 382.

34 See the Morrison statement, 485 HC Deb., cols. 2410-11,21

March 1951.

" 799 HC Deb., col. 23, 6 April 1970. See also Foreign Office statements, 204 HL Deb., col.

755,4 July 1957 and 742 HC Deb., cols. 6-7, Written Answer, 27 February 1967.
See e.g. D. Greig, 'The Carl-Zeiss Case and the Position of an Unrecognised Governinent
in English Law: 83 LQR, 1967, py. 96, 128-30 and Re Al-Fin Corporutioil's Puteilt [I9701
Ch. 160; 52 ILR, p. 68.

378

I N T E R N A T I O N A L LAW

a new government over the territory of the state is thus an important
guideline to the problem of whether to extend recognition or not, providing such control appears well established and likely to continue. But
it was no more than that and in many cases appeared to yield to politicalconsiderations.
The Tinoco arbitration" constitutes an interesting example of the 'effective control' concept. In 1919, the government of Tinoco in Costa
Rica was overthrown and the new authorities repudiated certain obligations entered into by Tinoco with regard to British nationals. Chief
Justice Taft, the sole arbitrator, referred to the problems of recognition
or non-recognition as relating to the Tinoco administration. He decided
that since the administration was in effective control of the country, it
was the valid government irrespective of the fact that a number of states,
including the United Kingdom, had not recognised it. This was so despite
his opinion that:the non-recognition by other nations of a government claiming to be anational personality, is usually appropriate evidence that it has not attained
the independence and control entitling it by international law to be classed
as such.3K

Where recognition has been refused because of the illegitimacy or irregularity of origin of the government in question, rather than because of thelack of effectiveness of its control in the country, such non-recognition
loses some of its evidential weight. In other words, where the degreeof authority asserted by the new administration is uncertain, recognition by other states will be a vital factor. But where the new government
is firmly established, non-recognition will not affect the legal character of the new government. The doctrine of effective control is an indication of the importance of the factual nature of any situation. But
in those cases where recognition is refused upon the basis of the improper origins of the new government, it will have less of an impact
than if recognition is refused because of the absence of effective control. Taft's view of the nature of recognition is an interesting amalgam ofthe declaratory and constitutive theories, in that recognition can become
constitutive where the factual conditions (i.e. the presence or absence ofeffective control) are in dispute, but otherwise is purely declaratory or
evidential.
" 1 RIAA, p. 369 (1923); 2 AD, p. 34.

38

1 RIAA, p. 380; 2 AD, p. 37.

RECOGNITION379

A change in government, however accomplished, does not affect theidentity of the state itself. The state does not cease to be an international
legal person because its government is overthrown. That is not at issue.
The recognition or non-recognition of a new administration is irrelevantto the legal character of the country. Accordingly one can see that two
separate recognitions are involved and they must not be confused. Recognition of a state will affect its legal personality, whether by creating or
acknowledging it, while recognition of a government affects the status of
the administrative authority, not the state.
It is possible, however, for recognition of state and government to occur
together in certain circumstances. This can take place upon the creationof a new state. Israel, to take one example, was recognised by the UnitedStates and the United Kingdom by the exp edient of having its government
recognised de facto.j9Recognition of the government implies recognitionof the state, but it does not work the other way.
It should be noted that recognition of a government has no relevance to the establishment of new persons in international law. Where
it is significant is in the realm of diplomatic relations. If a governmentis unrecognised, there is no exchange of diplomatic envoys and thus
problems can arise as to the enforcement of international rights andobligations.
Although the effective control doctrine is probably accepted as the mostreliable guide to recognition of governments, there have been other theories put forward, the most prominent amongst them being the Tobar
doctrine or the so-called doctrine of legitimacy. This suggested that governments which came into power by extra-constitutional means should
not be recognised, at least until the change had been accepted by thepeople.40This policy was applied particularly by the United States in relation to Central America and was designed to protect stability in thatdelicate area adjacent to the Panama Canal. Logically,of course, the concept amounts to the promotion of non-recognition in all revolutionary
situations and it is, and was, difficult to reconcile with reality and politicalconsideration. In American eyes it became transmuted into the Wilson
policy of democratic legitimacy. Where the revolution was supported by
the people, it would be recognised. Where it was not, there would be no
grant of recognition. It was elaborated with respect to the Soviet Union
until 1933, but gradually declined until it can now be properly accepted3'

See e.g. Whiteman, Digest, vol. 11, p. 168.

40 See e.g. Mugerwa, 'Subjects: p. 271, and 2 ATIL, 1908, Supp., p. 229.

380

I N T E R N A T I O N A L LAW

merely as a political qualification for recognition to be considered by therecognising statea4'
A doctrine advocating the exact opposite, the automatic recognitionof governments in all circumstances, was put forward by Estrada, theMexican Secretary of Foreign ~elations." But this suffers from the same
disadvantage as the legitimacy doctrine. It attempts to lay down a clear
test for recognition in all instances excluding political considerations
and exigencies of state and is thus unrealistic, particularly where there
are competing governments.43 It has also been criticised as minimising the distinction between recognition and maintenance of diplomatic

relation^.^"The problem, of course, was that recognition of a new government thathas come to power in a non-constitutional fashion was taken to imply
approval. Allied with the other factors sometimes taken into account insuch recognition situation^,^' an unnecessarily complicated process had
resulted. Accordingly, in 1977 the United States declared that:
US practice has beell to de-emphasise and avoid the use of recogilitioil
in cases of changes of governments and to conceril ourselves with thequestion of whether we wish to have diplomatic relations with the new
governments. . . The Administration's policy is that establishmeilt of relations does not involve approval or disapproval but merely demonstrates
a williilgness o n our part to conduct our affairs with other governments
dire~tly.~"
Digest of International Law, Washington, DC, 1940, vol. I,
pp. 181 ff. See also 17 AJIL, 1923, Supp., p. 118; O'Connell, Irlterrlational Law, pp. 137-9,
and Whiteman, Digest, vol. 11, p. 69.
42 See e.g. 25 AJIL, 1931, Supp., p. 203; P. Jessup, 'The Estrada Doctrine', 25 AJIL, 1931, p. 719,
and Whiteman, Digest, vol. 11,p. 85. See also Talmon, 'Recognition of Governments', p. 263;
Law, pp. 134-5, and C. Rousseau, Droit
Chen, Recognition, p. 116; O'Connell, Ii~teri~ational
Ir~ternatiorlalPublic, Paris, 1977, vol. 111, p. 555.
43 See e.g. Peterson, 'Recognition', p. 42, and C. Rousseau, 'Chroniques des Faits Internationaux', 93 RGDIP, 1989, p. 923.
44 Warbrick, 'New British Policy', p. 584.
4' For example, the democratic requirement noted by President Wilson, President Rutherford
Hayes' popular support condition and Secretary of State Seward's criterion of ability tohonour international obligatioils: see statement by US Department ofstate, DUSPIL, 1977,
pp. 19,20. See also Third USRestntement, para. 203, note 1. The Organisation ofAmerican
States adopted a resolution in 1965 recorn~nendingthat states coiltemplating recogilitioilof a new go\renlmentshould take into account whether that government proposes to holdelectioils within a reasoilable time, 5 ILM, 1966, p, 155.
DUSPIL, 1977, p. 20. See also DUSPIL, 1981-8, vol. I, 1993, p. 295. Note that Deputy
Secretary of State Christopher stated in 1977 that unscheduled changes of government
41 See e.g. G. H. Hackworth,"RECOGNITION

3s1

In 1980, the UK government announced that it would no longer accord
recognition to governments as distinct from states.47This was stated to be
primarily due to the perception that recognition meant approval, a perception that was often embarrassing, for example, in the case of regimes
violating human rights. There were, therefore, practical advantages in notaccording recognition as such to governments. This change to a policy of
not formally recognising governments had in fact taken place in certain
civil law countries rather earlier. ~ e l g i u r nand~ ~~rance" appear, for example, to have adopted this approach in 1965. By the late 1980s, thisapproach was also adopted by both ~ustralia" and Canada,'' and indeedby other countries.j2
The change, however, did not remove all problems, but rather shifted
the focus from formal recognition to informal 'dealings'. The UK announced that it would continue to decide the nature of dealings withunconstitutional regimes:
in the light of [an] assessment of whether they are able of themselves toexercise effective control of the territory of the state concerned, and seem
likely to continue to d o so."

The change, therefore, is that recognition of governments is abolishedbut that the criterion for dealing with such regimes is essentially the same
were not uncommon in this day and age and that 'withholding diplomatic relations fromthese regimes after they have obtained effective control penalises us', ibid., p. 18. See also,
as regards Afghanistan and the continuation of diplomatic relations, 72 AJIL, 1978, p. 879.
Cf. the special circumstances of the recognition of the government of China, DUSPIL,
1978, pp. 71-3 and ibid., 1979, pp. 142 ff. But cf. Petersen, 'Recognition:
47 See 408 HL Deb., cols. 1121-2,28 April 1980. See also Symmons, 'United Kingdom Abolition', p. 249.
48 See 11 Revue Belge de Droit Interr~ational,1973, p. 35 1.
See 69 RGDIP, 1965, p. 1089. See also 83 RGDIP, 1979, p. 808; G. Charpentier, 'Pratique
Franqaise du Droit International: AFDI, 1981, p. 911, and Rousseau, Droit International
Public, p. 555.
" See J. G. Starke, 'The New Australian Policy of Recognition of Foreign Governments', 62Australian La111Journal, 1988, p. 390.
" See 27 Canadian YIL, 1989, p. 387.
See e.g. the Netherlands, 22 Netherlands YIL, 1991, p. 237, and New Zealand, AttorneyGeneral for Fiji r.Tobt Jones House Ltd [I9891 2 NZLR 69 at 70-1. The European Union
has stated that 'it does not recognise governments, and even less political personalities,
but states, according to the most common international practice: Bulletin of theEuropean
Union, 1999-718, p. 60 and UKMIL, 70 BYIL, 1999, p. 424.
j3 408 HL Deb., cols. 1121-2, 28 April 1980. This has been reaffirmed on a number ofoccasions: see e.g. UKMIL, 69 BYIL, 1998, p. 477 and UKMIL, 72 BYIL, 2001, p. 577.

"

'>

3s2

I N T E R N A T I O N A L LAW

as the former test for the recognition of government^.^^ In that context,
regard should also be had to the phrase 'of themselves:55

De facto and de jure r e ~ o g n i t i o n ~ ~In addition to the fact that there are different entities to be recognised,
recognition itself may take different forms. It may be either defacto or dejure. A more correct way of putting this might be to say that a government(or other entity or situation) may be recognised de facto or de jure.
Recognition de facto implies that there is some doubt as to the longterm viability of the government in question. Recognition de jure usually follows where the recognising state accepts that the effective control
displayed by the government is permanent and firmly rooted and that
there are no legal reasons detracting from this, such as constitutional
subservience to a foreign power. D e facto recognition involves a hesitantassessment of the situation, an attitude of wait and see, to be succeeded byde jure recognition when the doubts are sufficiently overcome to extend
formal acceptance. To take one instance, the United Kingdom recognised
the Soviet government de facto in 1921 and de jure in 1924.j7 A slightly
different approach is adopted in cases of civil war where the distinction
between de jure and defacto recognition is sometimes used to illustrate thevariance between legal and factual sovereignty. For example, during the
1936-9 Spanish Civil War, the United Kingdom, while recognising theRepublican government as the de jure government, extended de facto
recognition to the forces under General Franco as they gradually took
over the country. Similarly, the government of the Italian conquering
forces in Ethiopia was recognised de facto by the UK in 1936, and de jure
two years
By this method a recognising state could act in accordance with politicalreality and its own interests while reserving judgment on the permanencej4

See Gur Corporation v. Trust Bank ofiifrica [I9871 1 QB 599; 75 ILR, p. 675.

" See, as regards the different approaches adopted to the Cambodian and Ugandan experiences, Symmons, 'United Kingdom Abolition: p. 250, and UKMIL, 50 BYIL, 1979,
p. 296. See also above, chapter 4, p. 172. See, as to recognition of belligerency and insurgency, e.g. O'Connell, blternational Law, pp. 148-53; Lauterpacht, Recognition, p. 270,
and Oppenlleimi Internatiorlal Law, pp. 161 ff.
j6 See e.g. Oppenheim? International Law, p. 154.
" See e.g. O'Connell, International Laiv, p. 161. See also the Morrison statement, above, note34.
See below, pp. 391 and 396.

''

RECOGNITION

3 83

of the change in government or its desirability or legality. It is able tosafeguard the affairs of its citizens and institutions by this, because certain
legal consequences will flow in municipal law from the r e ~ o g n i t i o n . ~ ~There are in reality few meaningful distinctions between a de fucto anda de jure recognition, although only a government recognised de jure may
enter a claim to property located in the recognising state.60Additionally,
it is generally accepted that defucto recognition does not of itself include
the exchange of diplomatic relations.
Premature recognition 6 'There is often a difficult and unclear dividing line between the acceptable
recognition of a new state, particularly one that has emerged or is emerging as a result of secession, and intervention in the domestic affairs ofanother state by way of premature or precipitate recognition, such as, forexample, the view taken by the Nigerian federal government with respect
to the recognition of 'Biafra' by five states.62In each case, the state seeking
to recognise will need to consider carefully the factual situation and thedegree to which the criteria of statehood (or other relevant criteria withregard to other types of entity with regard to which recognition is sought)
have been fulfilled. It is therefore a process founded upon a perceptionof fact. In the case of Croatia, it could be argued that the recognitionof that state by the European Community and its member states (together with Austria and Switzerland) on 15 January 1992 was premature.63
Croatia at that time, and for several years thereafter, did not effectively
control some one-third of its territory. In addition, the Yugoslav Arbitration Commission had taken the view in Opinion No. 5 on 11 January
1992 that Croatia did not meet fully the conditions for recognition laid
down in the European Community Guidelines of 16 December 1 9 9 1 , ~ ~since the Constitutional Act adopted by Croatia did not fully incorporate" See below, p. 393.
60 See e.g. Haile Selassiev. Cable and Wireless Ltd (No. 2) [I9391 1 Ch. 182; 9 AD, 17. 94.

Oppenkeinl's International Law, pp. 143 ff. and Nguyen Quoc Dinh et al., Droit
International Public, p. 558.
62 See e.g. 1.Stremlau, Thelr~ternational
Politics ofthe Nigerian Civil War, 1967-70, Princeton,
1977, pp. 127-9, and D. Ijalaye, 'Was "Biafra" at Any Time a State in International Law?',
65 AJIL, 1971, p. 51. See also Lauterpacht, Recognition, pp. 7-8.
63 See e.g. R. Mullerson, International Law, Rights and Politics, London, 1994, p. 130, andand the Soviet Union: 4 EJIL,
R. Rich, 'Recognition of States: The Collapse of Y~~goslavia
1993, p. 36.
64 See above, p. 374.
61 See e.g.

384

I N T E R N A T I O N A L LAW

the required guarantees relating to human rights and minority rightsah5
It could also be argued that the recognition of Bosnia-Herzegovina on
6 April 1992 by the European Community and member states and on
7 April 1992 by the USA was premature, particularly since the government of that state effectively controlled less than one-half of its territory,a situation that continued until the Dayton Peace Agreement of Novem~ the other hand, it could be argued that in the special
ber 1 9 9 5 . ~On
circumstances of Former Yugoslavia, the international community (particularly by means of membership of the UN which is restricted to states)
was prepared to accept a loosening of the traditional criteria of statehood, so that essentially international recognition compensated for lack ofeffectivity.
Recognition may also be overdue, in the sense that it occurs long after it
is clear as a matter of fact that the criteria of statehood have been satisfied,
but in such cases, different considerations apply since recognition is notcompulsory and remains a political decision by states.67

Implied recognition h8
Recognition itself need not be express, that is in the form of an open,
unambiguous and formal communication, but may be implied in certain" 92 ILR, pp. 179,181. Note that the President of Croatia on 15 January 1992 announced that
Croatia would abide by the necessary conditions and on 8 May 1992 its Constitution wasamended. The amended Constitution was considered by the Arbitration Comn~issionon 4
Tuly 1992, which concluded that the requirements of general international law with regard
to the protection of minorities had been satisfied, ibiri., p. 209. Note, however, the criticalviews of the UN Human Rights Committee with regard to the distinctions made in the
Croatian Constitution between ethnic Croats and other citizens: see CCPRICI79IAdd.15,
p. 3. Croatia became a member of the UN on 22 May 1992. See also M. Tlreller, 'The
International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia:
86 AJIL, 1992, p. 569.
66 See e.g. Weller, 'International Response: Cf. the views of the UK Minister of State at theForeign Office, UKMIL, 63 BYIL, 1992, p. 645. Note that Bosnia became a member of the
UN on 22 May 1992.
See e.g. with regard to the delays in recognising Macedonia, Henkin et al., InternationalLaw, p. 253, and Nguyen Quoc Dinh et al., Droit Iriternatiorzal Ptlblic, p. 565. Israel, ofcourse, remained unrecognised by its Arab neighbours until long after its establishment
in 1948. It was recognised in 1979 by Egypt and in 1995 by Jordan.
See e.g. Oppenheirni International Law, p. 169; Lauterpacht, Recognition, pp. 369-408, andChen, Recognition, pp. 201-16. See also Talmon, 'Recognition of Governments', pp. 255
ff., and M. Lachs, 'Recognition and Modern Methods of International Co-operation', 35
BYIL, 1959, p. 252.

''

RECOGNITION

385

circumstance^.^^ This is due to the fact that recognition is founded upon
the will and intent of the state that is extending the recognition. Accordingly, there are conditions in which it might be possible to declare thatin acting in a certain manner, one state has by implication recognised
another state or government. Because this facility of indirect or implied
recognition is available, states may make an express declaration to the effect that a particular action involving another party is by no means to beinterpreted as comprehending any recognition. This attitude was maintained by Arab countries with regard to Israel, and in certain other cases7'
It automatically excludes any possibility of implied recognition but doessuggest that without a definite and clear waiver, the result of some international actions may be recognition of a hitherto unrecognised entity incertain circumstances.
The point can best be explained by mentioning the kind of conditions
which may give rise to the possibility of a recognition where no express
or formal statement has been made. A message of congratulations to a
new state upon attaining sovereignty will imply recognition of that state,
as will the formal establishment of diplomatic relations," but the maintenance of informal and unofficial contacts (such as those between the
United States and Communist China during the 1960s and early 1970s
in Warsaw) will not.72The issuing of a consular exeqtiatur, the accepted
authorisation permitting the performance of consular functions, to a representative of an unrecognised state will usually amount to a recognitionof that state, though not in all cases.7-'A British Consul has operated in
Note that article 7 of the Montevideo Convention on Rights and Duties of States, 1933
provides that 'the recognition of a state may be express or tacit. The latter results fromany act which implies the intention of recognising the new state.' See also R. Higgins, The
Developinent of International Law by the Political Organs of the United Nations, Oxford,
1963, pp. 140 ff.
' O See e.g. UK and North L7ietnam, Cmd 9763, p. 3, note 1, and Israel and Arab countries, International Convention on the Elimination of all Forms of Racial Discrimination,
1965: see Hurrlan Rights International Iizstrurrlents, UN, STlHRl41rev.4, 1982. Note that
Egypt withdrew its declarations regarding non-recognition of Israel with regard to thisConvention on 18 January 1980, ibid., p. 86.
See O'Connell, International Laiv, pp. 154-5. Note that the UK stated that in the caseof Namibia 'there was no formal recognition of statehood, but it was implicit in theestablishment of diplomatic relations in March 1990: UKMIL, 63 BYIL, 1992, 17. 642.
Instructing an ambassador to make suitable, friendly contact with the new administrationin question might also suffice: see UKMIL, 50 BYIL, 1979, p. 294.
72 See e.g. Pan American World Airways Inc. v. Aetna Casualty and Surety Co. 13 ILM, 1974,
pp. 1376, 1397.
7' See Oppenheim's International Law, p. 171, note 9.
h9

"

386

I N T E R N A T I O N A L LAW

Taiwan, but the UK does not recognise the Taiwan g ~ v e r n m e n tIt. ~is~possible that the conclusion of a bilateral treaty between the recognisingand unrecognised state, as distinct from a temporary agreement, might
imply recognition, but the matter is open to doubt since there are a number of such agreements between parties not recognising each other. One
would have
- - to study the circumstances of the particular case to clarify
the issue." The making of claims by a state against an entity will notnecessarily imply r e ~ o g n i t i o n . ~ ~Recognition is not normally to be inferred from the fact that bothstates have taken part in negotiations and signed a multilateral treaty,77
for example the United Nations Charter. Practice shows that many of themember states or their governments are not recognised by other member
states.78Although Israel and many Arab countries are UN members, thisdid not affect Arab non-recognition of the Israeli state.79However, where
the state concerned has voted in favour of membership in the UN of theentity in question, it is a natural inference that recognition has occurred.
The UK, for example, regarded its vote in favour of UN membership for
the former Yugoslav republic of Macedonia as amounting to recognitionof that entity as a state.80Indeed, irrespective of recognition by individual
7 ~ i ~ c u ~with~ i ano unrecognised
n ~entity conducted by consular officers will not of itself
imply recognition: see e.g. H, de Smith, Great Britain and the Law ofNations, London,
1932, vol. I, p. 79, and Civil Air Transport Inc. v. Central Air Trailsport Corporatioiz [I9531
AC 70, 88-9. The establishment of an office in the UK, for example, of an unrecognised
entity is not as such prohibited nor does it constitute recognition: see e.g, with regard
to the PLO, 483 HL Debs., cols. 1248-52, 27 ranuarp 1987 and UKMIL, 58 BYIL, 1987,
p. 531. Note that under section 1 of the Diplomatic and Consular Premises Act 1987,
the permission of the Foreign Secretary is required if the premises in question are to be-- regarded as diplomatic or consular.
/'
See e.g. Republic of China v. Merchants' Fire Assurance Corporation of New York 30 F.2d
278 (1929);5 AD, p. 42 and Clerget v. Bailqzle Cornrnercialepoclr 1'Europe du Nord 52 ILR,
p. 310. See, with regard to the special position as bet~veenthe German Federal Republic
and the German Democratic Republic, Re Treaty on the Basis of Relations Between theFederal Republic of Gernlany and the Gerinan DernocraticRepublic 78 ILR, p. 150. See also
Whiteman, Digest, vol. 11, pp. 567 ff.
j6 See e.g. with regard to FormosalTaim~an,6 ICLQ, 1957, p. 507 and with regard to Turkish-- occupied northern Cyprus, 957 HC Deb., col. 247, Il'ritten Answer, 8 November 1978.
See e.g. UKMIL, 49 BYIL, 1978, p. 339. See also Whiteman, Digest, vol. 11, pp. 563 ff.
See the Memorandum on the Legal Aspects ofthe Problem of Representation in the United
Nations, S11466, 1950 and 4 International Organisatiorl, 1950, pp. 356, 359.
j9 See e.g. Q. Wright, 'Some Thoughts about Recognition', 44 AJIL, 1950, p. 548. See also,with regard to the Ukraine and Byelorussia, members of the UN prior to the demise of
the USSR of which they were constituent republics, UKMIL, 55 BYIL, 1978, p. 339.
See 223 HC Debs., col. 241, Written Answer, 22 April 1993 and UKMIL, 64 BYIL, 1993,
p. 601. Note that a similar view was taken with regard to the Democratic People's Republicof Korea, 62 BYIL, 1991, p. 559.

''

RECOGNITION

387

states, there is no doubt that membership of the UN is powerful evidence of statehood since being a state is a necessary precondition to UN
membership by virtue of article 4 of the UN Charter.81
In the case of common participation in an international conference,
similar considerations apply, although the element of doubt has often
stimulated non-recognising states to declare expressly that their presence
and joint signature on any agreement issuing forth from the meeting isin no way to be understood as implying recognition. Such has been thecase particularly with the Arab states over the years with regard to Israel.
State practice has restricted the possible scope of operation of thisconcept of implied recognition to a few instances only and all the relevant surrounding circumstances will have to be carefully evaluated before
one can deduce from conduct the intention to extend recognition. States
like to retain their control of such an important political instrument as
recognition and are usually not keen to allow this to be inferred from theway they behave. They prefer recognition to be, in general, a formal act
accorded after due thought.

Conditional recognition
The political nature of recognition has been especially marked with reference to what has been termed conditional recognition. This refers to
the practice of making the recognition subject to fulfilment of certain
conditions, for example, the good treatment of religious minorities as occurred with regard to the independence of some Balkan countries in thelate nineteenth century, or the granting of most-favoured-nation status
to the recognised state. One well-known instance of this approach was
the Litvinov Agreement of 1933 whereby the United States recognised theSoviet government upon the latter undertaking to avoid acts prejudicial
to the internal security of the USA, and to come to a settlement ofvarious
financial claims.82
However, breach of the particular condition does not invalidate therecognition. It may give rise to a breach of international law and politicalrepercussions but the law appears not to accept the notion of a conditional recognition as such. The status of any conditions will depend upon
" See the Conditions ofMembership of the Lrnited Nations case, ICT Reports, 1948, pp. 57 ff.;

15 AD, p. 333.
" See e.g. Lrr:nitedStates v. Pink 315 US 203, 229 (1942), Whiternan, Digest, vol. 11, pp. 120

ff., and A. Kiss, RCpertoire de la Pratique Frarl~aiseerl ,Mutitre de Droit Iriternational Public,
Paris, 1962-72, vol. 111, pp. 40 ff.

388

I N T E R N A T I O N A L LAW

agreements specifically made by the particular parties.83 It is, however,important to distinguish conditional recognition in this sense from theevolution of criteria for recognition generally, although the two categories
may in practice ~ v e r l a p . ' ~Collective recognitions5
The expediency of collective recognition has often been noted. This would
amount to recognition by means of an international decision, whether
by an international organisation or not. It would, of course, signify theimportance of the international community in its collective assertion ofcontrol over membership and because of this it has not been warmly
welcomed, nor can one foresee its general application for some time tocome. The idea has been discussed particularly since the foundation of
the League of Nations and was re-emphasised with the establishment of
the United Nations. However, it rapidly became clear that member states
reserved the right to extend recognition to their own executive authorities
and did not wish to delegate it to any international institution. The mostthat could be said is that membership of the United Nations constitutes
powerful evidence of statehood. But that, of course, is not binding uponother member states who are free to refuse to recognise any other member
state or government of the U N . ~ ~Withdrawal of recognitions7
Recognition once given may in certain circumstances be withdrawn. Thisis more easily achieved with respect to de facto recognition, as that is by
its nature a cautious and temporary assessment of a particular situation.

'' See e.g. Lauterpacht, Recognition, chapter 19. See also the Treaty of Berlin, 1878 concerning
Bulgaria, Montenegro, Serbia and Romania and the provisions dealing with freedom of
religion, articles \', XX\'II, XXXV and XLIII.
84 See further above, p. 374, with regard to the approach of the European Community to theemergence ofnew states in Eastern Europe and out ofthe former USSRandYugoslavia. This
constituted a co-ordinated stand with regard to criteria for recognition by the Community
and its member states rather than collective recognition as such.
" See e.g. Higgins, Development of Irlternational Law; Dugard, Recognition; Lauterpacht,
Recognition, p. 400; Chen, Recognition, p. 211, and Oppenheirn's International Law,
pp. 177 ff.
86 See further above, p. 386.
" See Lauterpacht, Recognition, p. 349.

RECOGNITION

389

Where a defacto government loses the effective control it once exercised,
the reason for recognition disappears and it maybe revoked. It is in generala preliminary acceptance of political realities and may be withdrawn inaccordance with a change in political factors.@ De jure recognition, on
the other hand, is intended to be more of a definitive step and is moredifficult to withdraw.
Of course, where a government recognised de jure has been overthrowna new situation arises and the question of a new government will haveto be faced, but in such instances withdrawal of recognition of the previous administration is assumed and does not have to be expressly stated,
providing always that the former government is not still in existence andcarrying on the fight in some way. Withdrawal of recognition of one government without recognising a successor is a possibility and indeed was
the approach adopted by the UK and France, for example, with regard
to Cambodia in 1979.'~ However, with the adoption of the new British, ~ ~position is now
policy on recognition with regard to g o v e r n r n e n t ~thethat the UK government will neither recognise nor withdraw recognitionof regimesg1
Withdrawal of recognition in other circumstances is not a very generaloccurrence but in exceptional conditions it remains a possibility. The
United Kingdom recognised the Italian conquest of Ethiopia de facto in1936 and de jure two years later. However, it withdrew recognition in
1940, with the intensification of fighting and the dispatch of military
aid.92Recognition of belligerency will naturally terminate with the defeatof either party, while the loss of one of the required criteria of statehood
would affect recognition. It is to be noted that the 1979 recognition of thePeople's Republic of China as the sole legal government of China entailed
the withdrawal of recognition or 'derecognition' of the Republic of China(Taiwan). This was explained to mean that, 'so far as the formal foreign
relations of the United States are concerned, a government does not exist
in Taiwan any longer'.93

Withdrawal of defacto recognition does not always entail withdrawal of dejurerecognition:see, with regard to Latvia, Re Feivel Pikelriy's Estate, 32 BYIL, 1955-6, p. 288.
See 975 HC Debs., col. 723, 6 December 1979, and C. Warbrick, 'Kampuchea: Representation and Recognition', 30 ICLQ, 1981, p. 234. See also AFDI, 1980,p. 888.
" See above, p. 381.
91 424 HL Debs., col. 551, 15 October 1981.
See Azazh Kebbeda v. Italian Government, 9 AD, p. 93.
93 US reply brief in the Court of Appeals in Gold~vater~,.
Carter 444 US 996 (1979), quoted
in DUSPIL, 1979, pp. 143-4.

"

390

I N T E R N A T I O N A L LAW

Nevertheless, this was not to affect the application of the laws of theUnited States with respect to Taiwan in the context of US domestic law.94
To some extent in this instance the usual consequences of non-recognition
have not flowed, but this has taken place upon the background of a formal and deliberate act of policy. It does show how complex the topic ofrecognition has become.
The usual method of expressing disapproval with the actions of a particular government is to break diplomatic relations. This will adequately
demonstrate aversion as did, for example, the rupture in diplomatic relations between the UK and the USSR in 1927, and between some Arabcountries and the United States in 1967, without entailing the legal consequences and problems that a withdrawal of recognition would initiate.
But one must not confuse the ending of diplomatic relations with a withdrawal of recognition.
Since recognition is ultimately a political issue, no matter how circumscribed or conditioned by the law, it logically follows that, should a state
perceive any particular situation as justifying a withdrawal of recognition,
it will take such action as it regards as according with its political interests.

There has been developing since the 1930s a doctrine of non-recognition
where, under certain conditions, a factual situation will not be recognised
because of strong reservations as to the morality or legality of the actions
that have been adopted in order to bring about the factual situation. It isa doctrine that has also been reinforced by the principle that legal rights
cannot derive from an illegal situation (ex injuria jus non o r i t ~ r ) . ~ ~This approach was particularly stimulated by the Japanese invasionof Manchuria in 1931. The US Secretary of State declared in 1932 thatthe illegal invasion would not be recognised as it was contrary to the1928 Pact of Paris (the Kellogg-Briand Pact) which had outlawed war as
an instrument of national policy. The doctrine of not recognising any
situation, treaty or agreement brought about by non-legal means was" Taiwan Relations Act, Pub. L. 96-8 Stat. 22 USC 3301-3316, s. 4.
95 See e.g. Lauterpacht, Recognition, pp. 416-20, and Opperlheim4 Internatiorlal Law, pp. 183

ff. See also R. Langer, Scizl~reofTerritory, Princeton, 1947; Hackworth, Digest, 1101. I, p. 334;
I. Brownlie, International LUMJand the Use of Force by States, Oxford, 1963, chapter 25;
Dugard, Recognition, pp. 24 ff., and 81 ff., and Crawford, Creation ofstates, pp. 120 ff.
96 See e.g. Oppenheim's International Law, pp. 183-4, and the Namibia case, ICJ Reports,
1971, pp. 16,46-7; 49 ILR, pp. 2,36-7.

RECOGNITION

39l

named the Stimson doctrine after the American Secretary of State who
put it forward. It was reinforced not long afterwards by a resolution of theAssembly of the League of Nations stressing that League members should
not recognise any situation, treaty or agreement brought about by means
contrary to the League's Covenant or the Pact of ~ a r i s . ~ 'However, state practice until the Second World War was not encouraging. The Italian conquest of the Empire of Ethiopia was recognised andthe German takeover of Czechoslovakia accepted. The Soviet Union madea series ofterritorial acquisitions in 1940, ranging from areas of Finland to
the Baltic States (of Lithuania, Estonia and Latvia) and Bessarabia. These
were recognised de facto over the years by Western powers (though not by
the United ~ t a t e s ) . ' ~The doctrine was examined anew after 1945. Article 2(4) of the UN
Charter prohibits the threat or use of force inter alia against the territorial
integrity of states, while the draft Declaration on the Rights and Dutiesof States, 1949, emphasised that territorial acquisitions by states were not
to be recognised by other states where achieved by means of the threat or
use of force or in any other manner inconsistent with international law
and order. The Declaration on Principles of International Law, 1970, also
included a provision to the effect that no territorial acquisition resulting
from the threat or use of force shall be recognised as
and resolution
242 (1967) on the solution to the Middle East conflict emphasised 'theinadmissibility of the acquisition of territory by war'.loO
Rhodesia unilaterally proclaimed its independence in November 1965
and in the years of its existence did not receive official recognition fromany state at all, although it did maintain diplomatic relations with South
Africa and Portugal prior to the revolution of 1974. The day following
the Rhodesian declaration of independence, the Security Council passed a
resolution calling upon all states not to accord it recognition and to refrain" LNOJ, Sp. Supp no. 101, p. 8. This principle was reiterated in a number of declarations

subsequently: see e.g. 34 AJIL, 1940, Supp., p. 197. See also O'Connell, Ir~ternationalLaw,
p p 143-6.
" O'Connell, Interrlational Law, pp. 143-6.
99 See also article 11 of the Montevideo Convention on the Rights and Duties of States,
1933; article 17 of the Bogota Charter of the OAS, 1948, and article 52 of the Vienna
Convention on the Law ofTreaties, 1969. Note also article j ( 3 ) ofthe Consensus Definitionof Aggression, 1974, adopted by the General Assembly in resolution 3314 (XXIX).
loo See also Security Council resolutions 476 (1980) and 478 (1980) declaring purportedchanges in the status of Jerusalem by Israel to be ilull and void, and resolution 491 (1981)
stating that Israel's extension of its laws, jurisdiction and administration to the Golan
Heights was without international legal effect.

3g2

I N T E R N A T I O N A L LAW

from assisting it.''' The Council imposed selective mandatory economic
sanctions on Rhodesia and these were later made c o m p r e h e n ~ i v eSimi.~~~lar action was also taken with regard to the Bantustans, territories of South
Africa declared by that state to be independent.'03 The Security Council also adopted resolution 541 in 1983, which deplored the purported
secession of part of Cyprus occupied by Turkey in 1974 and termed the
proposed Turkish Cypriot state 'legally invalid'.lo4 I11 1990, the Security
Council adopted resolution 662, which declared the Iraqi annexation of
Kuwait 'null and void' and called on all states and institutions not torecognise the annexation.'05 The principle of non-recognition of title toterritory acquired through aggression in violation of international law
was also reaffirmed in the Brcko Inter-Entity Boundary award with regard
to aggression in ~ 0 s n i a . l ' ~The role of non-recognition as an instrument of sanction as well as ameans of pressure and a method of protecting the wronged inhabitants ofa territory was discussed more fully in the Advisory Opinion of the International Court of Justice in the Namibia case, 1971, dealing with South
Africa's presence in that territory. The Court held that since the continued
South African occupancy was illegal, member states of the United Nations
were obliged to recognise that illegality and the invalidity of South Africa's
acts concerning Namibia and were under a duty to refrain from any actions
implying recognition of the legality of, or lending support or assistanceto, the South African presence and administration."'Security Council resolution 216 (1965). See also Security Council resolutions 217 (19651,
277 (1970) and288 (1970).
lo' See e.g. Security Council resolutions 221 (1961), 232 (1966) and 253 (1968). See also
M. N. Shaw, Title to Territory in Africa, Oxford, 1986, p. 160; R. Zacklin, The Unitedvati ions and Rhodesia, Oxford, 1974, and J. Nkala, The United Ilrations, Ir~ternationalLaw
and the Rhodesian Crisis, Oxford, 1985.
lo' See e.g. General Assembly resolution 3116A and the Security Council statements of 21
September 1979 and 15 December 1981, Sham: Title to Territory, p. 149. See also J. Dugard,
International Law, A Sotltll African Perspective, Kenwyn, 1994, chapter 5.
lo4 See above, chapter 5, p. 212. See also Cyprtrs v. Turkey, European Court of Human Rights,
rudgment of 10 May2001, paras. 60-1; 120 ILR, p. 10.
lo5 See below, chapter 22, p. 1126.
lo6 36 ILM, 1997, pp. 396,422.
lo' ICJ Reports, 1971, pp. 16, 54, 56; 49 ILR, pp. 2, 44, 46. Non-member states of the UN
were similarly obliged, ibid. The non-recognition obligation did not extend, however, tocertain acts of a humanitarian nature the effect of which could only be ignored to thedetriment of the inhabitants of the territory, ibid., p. 56 and Cyprus v. T ~ ~ r k eEuropeanfi
Court of Human Rights, Judgment of 10 May 2001, paras. 90-8; 120 ILR, p. 10. See also
above, chapter 5, p. 212.

RECOGNITION393

The legal effects of recognition
In this section some of the legal results that flow from the recognition or
non-recognition of an entity, both in the international sphere and within
the municipal law of particular states, will be noted. Although recognition
may legitimately be regarded as a political tool, it is one that neverthelessentails important consequences in the legal field.

InternationallyIn the majority of cases, it can be accepted that recognition of a state or
government is a legal acknowledgement of a factual state of affairs. Nevertheless, it should not be assumed that non-recognition of, for example,
a state will deprive that entity of rights and duties before internationallaw, excepting, of course, those situations where it may be possible to saythat recognition is constitutive of the legal entity.
In general, the political existence of a state is independent of recognition by other states, and thus an unrecognised state must be deemedsubject to the rules of international law. It cannot consider itself free fromrestraints as to aggressive behaviour, nor can its territory be regarded as
terra nullius. States which have signed international agreements are entitled to assume that states which they have not recognised but which have
similarly signed the agreement are bound by that agreement. For example,
the United Kingdom treated the German Democratic Republic as boundby its signature of the 1963 Nuclear Test Ban Treaty even when the state
was not recognised by the UK.
Non-recognition, with its consequent absence of diplomatic relations,
may affect the unrecognised state in asserting its rights or other statesin asserting its duties under international law, but will not affect theexistence of such rights and duties. The position is, however, different
under municipal law.

Internally
Because recognition is fundamentally a political act, it is reserved to the
executive branch of government. This means that the judiciary must as
a general principle accept the discretion of the executive and give effectto its decisions. The courts cannot recognise a state or government. They
can only accept and enforce the legal consequences which flow from theexecutive's political decision, although this situation has become more

394

I N T E R N A T I O N A L LAW

complex with the change in policy from express recognition of governments to acceptance of dealings with such entities.
To this extent, recognition is constitutive, because the act of recognition
itself creates legal results within the domestic jurisdiction. In the United
Kingdom and the United States particularly, the courts feel themselves
obliged to accept the verdict of the executive branch of government as towhether a particular entity should be regarded as recognised or not. If theadministration has recognised a state or government and so informs the
judiciary by means of a certificate, the position ofthat state or government
within the municipal structure is totally transformed.
It may sue in the domestic courts and be granted immunity from suit incertain instances. Its own legislative and executive acts will be given effectto in the courts of the recognising state and its own diplomatic representatives will be able to claim the various immunities accorded to the official
envoys of a recognised state. In addition, it will be entitled to possession
in the recognising state of property belonging to its predecessor.
The U K " ~The English courts have adopted the attitude over many years that an entity
unrecognised by the Foreign Office would be treated before the courts as
if it did not exist and accordingly it would not be able to claim immunity
before the courts.lo9This meant in one case that ships ofthe unrecognised'Provisional Government of Northern Russia' would not be protected by
the courts from claims affecting them."' Similarly an unrecognised stateor government is unable to appear before the courts as a plaintiff in an
action. This particular principle prevented the revolutionary governmentof Berne in 1804 from taking action to restrain the Bank of Englandfrom dealing with funds belonging to the previous administration of thecity.'''The leading case in English law on the issue of effects of recognition ofan entity within the domestic sphere is Luther v. Sagor."2 This concerned
the operations and produce of a timber factory in Russia owned by theplaintiffs, which had been nationalised in 1919 by the Soviet government.
In 1920 the defendant company purchased a quantity of wood from theSee e.g. Talmon, 'Recognition o f Governments: pp. 275 ff.;Greig, 'Carl-Zeiss Case: and1. G. Merrills, 'Recognition and Construction', 20 ICLQ, 1971, p. 476.
lo' See e.g. Halsbury's Laws of England, 4th edn, London, 1977, vol. XL'III, p. 735.
'lo The Annette [l919] P. 105; 1 AD, p. 43.
The City ofBernev. The Bank ofEngland (1804) 9 Ves. Jun. 347.
' I 2 [I9211 1 KB 456; 1 AD, p. 47.
'OS"'

RECOGNITION

395

USSR and this was claimed in England by the plaintiffs as their property
since it had come from what had been their factory. It was argued by themthat the 1919 Soviet decree should be ignored before the English courts
since the United Kingdom had not recognised the Soviet government.
The lower court agreed with this contention and the matter then came to
the Court of Appeal.""In the meantime the UK recognised the Soviet government de facto
and the Foreign Office informed the Court of Appeal of this in writing.
The result was that the higher
court was bound to take note of the Soviet
decree and accordingly the plaintiffs lost their case, since a court must
give effect to the legislation of a recognised state or government. The
Court also held that the fact that the Soviet government was recognisedde facto and not de jure did not affect the issue. Another interesting pointis that since the Foreign Office certificate included a statement that theformer Provisional Government of Russia recognised by the UK had beendispersed during December 1917, the Court inferred the commencementof the Soviet government
from that date.
The essence of the matter was that the Soviet government was now accepted as the sovereign government of the USSR as from December 1917.
And since recognition once given is retroactive and relates back to the datethat the authority of the government was accepted as being established,
and not the date on which recognition is granted, the Soviet decree of1919 was deemed to be a legitimate act of a recognised government. Thiswas so even though at that date the Soviet government was not recognisedby the United Kingdom.
The purpose of the retroactivity p r o v i ~ i o n "is~ to avoid possible influence in the internal affairs of the entity recognised, since otherwise
legislation made prior to recognition might be rejected. However, thiswill depend always upon the terms of the executive certificate by which
the state informs its courts of the recognition. Should the Foreign Officeinsist that the state or government in question is to be recognised as asovereign state or government as of the date of the action, the courts
would be bound by this.
As is the case with legislation, contracts made by an unrecognised
government will not be enforced in English courts. Without the required
action by the political authorities, an unrecognised entity does not exist
as a legal person before the municipal courts.
11'
114[I9211 3 KB 532; 1 AD, p. 49.
See e.g. Oppenheimi International Laiv, p. 161, and Whiternail, Digest, vol. 11, pp. 728-45.

396

I N T E R N A T I O N A L LAW

The case of Luther v. Sagor suggested that in general the legal consequences of a de facto recognition would be the same as a de jure one. Thiswas emphasised in Haile Selassie v. Cable and Wireless Ltd ( N o . 2),11' but
regarded as restricted to acts in relation to persons or property in the
territory which the de facto government has been recognised as effectively
controlling.
In other words, a different situation would ensue with regard to persons
or property situated outside the territory ofthe state or government. In the
Haile Selassie case, the Emperor of Ethiopia was suing a British company
for money owing to him under an agreement. The problem was that when
the action was brought, the UK had recognised the Italian forces as thede facto authority in Ethiopia while Haile Selassie was still recognised as
the de jure sovereign. The Court held that since the case concerned a debt
recoverable in England and not the validity of acts with regard to persons
or property in Ethiopia, the de jure authority, Emperor Haile Selassie, wasentitled to the sum due from the company, and the de facto control of the
Italians did not affect this.
However, before the defendant's appeal was heard, the United Kingdom extended de jure recognition to the Italian authorities in Ethiopia.
The Court of Appeal accepted that this related back to, and was deemed
to operate as from the date of, the de facto recognition. Since this had occurred prior to the case starting, it meant that the Italian government was
now to be recognised as the de jure government of Ethiopia, before andduring the time of the hearing of the action. Accordingly, Haile Selassie
was divested of any right whatsoever to sue for the recovery of the money
owing.
This problem of the relationship between a de facto government and ade jure government as far as English courts were concerned, manifested
itself again during the Spanish Civil War.
~a private steamship regThe case of the Arantzazu ~ e n d i "concerned
istered in Bilbao in the Basque province of Spain. In June 1937, following
the capture of that region by the forces of General Franco, the opposing
Republican government issued a decree requisitioning all ships registeredin Bilbao. Nine months later the Nationalist government of Franco also
passed a decree taking control over all Bilbao vessels. In the meantime, theArantzaztl Mendi itself was in London when the Republican government
issued a writ to obtain possession of the ship. The owners opposed thiswhile accepting the Nationalists' requisition order.
[1939] 1 Ch. 182; 9 AD, p. 94.

[1939] AC 256; 9 AD, p. 60.

397

RECOGNITION

It was accepted rule of international law that a recognised state cannot be sued or otherwise brought before the courts of another state.
Accordingly, the Nationalists argued that since their authority had beenrecognised de facto by the UK government over the areas they actuallycontrolled, their decree was valid and could not be challenged in the
English courts. Therefore, the action by the Republican government must
be dismissed.
The case came before the House of Lords, where it was decided that
the Nationalist government, as the de facto authority of much of Spain
including the region of Bilbao, was entitled to be regarded as a sovereignstate and was able to benefit from the normal immunities which follow therefrom. Thus, the action by the Republican government failed.
The House of Lords pointed out that it did not matter that the territory over which the de facto authority was exercising sovereign powers
was from time to time increased or diminished."' This case marks thehigh-point in the attribution of characteristics to a de facto authority andcan be criticised for its over-generous assessment of the status of such anentity. l 8
The problems faced by the English court when the rights and obligations of a de juregovernment and a defacto government, claiming the same
territory, appear to be in conflict have been briefly noted. Basically, theactions of a de facto authority with regard to people and property within
this sphere of control will be recognised in an English court, but whereproperty is situated and recoverable in England, the de jure sovereign will
have precedence. A similarly complicated situation arises where the interests of two recognised de jure governments of the same state are involved,
as one supersedes the other. Problems can arise concerning the issue ofretroactivity, that is, how far the court will relate back actions of a de juregovernment, since recognition is normally retroactive to the moment of
inception of the particular state or government.
The matter was discussed in the Gdynia Anzeryka Linie v. Boguslawski
case."9 During the Second World War the Polish government-in-exile
stationed in London was recognised by the UK as the de jure government of Poland. However, on 28 June 1945 the communist provisional
government was established with effective control of the country and at
midnight on 5 July the UK recognised that government as the de jure government of Poland. A couple of days prior to this recognition, the Polish'I7'I8

See e.g. Lord Atkin, [I9391 AC 256,264-5.
See e.g. Lauterpacht, Recognition, pp. 288-94.

""19531

AC 11; 19 ILR,p. 72.

398

I N T E R N A T I O N A L LAW

government-in-exile made an offer to Polish seamen of compensation in
the event of leaving the merchant navy service. The money was to be paidby the particular employers to seamen not wanting to work for the communist provisional government. In the Bogusluwski case the employers
refused to pay the compensation to seamen requesting it, and argued that
the UK recognition de jure of the provisional government was retroactive
to 28 June, this being the date that the government effectivelytook controlof the country. If this was the case, then acts of the government-in-exile
after 28 June ceased to be of effect and thus the offers of compensation
could not be enforced in the English courts.
The House of Lords emphasised the general proposition that recognition operates retroactively. However, they modified the statement by
declaring that the courts had to give effect not only to acts done by the
new government after recognition, but also to acts done before the recognition 'in so far as those acts related to matters under its control at thetime when the acts were done'.''' It was stated that while the recognitionof the new government had certain retroactive effects, the recognitionof the old government remained effective down to the date when it was
in fact withdrawn. Problems might have arisen had the old government,
before withdrawal of recognition, attempted to take action with respect
to issues under the control of the new government. However, that was not
involved in this case.
In other words, and in the circumstances of the case, the principle ofretroactivity of recognition was regarded as restricted to matters within
the effective control of the new government. Where something outside
the effective control of the new government is involved, it would appear
that the recognition does not operate retroactively and that prior to theactual date of recognition one would have to accept and put into effectthe acts of the previous de jure government.
This couldlead to many complicated situations, especiallywhere a court
is faced with conflicting courses of action, something which is not hard toenvisage when one de jure government has been superseded by another. It
could permit abuses of government such as where a government, knowing
itself to be about to lose recognition, awards its supporters financial orother awards in decrees that may be enforced in English courts. Whatwould happen if the new government issued contrary orders in an attempt
to nullify the effect of the old government's decrees is something that was
not examined in the Boguslawski case.

'" Lord Reid, [1953] AC 11,44-5; 19 ILR, pp. 81, 83.

RECOGNITION

399

Another case which came before the courts in the same year was Civil~ ~ it similarly
Air Transport Inc. v. Central Air Transport ~ o r p o r a t i o n , 'and
failed to answer the question mentioned above. It involved the sale ofaircraft belonging to the nationalist government of China, which had been
flown to the British Crown Colony of Hong Kong. Such aircraft were soldto an American company after the communist government establishedeffective control over the country but before it had been recognised by
the UK. The Court accepted that the nationalist government had been
entitled to the aircraft and pointed out that:
retroactivity of recognition operates to validate acts of a de fncto Government which has subsequently become the new de jure Government, andnot to invalidate acts of the previous de jure G ~ v e r n m e n t . ' ~ 'It is to be noted that the communist government did not attempt tonullify the sale to the American company. Had it done so, a new situation
would have been created, but it is as yet uncertain whether that would
have materially altered the legal result.
The general doctrine adhered to by the UK with regard to recognition(and now diplomatic dealings) is that it will be accorded upon the evidenceof effective control. It is used to acknowledge factual situations and not
as a method of exhibiting approval or otherwise. However, this is not so
in all cases and there are a number of governments in effective control of
their countries and unrecognised by the UK. One major example was theformer German Democratic Republic. Since the prime consequence of
non-recognition is that the English courts will not give effect to any lawsof an unrecognised entity, problems are thus likely to arise in ordinaryinternational political and commercial life.
The issue came before the courts in the Carl Zeiss Stiftungv. Rayner and
Keeler Ltd (No. 2) case.'23 It concerned the Carl Zeiss foundation which
was run by a special board, reconstituted in 1952 as the Council of Gera.
The problem was that it was situated in the German Democratic Republic(GDR) and the establishment of the Council of Gera as the governing
body of the Carl Zeiss foundation was effected by a reorganisation of
local government in the GDR. When Carl Zeiss brought a claim before
the English courts, the issue was at once raised as to whether, in view of the
UK non-recognition of the GDR, the governing body of the foundation[I9531 AC 70; 19 ILR, pp. 85, 93, 110. See also F. A. Mann, 'Recognition of Sovereignty:
16 MLR, 1953, p. 226.
l''
[I9531 AC 70,9O; 19 ILR, pp. 110, 113.
123 [I9671 AC 853; 43 ILR, p. 42. See also Greig, 'Carl-Zeiss Case:
12'

400

I N T E R N A T I O N A L LAW

could be accepted by the courts. The Court ofAppeal decided that since theForeign Office certified that the UK recognised 'the State and Governmentof the Union of Soviet Socialist Republics as de jure entitled to exercise
governing authority in respect of that zone"24 (i.e. the GDR, being theformer Soviet zone of occupation), it was not possible to give effect to any
rules or regulations laid down by the GDR. The House of Lords, however,
extricated the English courts system from a rather difficult position bymeans of an elaborate fiction.
It stated that as a Foreign Office certificate is binding on the courts as
to the facts it contains, it logically followed that the courts must recognise
the USSR as the de jure governing authority of East Germany, irrespectiveof the creation of the GDR. The courts were not entitled to enter into a
political examination of the actual situation but were obliged to accept
and give effect to the facts set out in the Foreign Office certificate. Thus,
the Soviet Union was the de jure sovereign and the GDR government mustbe accepted as a subordinate and dependent body.
Accordingly, the Court could recognise the existence of the Carl Zeiss
Stiftung by virtue of the UK recognition of the de jure status of the Soviet
Union, the GDR as an administrative body being relevant only as a legal
creature of the USSR.
The problem brought out in the Carl Zeiss case and sidestepped there
was raised again in a series of cases concerning Rhodesia, following theunilateral declaration of independence by the Smith regime in 1965.
Basically, if a government or state which exercises effective control over its
own territory is unrecognised by the UK a strict enforcement of the 'no
recognition, no existence' rule could lead to much hardship and inconvenience. Accordingly, in Adamsv. Adams'" a Rhodesian divorce decree was
not recognised in an English court. However, in Hesperides Hotels Ltd v.
Aegean Turkish ~ o l i d a ~ s , 'concerning"
an action in trespass with respect
to hotels owned by Greek Cypriots but run by Turkish Cypriots following
the Turkish invasion of 1974, Lord Denning stated obiter that he believedthat the courts could recognise the laws and acts of an unrecognised bodyin effective control of territory, at least with regard to laws regulating the
day-to-day affairs of the people.12' It is certainly an attractive approach,"'""1966]
1 Ch. 596; 43 ILR, p. 25.
[1971] P. 188; 52 ILR, p. 15.
[I9781 QB 205; 73 ILR, p. 9. See also M. N. Shaw, 'Legal Acts of an Unrecognised Entity',
94 LQR, 1978, p. 500.
[I9781 QR 205, 218; 73 ILR, pp. 9, 15. See also Steyn J, Gur Corporation v. Trust Rank ofAfrica Ltd [I9861 3 IVLR 583, 589,592; 75 ILR, p. 675.

'"

RECOGNITION

401

provided it is carefully handled and strictly limited to determinations ofa humanitarian and non-sovereign nature.128In Caglar v. Bellingham, it
was noted that while the existence of a foreign unrecognised government
could be acknowledged in matters relating to commercial obligations or
matters of private law between individuals or matters of routine administration such as registration of births, marriages and deaths, the courts
would not acknowledge the existence of an unrecognised state if to doso would involve them in acting inconsistently with the foreign policy or
diplomatic stance of the UK.'" In many cases, however, the problems
with regard to whether an entity is or is not a 'state' arise in connection
with the interpretation of a particular statutory provision. The approachof the courts has been to focus upon the construction of the relevant
instrument rather than upon the Foreign Office certificate or upon any
definition in international law of statehood.13'
Some ofthe consequential problems ofnon-recognition were addressedin the Foreign Corporations Act 1991. This provides that a corporation
incorporated in a territorynot recognised by the UK government as a state
would be regarded as having legal personality within the UK where thelaws ofthat territory were applied by a settled court system. In other words,
the territory would be treated for this purpose as if it were a recognised
state, thereby enabling its legislation to be applied in this circumstance on
the normal conflict of rules basis. The point should, however, be stressedthat the legislation was not intended at all to impact upon recognition
issues as such.'''Since the UK decision to abandon recognition of governments in 1980,
the question arises as to the attitude of the courts on this matter. In
See further the Naniihia case, ICJ Reports, 1971, pp. 16,56; 49 ILR, pp. 2,46, and Cyprus
v. Turkey, European Court of Human Rights, Judgment of 10 May 2001, paras. 90-8; 120
ILR, p. 10.
108 ILR, p. 510, at 534.
13' See e.g. Re Al-Fin Corporationi Patent [I9701 Ch. 160; 52 ILR, p. 68; Reelv. Holder [ 19811
1 WLR 1226; 74 ILR, p. 105 and Caglar v. Bellingham 108 ILR, p. 510 at 528, 530 and
539, where the statutory term 'foreign state' was held to mean a state recognised by
the UK.
13' This legislatio~l
was adopted essentially to deal with the situation following Arab Monetary
Fund v. Hashim (No. 3 ) [1991] 2 WLR, whereby the legal personality of a company notincorporatedin a territory recognised as a state wouldnot be recognisedin E n g l i s h l a ~See~.
UKMIL, 62 BPIL, 1991, pp. 565-8. See also the decision of the Special Commissioners in
Cuglar v. Bellinghanz, 108 ILR, p. 510 at 530, where it was emphasised that the intention ofpolicy on recognition, but to sever
the legislation was not to affect at all the go~~ernment's
the connectioil with public international law and deal with issues of private international
12'

'"

402

I N T E R N A T I O N A L LAW

particular, it appears that they may be called upon to examine the natureof the UK government's dealings with a new regime in order to determine
its status for municipal law purposes.132
In Gur Corporatioiz v. Trust Baizk of ~frica'" the Court was in fact
called upon to decide the status of Ciskei. This territory, part of South
Africa, was one of the Bantustans granted 'independence' by South Africa.
This was accomplished by virtue of the Status of Ciskei Act 1981. The
preliminary issue that came before the Court in a commercial dispute
was whether Ciskei had locus standi to sue or be sued in England. The
Foreign and Commonwealth Office certified that Ciskei was not recognised as an independent sovereign state either de facto or de jure andthat representations were made to South Africa in relation to mattersoccurring in Ciskei. The Court of Appeal held that it was able to take account of such declarations and legislation as were not in conflict with thecertificates.
The effect of that, noted Lord Donaldson, was that the Status of Ciskei
Act 1981 could be taken into account, except for those provisions declaring
the territory independent and relinquishing South African sovereignty.
This led to the conclusion that the Ciskei legislature was in fact exercising power by virtue of delegation from the South African a~thorities.'"~Accordingly, the government of Ciskei could sue or be sued in the English courts 'as being a subordinate body set up by the Republic of South
Africa to act on its behalf'.13' Clearly the Court felt that the situation
was analogous to the Carl Zeiss case. Whether this was in fact so is an
open question. It is certainly open to doubt whether the terms of thecertificates in the cases were on all fours. In the Gur case, the executive
was far more cautious and non-committal. Indeed, one of the certificates
actually stated that the UK government did not have a formal position regarding the exercise of governing authority over the territory of ~ i s k e i , ' ~ ~whereas in Carl Zeiss the certificate noted expressly that the USSR wasrecognised as de jure entitled to exercise governing authority in respectof the territory (the G D R ) . ' ~The~ gap was bridged by construction andinference.
See 409 HL Deb., cols. 1097-8 and Symmons, 'Unlted l n g d o m Abolltlon', pp. 254-60.
[I9871 1 QB 599; 75 ILR, p. 675.
134 [I9871 1 QB 599,623; 75 ILR, p. 696.
[I9871 1 QB 599, 624. See also Nourse LJ, dud., pp. 624-66; 75 ILR, pp. 696-9.
136 [I9871 1 QB 599,618-19; 75 ILR, p. 690.
li7 [I9661 1 Ch. 596; 43 ILR, p. 25.
13'

lii

RECOGNITION

403

More widely, it is unclear to what extent the change in policy on recognition of governments has actuallyled to a change in attitude by the courts.
There is no doubt that the attitude adopted by the government in certifying whether or not diplomatic dealings were in existence with regard
to the entity in question is crucial. An assertion of such dealing would,
it appears, be determinative.'" The problem arises where the Foreign
Office statement is more ambiguous than the mere assertion of dealings
with the entity. The consequence is that a greater burden is imposed on
the courts as an answer as to status is sought. On the one hand, the Gurcase suggests that the courts are not willing to examine for themselves therealities of any given situation, but would seek to infer from the terms ofany certificate what the answer ought to be.'39 o n the other hand, Hobhouse J in the High Court in Republic of Somalia v. Woodhouse Draketook' the wider view that in deciding whether aand Carey (Suisse) S A ~ ~regime was the government of a state, the court would have to take into
account the following factors: (a) whether it is the constitutional government of the state; (b) the degree, nature and stability of administrative
control, if any, that it of itself exercises over the territory of the state; (c)whether the UK government has any dealings with it, and if so the natureof those dealings; and (d) in marginal cases, the extent of internationalrecognition that it has as the government of the state.141 Part of the answer as to why a different emphasis is evident is no doubt due to the factthat in the latter case, there were competing bodies claiming to be thegovernment of Somalia and the situation on the ground as a matter offact was deeply confused. It should also be noted that in the Republic ofSomalia case, the court took the view that Foreign Office statements were
no more than part ofthe evidence in the case, although likely to be the best
evidence as to whether the government had dealings with the entity inquestion.'4'
See e.g. the Arantzazu Mendi [I9391 AC 256, 264; 9 AD, p. 60, and Gur Corporation v.
Trust Bank ofAfiica [I9871 1 QB 599, 625; 75 ILR, p. 675. See also Republic of Somalia v.
Woodhot~seDrake and Carey (Suisse) SA [1993] QB 54, 65-6; 94 ILR, p. 620.
See e.g. F. A. Mann, 'The Judicial Recognition of an Unrecognised State', 36 ICLQ, 1987,
p. 349, and Beck, 'A South African Homeland Appears in the English Court: Legitimationof the Illegitirnate?', 36 ICLQ, 1987, p. 350.
140 119931 QB 54; 94 ILR, p. 608.
'" 119931 QB 54,68; 94 ILR, p. 622.
14' 119931 QB 54, 65; 94 ILR, p. 619. This was reaffirmed in Sierra Leone Telecornnlunicutions
Co. Ltd T,. Barclays Bank [I9981 2 All ER 821; 114 ILR, p. 466. See also K. Reece Thornas,'Non-recognition, Personality and Capacity: The Palestine Liberation Organisation and
the Palestine Authority in English Law', 29 Anglo-American Laiv Revie~v,2000, p. 228.

13'

404

I N T E R N A T I O N A L LAW

The USAThe situation in the United States with regard to the recognition or nonrecognition of foreign entities is similar to that pertaining in the UK, withsome important differences. Only a recognised state or government canin principle sue in the US court~.'~"his applies irrespective ofthe state of
diplomatic relations, providing there is no war between the
HOWever, an unrecognised state or government may in certain circumstances
be permitted access before the American courts. This would appear todepend on the facts of each case and a practical appreciation of the entity
in q ~ e s t i 0 n .Forl ~ ~example, in Transportes Aeros de Angola v. on air,'^^ it
was held that in the particular circumstances where the US State Department had clearly stated that allowing the plaintiff (a corporation ownedby the unrecognised government of Angola) access to the Court would
be consistent with the foreign policy interests of the United States, thejurisdictional bar placed upon the Court would be deemed to have been
lifted.
As in the UI<, a declaration by the executive will be treated as binding
the courts, but in the USA the courts appear to have a greater latitude.
In the absence of the 'suggestion' clarifying how far the process of nonrecognition is to be applied, the courts are more willing than their UK
counterparts to give effect to particular acts of an unrecognised body.
Indeed, in the Carl Zeiss case Lords Reid and Wilberforce referred inapproving terms to the trend evident in decisions of US courts to giverecognition to the 'actual facts or realities found to exist in the territory inquestion', in the interests of justice and common sense. Such recopition
did not apply to every act, but in Lord Wilberforce's words, it did apply
to 'private rights, or acts of everyday occurrence, or perfunctory acts ofadmini~tration:'~~H OW far this extends, however, has never been precisely
defined.
It was the difficulties engendered by the American Civil War that firststimulated a reappraisal of the 'no recognition, no existence' doctrine. It
was not possible to ignore every act of the Confederate authorities and
See e.g. Repllblic of Vietnam v. Pjzer 556 F.2d 892 ( 1 9 7 7 ) ;94 ILR, p. 199.
BLIILCO
Nacional de Cuba V. Sabbatino 376 US 398,412; 35 ILR, p. 2 and Nutiorzal Oil
Corporation v. Libyan S u n Oil Co. 733 F.Supp. 800 ( 1 9 9 0 ) ;94 ILR, p. 209.
14' See above, p. 389, regarding Taiwan after 1 January 1979. See also Wtllfsohn v. Russian
Republic234 NY 372 ( 1 9 2 4 ) ;2 AD, p. 39.
'46 544 FSupp 8 5 8 , 8 6 3 - 4 ( 1 9 8 2 ) ;94 ILR, pp. 202,208-9.
719671 AC 853,954; 43 ILR, pp. 2 3 , 6 6 .
'43

14"ee

'"

RECOGNITION

405

so the idea developed that such rules adopted by the Confederate states
as were not hostile to the Union or the authority of the Central Government, or did not conflict with the terms of the US Constitution, would
be treated as valid and enforceable in the courts system.148The doctrine
was developed in a case before the New York Court of Appeals, when, discussing the status of the unrecognised Soviet government, Judge Cardozo
noted that an unrecognised entity which had maintained control over its
territory, 'may gain for its acts and decrees a validity quasi-governmental,
if violence to fundamental principles of justice or to our public policy
might otherwise be done'.149
This thesis progressed rapidly in the period immediately preceding
the American recognition of the USSR and led in Salimoff v. Standard
Oil Co. of New ~orklj'to the enforcement of a Soviet oil nationalisation
decree, with the comment that: 'to refuse to recognise that Soviet Russia
is a government regulating the internal affairs of the country, is to give to
fictions an air of reality which they do not deserve'.
This decision, diametrically opposed to the Luther v. Sagorapproach,'51
constituted a step towards the abolition of differences between the judicial
treatment of the acts of recognised and unrecognised governments.
However, the limits of this broad doctrine were more carefully definedin The ~ a r e t , lwherej ~ the Court refused to give effect to the nationalisation of an Estonian ship by the government of the unrecognised Soviet Republic of Estonia. However, the ship in dispute was located in an
American port at the date of the nationalisation order, and there appears
to be a difference in treatment in some cases depending upon whether
the property was situated inside or outside the country concerned.
One can mention, in contrast to The Maret, the case of Uprightv. Mercury Business ~ a c h i n e s , in
' ~ ~which the non-recognition of theGerman Democratic Republic was discussed in relation to the assignment of a bill to the plaintiff by a state-controlled company of the GDR.
The judge of the New York Supreme Court declared, in upholding theplaintiff's claim, that a foreign government, although unrecognised by the
executive:'" See e.g. Texasv. IVhite 74 US 700 (1868).
Sokoloffv. Natzonal Clty Bank o f N e w York 239 NY 158 (1924); 2 AD, p. 44.
262 NY 220 (1933); 7 AD, p p 22,26.
[I9211 1 KB 456; 1 AD, p. 47; above, p. 394.
li'
145 F.2d 431 (1944); 12 AD, p. 29.
153 213 NYS (2d) 417 (1961); 32 ILR, p. 65.
149
liO
151

406

I N T E R N A T I O N A L LAW

may nevertheless have de facto existence which is judicially cognisahle. The
acts of such a de facto government may affect private rights and obligations
arising either as a result of activity in, or with persons or corporations
within, the territory controlled by such defacto government.

However, the creation ofjudicial entities by unrecognised states will not
be allowed to circumvent executive p olicy. In Kunstsaininlungen zu Tlreinzar
v. E l i ~ o f o n , 'the
~ ~ KZW was an East German governmental agency until
1969, when it was transformed into a separate juristic person in order toavoid the problems relating to unrecognised states in the above litigation.
This concerned the recovery of pictures stolen from a museum during theAmerican occupation of Germany.
As a branch of an unrecognised state, the KZW could not of course
be permitted to sue in an American court, but the change of status in1969 was designed to circumvent this. The Court, however, refused toaccept this and emphasised that to allow the KZW to intervene in thecase 'would render our government's non-recognition of the German
Democratic Republic a meaningless gesture'.155Further, in Autocephalous
Church of Cyprus v. Goldberg, the Court of Appeals held that it would notgive effect to confiscatory decrees adopted by the unrecognised 'Turkish
Federated State of Cyprus', later called the 'Turkish Republic of Northern
Cyprus'.'j6
In Ministry of Defense of the Islamic Republic of Iran v. ~ould,lj'the
Court was faced with an action in which the unrecognised Iranian government sought to enforce an award. However, the US intervened andfiled a statement of interest supporting Iran's argument and this provedof significant influence. This general approach was reinforced in National
Petrochemicalv. The M/T Stolt sheaf;'" where the Court stressed that theexecutive must have the power to deal with unrecognised governments
and that therefore the absence of formal recognition did not necessarily
result in a foreign government being barred from access to US courts.'j9

lii

15'

358 FSupp 747 (1972); 61 ILR, p. 143.
358 F.Supp. 747, 757; 61 ILR, p. 154. See also Federal Republic of Germany\,. Elicofon, 14
ILM, 1976, p. 806, following the US recognition ofthe GDR in which KZI1'was permitted
to intervene in the litigation in progress. See also Transportes Aereos de Angola v. Ronair
544 F.Supp. 858.
917 F.2d 278 (1990); 108 ILR, p. 488.
1988 Iranian Assets Litig. Rep. 15, 313. See also 82 AJIL, 1988, p. 591.
li9
Ibid., p. 554.
860 F.2d 551 (1988).

RECOGNITION

407

However, where the executive has issued a non-recognition certificate
and makes known its view that in the instant case the unrecognised party
should not be permitted access to the courts, the courts appear very willingto- .
It is somewhat difficult to reconcile the various American cases or todetermine the extent to which the acts of an unrecognised state or government may be enforced in the courts system of the United States. But
two factors should be particularly noted. First of all, the declaration of
the executive is binding. If that intimates that no effect is to be given toacts of the unrecognised entity, the courts will be obliged to respect this.
It may also be the case that the State Department 'suggestions' will include some kind of hint or indication which, while not clearly. expressed,
may lead the courts to feel that the executive is leaning more one way
than another in the matter of the government's status, and this may influence the courts. For example, in the ~ a l i r n o f l 'case~ ~ the terms of thecertificate tended to encourage the court to regard the Soviet government as a recognised government, whereas in the case of The M ~ 7 r e t ' ~ ~the tone of the executive's statement on the Soviet Republic of Estonia
was decidedly hostile to any notion of recognition or enforcement of its
decrees.
The second point is the location of the property in question. There is atendency to avoid the enforcement of acts and decrees affecting property
situated outside the unrecognised state or government and in any eventthe location of the property often introduces additional complications as
regards municipal law provision.163
There is some uncertainty in the United States as to the operationof the retroactivity doctrine, particularly as it affects events occurringoutside the country. There is a line of cases suggesting that only those actsof the unrecognised government performed in its own territory could
be validated by the retroactive operation of recognition'64 while, on the
See e.g. Republic of Panama v. Republic National Bank of N e w York 681 F.Supp. 1066
( 1 9 8 8 ) andRept~blicofPanattzav.Citizens &Sot~tlzernIrzterrzationalBarzk682 F.Supp. 1144
( 1 9 8 8 ) .See also T. Fountain, 'Out From the Precarious Orbit of Politics: Reconsidering
Recognition and the Standing of Foreign Governments to Sue in US Courts', 29 Va. JIL,
1989, p. 473.
161 262 NY 220 ( 1 9 3 3 ) ;7 AD, p. 22.
162 145 F.2d 431 ( 1 9 4 4 ) ;12 AD, p. 29.
16'
See e.g. Civil Air Transportlr~c,v. Central Air Transport Corporation [I9531 AC 7 0 ; 19 ILR,
p. 85.
'64 See e.g. Lehigh Valley Railroad Co. v. Russia 21 F.2d 396 ( 1 9 2 7 ) ;4 AD, p. 58.
16"

408

I N T E R N A T I O N A L LAW

other hand, there are cases illustrating the opposite proposition decided
by the Supreme court.16'
Suggestions for further reading
H. Lauterpacht, Recognition in International Law, Cambridge, 1947
S. D. Murphy, 'Democratic Legitimacy and the Recognition of States and Governments', 48 ICLQ, 1999, p. 545
S. Talmon, Recognition of Governments in International Law, Oxford, 1998
See e.g. USv. Pink315 US 203 (1942);1 0 A D , p . 48, and US v. Relrnont301 US 324 ( 1 9 3 7 ) ;8 AD, p. 34.

Territory

The concept of territory in international law

International law is based on the concept of the state. The state in its turnlies upon the foundation of sovereignty, which expresses internally thesupremacy of the governmental institutions and externally the supremacyof the state as a legal person.'
But sovereignty itself, with its retinue of legal rights and duties, isfounded upon the fact of territory. Without territory a legal person cannot be a state.2 It is undoubtedly the basic characteristic of a state andthe one most widely accepted and understood. There are currently some
200 distinct territorial units, each one subject to a different territorial
sovereignty and jurisdiction.
Since such fundamental legal concepts as sovereignty and jurisdiction
can only be comprehended in relation to territory, it follows that the legal nature of territory becomes a vital part in any study of internationallaw. Indeed, the principle whereby a state is deemed to exercise exclusive power over its territory can be regarded as a fundamental axiom ofclassical international law.' The development of international law upon
the basis of the exclusive authority of the state within an accepted territorial framework meant that territory became 'perhaps the fundamental
See e.g. Oppeillleim's International Law (eds. R. Y.Jennings and A. D. Watts), 9th edn,
London, 1992, chapter 5; R. Y. Jennings, The Acquisition o f Territory in International Law,
Manchester, 1963; J.H. W7.Verzijl, International Luiu in Historical Perspective, Leiden, 1970,
vol. 111, pp. 297 ff.; Nguyen Quoc Dinh, P. Daillier and A. Pellet, Droitblternational Public,
7th edn, Paris, 2002, pp. 464 ff. and pp. 529 ff.; M. N. Shaw, 'Territory in International
Law: 13 Netherlands YIL,1982, p. 61; N. Hill, Claims to Territory in Internatiorlal Law andRelations, London, 1945; J. Gottman, The Signi'ficance of Territory, Charlottesville, 1973;
S. Akweenda, International Law and the Protection of Namibia's Territorial Integrity, The
Hague, 1997; S. P. Sharma, Territorial Acqui~ition,Disputes arld Irlternational Law, The
Hague, 1997, and W. Schoenborn, 'La Nature Juridique du Territoire', 30 HR, 1929, p. 85.
See Oppenheim's International Law, p. 563.
See L. Delbez, 'Du Territoire dans ses Rapports avec 1'Etat: 39 Revue Generule de Droit
International Public, 1932, p. 46. See also Hill, Claims to Territory, p. 3.

410

I N T E R N A T I O N A L LAW

concept of international law'.4 Most nations indeed developed through aclose relationship with the land they inhabited.5
One may note the central role ofterritory in the scheme ofinternationallaw by remarking on the development of legal rules protecting its inviolability. The principle of respect for the territorial integrity of states is wellfounded as one of the linchpins of the international system, as is the norm
prohibiting interference in the internal affairs of other states6 A numberof factors, however, have tended to reduce the territorial exclusivity ofthe state in international law. Technological and economic changes have
had an impact as interdependence becomes more evident and the riseof such transnational concerns as human rights and self-determination
have tended to impinge upon this e x c l u ~ i v i tThe
~ . ~ growth of international organisations is another relevant factor, as is the development of
the 'common heritage' concept in the context of the law of the sea and air
lawe8Nevertheless, one should not exaggerate the effects upon international law doctrine today of such trends.qerritoria1 sovereignty remains
as a key concept in international law.
Since the law reflects political conditions and evolves, in most cases,in harmony with reality, international law has had to develop a series ofrules governing the transfer and control of territory. Such rules, by thevery nature of international society, have often (although not always) had
the effect of legitimising the results of the exercise of power. The lack of astrong, central authority in international law has emphasised, even morethan municipal legal structures, the way that law must come to terms withpower and force.
The rules laid down by municipal legislation and judicial decisions
regarding the transfer and control of land within a particular state areusually highly detailed, for they deal with one of the basic resources
D. P. O'Connell, International Law, 2nd edn, London, 1970, vol. I, p. 403. See also Jennings,
Acquisition, p. 87, and Judge Huber, The Island ofPalvzas case, 2 RIAA, pp. 829,838 (1928).
See generally, Gottman, Significance.
See e.g. articles 2(4) and 2(7) of the UN Charter; the 1970 Declaration on Principles
of International Law adopted by the UN General Assembly, resolution 2625 (XXV), andarticle 1 of the 1974 Consensus Definition of Aggression adopted by the General Assembly,
resolution 3314 (XXIX).
See e.g. R. Falk, 'A New Paradigm for International Legal Studies: Prospects and Proposals:
84 Yale Latv Journal, 1975, pp. 969, 973, 1020. See also H. Lauterpacht, International Law
arid Hurnari Rights, London, 1950, and C. W. renks, The Cornnzon Law ofMankind, London,
1958.
See e.g. the Treaty on Outer Space, 1967 and the Convention on the Law of the Sea, 1982.
See also Shaw, 'Territory', pp. 65-6; below, p. 453.
"ee e.g. the Asylnrn case, ICJ Reports, 1950, pp. 266,275; 17 ILR, pp. 280, 283.

''

TERRITORY

411

and wealth-creating factors of the nation. Land law has often reflected
the power balance within a society, with feudal arrangements being succeeded by free market contracts and latterly the introduction of comprehensive provisions elaborating the rights and duties of landlords
and their tenants, and the development of more sophisticated conveyancing techniques. A number of legal interests are capable of existingover land and the possibility exists of dividing ownership into different
segments.10
The treatment of territory in international law has not reached thissophisticated stage for a number of reasons, in particular the horizontal
system of territorial sovereignty that subsists internationally as distinct
from the vertical order ofland law that persists in most municip a1systems.
One point that flows from this and is basic to an understanding ofterritory in international and domestic law, is the difference in the consequences that result from a change in the legal ownership of land in
illterllational law and in municipal law.
In international law a change in ownership of a particular territory
involves also a change in sovereignty, in the legal authority governing thearea. This means that the nationality of the inhabitants is altered, as is
the legal
systemunder which they live, work and conduct their relations,.
whereas in municipal law no such changes are involved in an alterationof legal ownership. Accordingly international law must deal also with all
the various effects of a change in territorial sovereignty and not confine
its attentions to the mere mechanism of acquisition or loss of territory.ll

Territorial sovereignty
Judge Huber noted in the Island of Palmas case12 that:sovereignty in relation to a portion of the surface of the globe is the legal
condition necessary for the inclusion of such portion in the territory of any
particular state.

Brierly defined territorial sovereignty in terms of the existence of rights
over territory rather than the independence ofthe state itself or the relationof persons to persons. It was a way of contrasting 'the fullest rights overl o See e.g. R. Megarry and H. W. R. Wade, The Law ofReal Property, 5th edn, London, 1984.
l 1 See below, chapter 17, dealing with the problems of state succession.
l 2 2 RIAA, pp. 829, 838 (1928); 4 AD, pp. 103, 104. See also the Report of the Commissionof Jurists in the Aaland Islands case, LNOJ, Supp, no. 3, p. 6.

412

I N T E R N A T I O N A L LAW

territory known to the law' with certain minor territorial rights, such asleases and servitudes.l"erritoria1 sovereigntyhas a positive and a negative
aspect. The former relates to the exclusivity of the competence of the state
regarding its own territory,14 while the latter refers to the obligation toprotect the rights of other states."
The international rules regarding territorial sovereignty are rooted in
the Roman law provisions governing ownership and possession, and theclassification of the different methods of acquiring territory is a direct
descendant of the Roman rules dealing with property.16 This has resulted
in some confusion. Law, being so attached to contemporarylife, cannot beeasily transposed into a different cultural milieu.17 And, as shall be noted,
the Roman method of categorising the different methods of acquiring
territory faces difficulties when applied in international law.
The essence of territorial sovereignty is contained in the notion of title.
This term relates to both the factual and legal conditions under which
territory is deemed to belong to one particular authority or another. In
other words, it refers to the existence of those facts required under international law to entail the legal consequences of a change in the juridical
status of a particular territory.'' As the International Court noted in the
Burkina Faso/Mali case,19 the word 'title' comprehends both any evidence
which may establish the existence of a right and the actual source of thatright."One interesting characteristic that should be noted and which again
points to the difference between the treatment of territory under international law and municipal law is that title to territory in international law
is more often than not relative rather than a b ~ o l u t e . ~Thus,'a court, in
deciding to which of contending states a parcel of land legally belongs, willI'

The Law ofNations, 6th edn, Oxford, 1963, p. 162.

l 4 See Judge Huber, Islai~dofPa11nas case, 2 R I M , pp. 829, 838 (1928); 4 AD, pp. 103, 104.

2 RIAA, p. 839. See also Shaw, 'Territory', pp. 73 ff., and S. Bastid, 'Les Probl6mes Territoriaux dans la Jurisprudence de la Cour Internationale', 107 HR, 1962, pp. 360, 367.
l6 See e.g. Schoenborn, 'Nature ruridique: p. 96. See also O'Connell, Internatioizal Law,
pp. 403-4. Note in particular the Roman law distinction between irnperiunz and dorniiliirii1:
Shaw. 'Territorv:, . v.
. 74.
l 7 See, as regards the theories concerning the relationship between states and territory, Sha~v,'Territory', pp. 75-9.
"' eee.g. Jennings, Acqtrisitiorz, p. 4. See also I. Brownlie, Principles of Public InternationalLaw, 5th edn, Oxford, 1998, pp. 120-1.
l9 ICJ Reports, 1986, pp. 554,564; 80 ILR, pp. 440,459.
" This was reaffirmed in the Land, Island and Maritime Frontier (El Salvador/Hond~rras)
case, ICJ Reports, 1992, pp. 351, 388; 97 ILR, pp. 266, 301.
See e.g. the Eastern Greenland case, PCIJ, Series AIB, No. 53, 1933, p. 46; 6 AD, p. 95.

"

TERRITORY

4l3

consider all the relevant arguments and will award the land to the state
which relatively speaking puts forward the better (or best) legal case.22
Title to land in municipal law is much more often the case of deciding
in uncertain or contentious circumstances which -party. complies with thelegal requirements as to ownership and possession, and in that sense title
is absolute. It is not normally a question of examining the facts to see
which claimant can under the law put forward a better claim to title. Further, not all rights or links will amount to territorial sovereignty. Personalties of allegiance may exist but these may not necessarily lead to a findingof sovereignty.23The special characteristics of the territory need to betaken into account, as does the particular structure of the sovereignty inquestion.24
Disputes as to territory in international law may be divided into different categories. The contention may be over the status of the country
itself, that is, all the territory comprised in a particular state, as for example Arab claims against Israel at one time and claims formerly pursued by
Morocco against ~ a u r i t a n i a . ~Or' the dispute may refer to a certain areaon the borders of two or more states, as for example Somali claims against.~~
claims to
the north-east of Kenya and south-east of ~ t h i o p i aSimilarly,
territory may be based on a number of different grounds, ranging fromthe traditional method of occupation or prescription to the newer concepts such as self-determination, with various political and legal factors,
for example, geographical contiguity, historical demands and economic
elements, possibly being relevant. These issues will be noted during thecourse of this chapter.
Apart from territory actually under the sovereignty of a state, international law also recognises territory over which there is no sovereign. Such
territory is known as terra nullius. In addition, there is a category of territory called res communis which is (in contrast to terra nullius) generally
not capable of being reduced to sovereign control. The prime instanceof this is the high seas, which belong to no-one and may be used by all.
Another example would be outer space. The concept of common heritageof mankind has also been raised and will be examined in this chapter.
'2

See the Minqzliels and Ecrehos case, ICJ Reports, 1953, pp. 47, 52; 20 ILR, p. 94.

" Western Sahara case, ICJ Reports, 1975, pp. 12,48,64 and 68; 59 ILR, p. 14. See also Qatar

v. Bahrain, ICJ Reports, 2001, para. 86.
24 See e.g. the Western Sahara case, ICJ Reports, 1975, pp. 12,41-3; 59 ILR, p. 14; the Rann ofKutch case, 50 ILR, p. 2; the Dubai/Sharjah award, 91 ILR, pp, 543, 587 and the Eritrea/
Yemen case, 114 ILR, pp. 1, 116.
" See below, p. 446.

?"eebelow, p. 445.

4l4

I N T E R N A T I O N A L LAW

New states and title to territory27
The problem of how a state actually acquires its own territory in international law is a difficult one and one that may ultimately only be explainedin legal-political terms. While with long-established states one may dismiss the question on the basis of recognition and acceptance, new statespose a different problem since, under classical international law, until a
new state is created, there is no legal person in existence competent to holdtitle. None of the traditional modes of acquisition of territorial title satisfactorily resolves the dilemma, which has manifested itself particularlyin the post-Second World War period with the onset of decolonisation.
The international community has traditionally approached the problemof new states in terms of recognition, rather than in terms of acquisitionof title to territory. This means that states have examined the relevant situation and upon ascertainment of the factual conditions have accorded
recognition to the new entity as a subject of international law. There has
been relatively little discussioll of the method by which the new entity
itself acquires the legal rights to its lands. The stress has instead been on
compliance with factual requirements as to statehood coupled with theacceptance of this by other states.28
One approach to this problem has been to note that it is recognition that
constitutes the state, and that the territoryofthe state is, upon recognition,
accepted as the territory of a valid subject of international law irrespectiveof how it may have been acquired.29While this theory is not universallyor widely accepted,30 it does nevertheless underline how the emphasis
has been upon recognition of a situation and not upon the method of
obtaining the rights in law to the particular territory.31
One major factor that is relevant is the crucial importance of the doctrine of domestic jurisdiction. This constitutes the legal prohibition oninterference within the internal mechanisms of an entity and emphasises
the supremacy of a state within its own frontiers. Many of the factual andlegal processes leading up to the emergence of a new state are therefore
barred from international legal scrutiny and this has proved a deterrent'' See Jennings, Acquisition, pp. 36 ff.; J. G. Starke, 'The Acquisition of Title to Territory''

by Newly Emerged States', 41 BYIL, 1965-6, p. 411; J. Crawford, The Creation of Statesin Internntional Laiv, Oxford, 1979, and M. N. Shaw, Title to Territory in Africa, Oxford,
1986, pp. 168-73.
29 Ibid.
See e.g. Oppenheinz's Internatiorzul Law, p. 677.
30 See above, chapter 8.
See e.g. Jennings, Acq~lisition,p. 37, and Starke, 'Acquisition of Title: p. 413.

TERRITORY

4l5

to the search for the precise method by which a new entity obtains title tothe territory in q ~ e s t i o n . ~ "In recent years, however, the scope of the domestic jurisdiction rulehas been altered. Discussions in international conferences and institutions, such as the United Nations, have actively concerned themselveswith conditions in non-independent countries and it has been acceptedthat territorial sovereignty in the ordinary sense of the words does notreally exist over mandate or trust t e r r i t ~ r i e s This. ~ ~ is beginning to encourage a re-examination of the procedures of acquiring title. However,the plea of domestic jurisdiction does at least illustrate the fact that not
only international law but also municipal law is involved in the processof gaining independence.
There are basically two methods by which a new entity may gain its
independence as a new state: by constitutional means, that is by agreementwith the former controlling administration in an orderly devolution of
power, or by non-constitutional means, usually by force, against the willof the previous sovereign.
The granting of independence according to the constitutional provisions of the former power may be achieved either by agreement between
the former power and the accepted authorities of the emerging state, or bya purely internal piece of legislation by the previous sovereign. In manycases a combination of both procedures is adopted. For example, theindependence of Burma was preceded by a Burmese-United Kingdom
agreement and treaty (June and October, 1947) and by the Burma Independence Act of 1947 passed by the British legislature, providing for
Burmese independence to take effect on 4 January 1948. In such cases
what appears to be involved is a devolution or transfer of sovereignty
from one power to another and the title to the territory will accordingly
pass from the previous sovereign to the new administration in a conscious
act of transference.
However, a different situation arises where the new entity gains its
independence contrary to the wishes of the previous authority, whether
by secession or revolution. It may be that the dispossessed sovereign may
ultimately make an agreement with the new state recognising its new" See Shaw, Tjtle to Territory, pp. 168-9.
33 See e.g. Internatlonu1 Status of South \Vest Afrltu, ICJ Reports, 1950, p. 128; 17 ILR, p. 47;

the South \Vest Afrlca cases, ICJ Reports, 1966, p. 6; 37 ILR, p. 243; the Nai?izbm case, ICJ
Reports, 1971, p. 16; 49 ILR, p. 2, and the Western Sahara case, ICJ Reports, 1975, p. 12;
59 ILR, p. 14. See further above, chapter 5, p. 201.

416

I N T E R N A T I O N A L LAW

status, but in the meantime the new state might well be regarded by otherstates as a valid state under international law.34
The principle of self-determination is also very relevant here. Where astate gains its sovereignty in opposition to the former power, new facts are
created and the entity may well comply with the international requirements as to statehood, such as population, territory and government.
Other states will then have to make a decision as to whether or not torecognise the new state and accept the legal consequences of this new
status. But at this point a serious problem emerges.
For a unit to be regarded as a state under international law it must
conform with the legal conditions as to settled population, a definablearea of land and the capacity to enter into legal relations. However, under
traditional international law, until one has a state one cannot talk interms of title to the territory, because there does not exist any legal person
capable of holding the legal title. So to discover the process of acquisitionof title to territory, one has first to point to an established state. A few
ideas have been put forward to explain this. One theory is to concentrate
upon the factual emergence of the new state and to accept that since a newstate is in existence upon a certain parcel of land, international law shouldlook no further but accept the reality of possession at the moment of
independence as denoting ownership, that is, legal title.35While in mostcases this would prove adequate as far as other states are concerned, it canlead to problems where ownership is claimed of an area not in possession
and it does little to answer the questions as to the international legal
explanation of territorial sovereignty. Another approach is to turn to theconstitutive theory of recognition, and declare that by recognition not
only is a new state in the international community created, but its title
to the territory upon which it is based is conclusively determined.36The
disadvantage of this attitude is that it presupposes the acceptance of theconstitutive theory by states in such circumstances, something which iscontr~versial.~'
One possibility that could be put forward here involves the abandonment of the classical rule that only states can acquire territorial
sovereignty, and the substitution of a provision permitting a people toacquire sovereignty over the territory pending the establishment of the'' Shaw, Title to Territory. See also D. Greig, Irlterr~ationalLaw, 2nd edn, London, 1976,
p. 156.
" See e.g. Oppenheirn's International Law, p. 677, and Starke, 'Acquisition of Title', p. 413.
36 Starke, 'Acquisition of Title: p. 413. See also Jennings, Acquisition, p. 37.

" See above, chapter 8, p. 368.

TERRITORY

4l7

particular state. By this method the complicated theoretical issues related
to recognition are avoided. Some support for this view can be found in theprovision in the 1970 Declaration on Principles of International Law thatthe territory of a colony or other non-self-governing entity possesses, under the United Nations Charter, a status separate and distinct from that of
the administering power, which exists until the people have exercised theright of self-determinati~n.'~However, the proposition is a controversial
one and must remain t e n t a t i ~ e . ~ ~The acquisition of additional territory
The classical technique of categorising the various modes of acquisition of
territory is based on Roman law and is not altogether adequate.40 Manyof the leading cases do not specify a particular category or mode but
tend to adopt an overall approach. Five modes of acquisition are usuallydetailed: occupation of terra nullius, prescription, cession, accretion andsubjugation (or conquest); and these are further divided into original andderivative modes.41
Boundary treaties and boundary awards
Boundary treaties, whereby either additional territory is acquired or lostor uncertain boundaries are clarified by agreement between the statesconcerned, constitute a root oftitle in themselves. They constitute a special
kind of treaty in that they establish an objective territorial regime valid
erga ~rnnes.~'
Such a regime will not only create rights binding also upon
third states, but will exist outside of the particular boundary treaty andthus will continue even if the treaty in question itself ceases to apply.4"
The reason for this exceptional approach is to be found in the need forthe stability of boundaries." Further, the establishment or confirmationof a particular boundary line by way of referring in a treaty to an earlier
document (which may or may not be binding of itself) laying down a line
is also possible and as such invests the line in question with undoubted
See the Narnibia case, ICT Reports, 1971, pp. 16, 31; 49 ILR, pp. 2,21.
See Shaw, Title to Territory, pp. 171-3.
See O'Connell, Irlternational Lau: p. 405.
See Oppenheim's International Law, p. 677, and Brownlie, Principles, pp. 130-1.
42 See EritrealYemen 114 ILR, p. 48.
See Libya/Chad, ICJ Reports, 1994, pp. 6, 37; 100 ILR, p. 1
44 Ibid. and the Temple case, ICT Reports, 1962, pp. 6, 34; 33 ILR, p. 48.
j9

"

"

418

I N T E R N A T I O N A L LAW

validity.45Indeed, this earlier document may also be a map upon whicha line has been drawn.
Accordingly, many boundary disputes in fact revolve around the question of treaty interpretation. It is accepted that a treaty should be interpreted in the light of Articles 31 and 32 of the Vienna Convention on
the Law of Treaties, 1969, 'in good faith, in accordance with the ordinary
meaning to be given to its terms in their context and in the light of its
object and purpose'." Essentially the aim is to find the 'common will'of the parties, a concept which includes consideration of the subsequent
conduct of the parties.47 Since many of the boundary treaties that need
to be interpreted long pre-date the coming into force of the Vienna Con~ e n t i o n the, ~ ~problem of the applicability of its provisions has arisen.
Courts have taken the view that the Convention in this respect at least
represents customary international law, thus apparently obviating the
problem.49
More generally, the difficulty in seeking to interpret both general concepts and geographical locations used in early treaties in the light of modern scientific knowledge has posed difficulties. In the Botswana/Namibia
case, the Court, faced with the problem ofidentifying the 'main channel' of
the River Chobe in the light of an 1890 treaty, emphasised that 'the presentday state of scientific knowledge' could be used in order to illuminate termsof that treaty.'' In the Eritrea/Ethiopiacase, the Boundary Commission" See Libya/Chad, ICJ Reports, 1994, pp. 6,23; 33 ILR, p. 48. See also Cameroon v. Nigeria,
ICJ Reports, 2002, paras. 50-1.
" Libya/Chad, pp. 21-2.
47

''

'O

See the ArgentinalChile Frontier Atvard (La Palenaj 38 ILR, pp. 10, 89 and the Eritrea/
Ethiopia case, decision of 13 April 2002, p. 61. See also, with regard to acquiescence, below,
p. 436.
See article 4 providing that the Convention applies only to treaties concluded after the
coming into force of the Convention itself (27 January 1980).
See e.g. Libya/Chad, ICJ Reports, 1994, pp. 6, 21-2; the Beagle Cllannel case, 52 ILR,
pp. 93, 124 and the Botswalla/hTanzibia case, ICJ Reports, 1999, pp. 1045, 1059-60. But cf.
the Separate Opinion of Judge Oda, ibid., p. 1118. See also D. W. Greig, Intertemporality
arid the Latr of Treaties, British Institute of International and Comparative Law, 2001, pp.
108 ff.
ICJ Reports, 1999, pp. 1045, 1060. But see here the Declaration of Judge Higgins notingthat the task of the Court was to 'decide what general idea the parties had in mind, and thenmake reality of that general idea through the use of contemporary knowledge' rather thanto decide in abstract0 'by a mechanistic appreciation of relevant indicia', ibid., p. 1114.
See also the Argentina/Chile Award (La Laguna del Desierto) 113 ILR, pp. 1, 76. In the
Cameroon v. Nigeria case, the Court, in seeking to determine the location of the mouthof the River Ebeji, emphasised that 'the Court must seek to ascertain the intention of theparties at the time: ICJ Reports, 2002, para. 59.

4l9

TERRITORY

referred to the principle of contemporaneity, by which it meant that atreaty should be interpreted by reference to the circumstances prevailing when the treaty was concluded. In particular, the determination of ageographical name (whether of a place or of a river) depended upon thecontemporary understanding of the location to which that name related
at the time of the treaty. However, in seeking to understand what that was,reference to subsequent practice and to the objects of the treaty was often
required.'' In interpreting a boundary treaty, in particular in seeking toresolve ambiguities, the subsequent practice of the parties will be relevant. Even where such subsequent practice cannot in the circumstances
constitute an authoritative interpretation of the treaty, it may be deemed
to 'be useful' in the process of specifying the frontier in q ~ e s t i o n . 'How~
ever, where the boundary line as specified in the pertinent instrument
is clear, it cannot be changed by a court in the process of interpreting
delimitation provision^.'^Like boundary treaties, boundary awards may also constitute roots orsources of legal title to territory.j4 A decision by the International Courtor arbitral tribunal allocating title to a particula; territory or determining
the boundary line as between two states will constitute establishment or
confirmation of title that will be binding upon the parties themselves andfor all practical purposes upon all states in the absence of maintained
protest.55 It is also possible that boundary allocation decisions that do
not constitute international judicial or arbitral awards may be binding,providing that it can be shown that the parties consented to the initialdecision.j6

This describes the geographical process by which new land is formed andbecomes attached to existing land, as for example the creation of islands
in a river mouth or the change in direction of a boundary river leaving
dry land where it had formerly flowed. Where new land comes into being" Decision of 13 April 2002, pp. 21 ff. and 61 ff.
Ibid., para. 57.
'' Ibid., para. 107. "'ee e.g. Brownlie, Principles, p. 135.
52

See e.g. the Land, Island and ~Mariti~ne
Frontier Dispute (El Salvador/Honduras), ICT
Reports, 1992, pp. 351,401; 97 ILR, 17. 112.
' 6 See e.g. the Dubai/Shal.jah case, 91 ILR, pp. 543, 577 (where the Court of Arbitration
termed such procedures 'administrative decisions: ibid.) and Qatar/Bahrain, ICJ Reports,
2001, paras. 110 ff.
j7 See e.g. C. C. Hyde, International Law, 2nd edn, Boston, 1947, vol. I, pp. 355-6; O'Connell,
International L a ~ vpp.
, 428-30, and Oppenheirni International Law, pp. 696-8.
'5

420

I N T E R N A T I O N A L LAW

within the territory of a state, it forms part of the territory of the state andthere is no problem. When, for example, an island emerged in the Pacificafter an under-sea volcano erupted in January 1986, the UK government
noted that: 'We understand the island emerged within the territorial seaof the Japanese island of Iwo Jima. We take it therefore to be Japanese
territ~ry.'"~As regards a change in the course of a river forming a boundary, adifferent situation is created depending whether it is imperceptible andslight or a violent shift (avulsion).In the latter case, the general rule isthat the boundary stays at the same point along the original river bed.59
However, where a gradual move has taken place the boundary may beshifted.60If the river is navigable, the boundary will be the middle of thenavigable channel, whatever slight alterations have occurred, while if
the river is not navigable the boundary will continue to be the middleof the river itself. This aspect of acquiring territory is relatively unimportant in international law but these rules have been applied in a number ofcases involving disputes between particular states of the United States of~merica.~~This involves the peaceful transfer of territory from one sovereign toanother (with the intention that sovereignty should pass) and has often
taken place within the framework of a peace treaty following a war. Indeed
the orderly transference of sovereignty by agreement from a colonial or'' 478 HL Deb., col. 1005, Written Answer, 17 Tuly 1986. See also A. J. Day, Border andTerritorial Disputes, 2nd edn, London, 1987, p. 277, regarding a new island appearing aftera cyclone in 1970 on a river boundary between India and Bangladesh. Title is disputed.
See also Georgia v. South Carolina 111 L.Ed.2d 309; 91 ILR, p. 439.
See e.g. Georgia v. Sotltll Caroli~za111 L.Ed.2d 309,334; 91 ILR, pp. 439,458. See also theLand, Island and Maritime Frontier Dispute (El Salvador/Hond~~ras),
ICJ Reports, 1992,
pp. 351, 546.
60 ICJ Reports, 1992, pp. 351, 546.
61 See e.g. T h e A n n a 5 C.Rob. 373 (1805);Arkansas v. Tennessee246 US 158 (1918);Louisiana
v. Mississippi 282 US 458 (1940); Georgia v. South Carolina 111 L.Ed.2d 309; 91 ILR, p.
439, and the Ckarnizal arbitration, 5 AJIL, 1911, p. 782. See also E. Lauterpacht, 'River
Boundaries: Legal Aspects of the Shatt-Al-Arab Frontier', 9 ICLQ, 1960, pp. 208, 216;
L. J. Bouchez, 'The Fixing of Boundaries in International Boundary Rivers', 12 ICLQ,
1963, p. 789; S. McCaffrey, The Law ofInternationu1 Watercoi~rses,Oxford, 2001, and the
BotslvanalNamibia case, ICJ Reports, 1999, p. 1045.
6' See e.g. Oppenheirn's International Latu, pp. 679-86, and O'Connell, International Latu,
pp. 436-40.

"

TERRITORY

421

administering power to representatives of the indigenous population
could be seen as a form of cession.
Because cession has the effect of replacing one sovereign by anotherover a particular piece of territory, the acquiring state cannot possess
more rights over the land than its predecessor had. This is an important
point, so that where a third state has certain rights, for example, ofpassage
over the territory, the new sovereign must respect them. It is expressedin the land law phrase that the burden of obligations runs with the land,
not the owner. In other words, the rights of the territorial sovereign are
derived from a previous sovereign, who could not, therefore, dispose of
more than he had.
This contrasts with, for example, accretion which is treated as an original title, there having been no previous legal sovereign over the land.
The Island of Palmas case63emphasised this point. It concerned a dispute between the United States and the Netherlands. The claims of theUnited States were based on an 1898 treaty with Spain, which involved thecession of the island. It was emphasised by the arbitrator and accepted by
the parties that Spain could not thereby convey to the Americans greaterrights than it itself possessed.
The basis of cession lies in the intention ofthe relevant parties to transfer
sovereignty over the territory in q u e s t i ~ n . ~ W i t h othku t it cannot legally
operate. Whether an actual delivery of the property is also required fora valid cession is less certain. It will depend on the circumstances of thecase. For example, Austria ceded Venice to France in 1866, and that state
within a few weeks ceded the territory to Italy. The cession to the Italianstate through France was nonetheless valid.65In the Iloilo case,66it washeld that the cession of the Philippines to the United States took place, on
the facts of the case, upon the ratification of the Treaty of Paris of 1898,
even though American troops had taken possession of the town of Iloilo
two months prior to this.
" 2 RIAA, p. 829 (1928); 4 AD, p. 103.
64 Sovereignty over the territorial sea contiguous to and the airspace above the territory

concerned would pass with the land territory: see the Grisbadarna case, 11 RIAA, p. 147(1909) and the Beagle Channel case, HMSO, 1977; 52 ILR, p. 93. This suggests the corollary that a cession of the territorial sea or airspace would include the relevant land
territory: see Opperlheim's blternatiorlal Law,, p. 680. But see Brownlie, Principles, pp.
119-20.
65 See Oppenheim's International Law, p. 681. Note also that in 1859 Austria ceded Lombardy
to France, which then ceded it to Sardinia without having taken possession: see O'Connell,
International Law, p. 438. Cf. The Farna 5 C.Rob. 106, 115 (1804).
4 RIAA, p. 158 (1925); 3 AD, p. 336.

''

422

I N T E R N A T I O N A L LAW

Although instances of cession usually occur in an agreement following
the conclusion of h ~ s t i l i t i e s it, ~can~ be accomplished in other circumstances, such as the purchase of Alaska by the United States in 1867 from
Russia or the sale by Denmark of territories in the West Indies in 1916 to
the United States. It may also appear in exchanges of territories or puregifts of territory.68

Conquest and the use of force
How far a title based on force can be regarded as a valid, legal right recognisable by other states and enforceable within the international system isa crucial question. Ethical considerations are relevant and the principlethat an illegal act cannot give birth to a right in law is well established inmunicipal law and is an essential component of an orderly society.
However, international law has sometimes to modify its reactions tothe consequences of successful violations of its rules to take into accountthe exigencies of reality. The international community has accepted theresults of illegal aggression in many cases by virtue of recognition.
Conquest, the act of defeating an opponent and occupying all or partof its territory, does not of itself constitute a basis of title to the land.69It
does give the victor certain rights under international law as regards theterritory, the rights of belligerent ~ c c u p a t i o n but, ~ ~the territory remains
the legal possession of the ousted ~overeign.~'
Sovereignty as such does
not merely pass by conquest to the occupying forces, although complex
situations may arise where the legal status of the territory occupied is, infact, in dispute prior to the conque~t.'~Conquest, of course, may result from a legal or an illegal use of force.
By the Kellogg-Briand Pact of 1928, war was outlawed as an instrumentof national policy, and by article 2(4) of the United Nations Charter all"'Note now that article 52 of the Vienna Convention on the Law of Treaties, 1969 provides
that a treaty is void if its conclusion has been procured by the threat or use of force inviolation of the principles of international la~vembodied in the Charter of the United
Nations. However, prior treaties of cession are subject to the rule of intertemporal law:see below, p. 429.
See, for further examples, Opperlheirn's International Law, pp. 681-2.
Ibid., p. 699. See also S. Korman, The Right of Conqtlest, Oxford, 1996.
" See e.g. M. S. McDougal and F. P. Feliciano, Law and Minirnuin World Public Order, New
Haven, 1961, pp. 733-6 and 739-44, and 1. Stone, Legal Controls oflnternational Conflict,London, 1959, pp. 744-51. See also E. Benveniste, The International Law of Occupation,
Princeton, 1993.
See generally Tlle Arab-Israeli Conflict (ed. J.N . Moore), Princeton, 4 vols., 1974-89.
But cf. Y. Blum, 'The Missing Reversioner: in ibid., vol. 11, p. 287.

"

"
''

TERRITORY

423

member states must refrain from the threat or use of force against the
territorial integrity or political independence of any state. However, force
will be legitimate when exercised in self-defence.73Whatever the circumstances, it is not the successful use of violence that in international law
constituted the valid method of acquiring territory. Under the classicalrules, formal annexation of territory following upon an act of conquest
would operate to pass title. It was a legal fiction employed to mask theconquest and transform it into a valid method of obtaining land underinternational law.74However, it is doubtful whether an annexation proclaimed while war is still in progress would have operated to pass a good
title to territory. Only after a war is concluded could the juridical statusof the disputed territory be finally determined. This follows from the rulethat has developed to the effect that the control over the relevant territory
by the state purporting to annex must be effective and that there must be
no reasonable chance of the former sovereign regaining the land.
These points were emphasised by the Nuremberg War Crimes Tribunal
after the Second World War, in discussing the various purported Germanannexations of 1939 and 1940. The Tribunal firmly declared that annexations taking place before theconclusion of a war were ineffective and-invalid in international law." Intention to annex was a crucial aspect of
the equation so that, for example, the conquest of Germany by the Allies in1945 did not give rise to an implied annexation by virtue of the legislative
control actually exercised (as it could have done) because the Allies had
It is, however,specifically ruled out such a course in a joint de~laration.'~clear today that the acquisition of territory by force alone is illegal underinternational law. This may be stated in view of article 2(4) of the UN
Charter and other practice. Security Council resolution 242, for example, emphasised the 'inadmissibility of the acquisition of territory by war',
while the 1970 Declaration of Principles of International Law adopted by
the UN General Assembly provides that:the territory of a state shall not be the object of acquisition by another state
resulting from the threat or use of force. No territorial acquisition resulting
from the threat or use of force shall be recognised as
See article 51 of the UN Charter and below, chapter 20.
See e.g. Oppenheinz's International Law, p. 699. See also O'Connell, International Law,
pp. 431-6.
75 O'Connell, International Law, p. 436. See also e.g. Re Goering 13 AD, p. 203 (1946).
'6 Cmd 6648 (1945). See also Opperiheirn's Iilterilational Law, pp. 699-700.
77 See also article j(3) of the Co~lse~lsus
Definition of Aggression adopted in 1974 by the
UN General Assembly. Similarly, by article 52 of the Vienna Convention on the Law ofTreaties, 1969, a treaty providing for the transfer of territory may be void for duress.
7'

j4

424

I N T E R N A T I O N A L LAW

In Security Council resolution 662 (1990))adopted unanimously) theCouncil decided that the declared Iraqi annexation of Kuwait 'under any
form and whatever pretext has no legal validity and is considered nulland void'. All states and institutions were called upon not to recognise
the annexation and to refrain from actions which might be interpreted as
indirect r e c ~ g n i t i o n . ~ ~Acquisition of territory following an armed conflict would require
further action of an international nature in addition to domestic legislation to annex. Such further necessary action would be in the form
either of a treaty of cession by the former sovereign or of internationalrecognition.79

The exercise of effective control
It is customary in the literature to treat the modes of occupation and prescription as separate categories. However, there are several crucial factorsthat link the concepts, so that the acquisition of territory by virtue of thesemethods, based as they are upon the exercise of effective control, is best
examined within the same broad framework. The traditional definitionof these two modes will be noted first.
Occupation is a method of acquiring territorywhich belongs to no one(terra nullius) and which may be acquired by a state in certain situations.
The occupation must be by a state and not by private individuals, it must
be effective and it must be intended as a claim of sovereignty over the area.
The high seas cannot be occupied in this manner for they are res communis,but vacant land may be subjected to the sovereignty of a claimant state.
It relates primarily to uninhabited territories and islands, but may also
apply to certain inhabited lands.
The issue was raised in the Western Sahara case before the International Court of ~ustice.~'
The question was asked as to whether the territory in question had been terra nullius at the time of colonisation. It
78 See The Kuwait Crisis - Basic Documents (eds. E. Lauterpacht, C. Greenwood, M. Weller

and D. Bethlehem), Cambridge, 1991, p. 90.
See, for example, Security Council resolution 497 (198 l ) , condemning Israel's decision toextend its laws, jurisdiction and administration to the occupied Golan Heights. The UN
has also condemned Israel's policy of establishing settlements in the occupied territories:
see e.g. Security Council resolution 465 (1980).See further below, chapter 20, with regard
to self-determination and the use of force.
80 ICJ Reports, 1975, p. 12; 59 ILR, p. 14. See also M. N. Shaw, 'The \Vestern Sahara case', 49
BYIL, 1978, pp. 119, 127-34.
7y

425

TERRITORY

was emphasised by the Court that the concept of terra nullius was a legal
term of art used in connection with the mode of acquisition of territory
known as 'occupation'.81 The latter mode was definedlegally as an originalmeans of peaceably acquiring sovereignty over territory otherwise than bycession or s u c c e ~ s i o nIn. ~an~ important statement, the Court unambiguously asserted that the state practice of the relevant period (i.e. the periodof colonisation) indicated that territories inhabited by tribes or peoples
having a social and political organisation were not regarded as terrae null i ~ s Further,. ~ ~ international case-law has recognised that sovereign title
may be suspended for a period of time in circumstances that do not leadto the status of terra nullius. Such indeterminacy could be resolved by therelevant parties at a relevant time.84
In fact the majority of territories brought under European control
were regarded as acquired by means of cessions, especially in Asia and~ f r i c a . However,~'there were instances of title by occupation, for example
Australia, and many sparsely inhabited islands.
Occupation, both in the normal sense of the word and in its legal
meaning, was often preceded by discovery, that is the realisation of theexistence of a particular piece of land.s6 But mere realisation or sighting
was never considered (except for periods in the fifteenth and sixteenth
centuries and this is not undisputed) as sufficient to constitute title toterritory. Something more was required and this took the form of a symbolic act of taking possession, whether it be by the raising of flags orby solemn proclamations or by more sophisticated ritual expressions. As
time passed, the conditions changed and the arbitrator in the Island ofPalmas case pointed to the modern effect of discovery as merely giving
an inchoate title which had to be completed within a reasonable time by
ICJ Reports, 1975, pp. 12, 39; 59 ILR, pp. 14, 56.

Ibid.

'' Ibid. This ran counter to some writers of the period: see e.g. M. F. Lindley, The Acquisition
and Government of Backward Territory in hlternational Law, London, 1926, pp. 11-20;
1. IVestlake, Chapters on the Principles of International Law, London, 1894, pp. 141-2;
Jennings, Acquisition, p. 20, and Oppenheim's Internatioizal Law, p. 687, footnote 4.
84 See Eritrea/Yemen, 114 ILR, pp. 1, 51. See also N. S. M. Antunes, 'The Eritrea-Yemen
Arbitration: First Stage - The Law of Title to Territory Re-averred: 48 ICLQ, 1999,
p. 362, and A. Yannis, 'The Concept of Suspended Sovereignty in International Law and
Its Implications in International Politics', 13 EJIL, 2002, p. 1037.
See Shaw, Title to Territory, chapter 1 , and C. H. Alexandrowicz, The European-African
Confrontation, Leiden, 1973.
86 See e.g. Oppenheim's International Law, pp. 689-90, and F. A. F. Iron der Heydte, 'Discovery,
Symbolic Annexation andvirtual Effectiveness in International Law', 29 AJIL,1935, p. 448.
See also A. S. Keller, 0.J. Lissitzyn and F. J. Mann, Creation ofRiglits ofsovereignty ThroughSymbolic Acts, 1400-1800, New York, 1938.

426

I N T E R N A T I O N A L LAW

the effective occupation of the relevant region. Discovery only put otherstates on notice that the claimant state had a prior interest in the territory
which, to become legally meaningful, had to be supplemented by effective
occupation within a certain period.a7
prescriptionaa is a mode of establishing title to territory which is notterra nullius and which has been obtained either unlawfully or in circumstances wherein the legality of the acquisition cannot be demonstrated.
It is the legitimisation of a doubtful title by the passage of time and thepresumed acquiescence of the former sovereign, and it reflects the needfor stability felt within the international system by recognising that territory in the possession of a state for a long period of time and uncontested
cannot be taken away from that state without serious consequences forthe international order. It is the legitimisation of a fact. If it were notfor some such doctrine, the title of many states to their territory would
be j e o p a r d i ~ e d The. ~ ~ International Court in the Botswana/Namibia case,while making no determination of its own, noted that the two parties wereagreed that acquisitive prescription was recognised in international law
and further agreed on the criteria to be satisfied for the establishment ofsuch a title, viz. the possession must be a titre de souverain, peaceful anduninterrupted, public and endure for a certain length of time. The Court
did not contradict this position.90
Prescription differs from occupation in that it relates to territory whichhas previously been under the sovereignty of a state. In spite of this, bothconcepts are similar in that they may require evidence of sovereign acts bya state over a period of time. And although distinct in theory, in practicethese concepts are often indistinct since sovereignty over an area maylapse and give rise to doubts whether an abandonment has taken place,y1
rendering the territory terra nullius.

'' 2 R I M , pp. 829,846 (1928); 4 AD, pp. 103, 108.
88 See generally e.g. D. H. Johnson, Xcquisitive Prescription in International Law', 27 BYIL,

1950, p. 332, and H. Post, 'International Law Between Dominium and Imperium' in
Reflections on Principles and Practice oflnternational Law (eds.T. D. Gill and Mr. P. Heere),
The Hague, 2000, p. 147.
89 AS noted in the Grisbadarna case, 'it is a settled principle of the law of nations that a stateof things which actually exists and has existed for a long time should be changed as little
as possible', J. B. Scott, Hague Court Reports, New York, 1916, vol. I, pp. 121, 130.
ICJ Reports, 1999, pp. 1045, 1101 ff.
91 For abandonment ofterritory, the fact ofthe loss plus the intention to abandon is required.
This is very rare: see e.g, the Delagoa Bay case, C. Parry, British Digest oflnternational Law,
Cambridge, 1965, rol. V,p. 535, and the Frontier Land case, ICJ Reports, 1959, p. 209. See
also Brownlie, Principles, pp. 142-3.

''

TERRITORY427

In fact, most cases do not fall into such clear theoretical categories as
occupation or prescription. Particular modes of acquisition that can be
unambiguously related to the classic definitions tend not to be specified.
Most cases involve contesting claims by states, where both (or possiblyall) the parties have performed some sovereign acts. As in the instance ofoccupation, so prescription too requires that the possession forming thebasis of the title must be by virtue of the authority of the state or a titre desouverain, and not a manifestation of purely individual effort unrelated
to the state's sovereign claims. And this possession must be public so that
all interested states can be made aware of it.
This latter requirement also flows logically from the necessity for thepossession to be peaceful and uninterrupted, and reflects the vital pointthat prescription rests upon the implied consent of the former sovereign
to the new state of affairs. This means that protests by the dispossessedsovereign may completely block any prescriptive ~ l a i m . ~ 'g3
In the Chamizal arbitration between the United States and Mexico,
the Rio Grande River forming the border between the parties changed
course and the United States claimed the ground between the old andthe new river beds partly on the basis of peaceful and uninterrupted
possession. This claim was dismissed in view of the constant protests
by Mexico and in the light of a Convention signed by both parties that
there existed a dispute as to the boundary which had to be resolved.
The fact that Mexico did not go to war over the issue was not of itself
sufficient to make the possession of the tract of land by the United States
peaceful.
Thus acquiescence in the case of prescription, whether express or
implied from all the relevant circumstances, is essential, whereas in thecase of occupation it is merely an evidential point reinforcing the existence of an effective occupation, but not constituting the essence of thelegal claim.
Precisely what form the protest is to take is open to question but resort to force is not acceptable in modern international law, especiallysince the 1928 Kellogg-Briand Pact and article 2(4) of the United Nations chartereg4The bringing of a matter before the United Nations or
the International Court of Justice will be conclusive as to the existence ofthe dispute and thus of the reality of the protests, but diplomatic protests
92 See Johnson, 'Acqu~szt~ve
Prescrlptlon: pp. 343-8.

" 5 AJIL 1911, p. 782. See also the LM1nqulersand Ecrehos case, ICJ Reports, 1953, pp. 47,
106-8; 20 ILR, pp. 94, 142-4.

" See above, p. 422, and below, chapter 20.

428

I N T E R N A T I O N A L LAW

will probably be sufficient. This, however, is not accepted by all academic
writers, and it may well be that in serious disputes further steps should
be taken such as severing diplomatic relations or proposing arbitrationor judicial ~ettlement.~'
The requirement of a 'reasonable period' of possession is similarly
imprecise and it is not possible to point to any defined length of time.'6
It will depend, as so much else, upon all the circumstances of the case,including the nature of the territory and the absence or presence of any
competing claims.
In the Minquiers and Ecrehos case,97concerning disputed sovereignty
over a group of islets and rocks in the English Channel, claimed by bothFrance and the United Kingdom, the International Court of Justice exhaustively examined the history of the region since 1066. However, its
decision was based primarily on relatively recent acts relating to the exercise of jurisdiction and local administration as well as the nature oflegislative enactments referable to the territory in question. And uponthese grounds, British sovereignty was upheld. The sovereign acts of theUnited Kingdom relating to the islets far outweighed any such activities
by the French authorities and accordingly the claims of the latter weredismissed.
As in other cases, judgment was given not on the basis of clearly defined
categories of occupation or prescription, but rather in the light of thebalance of competing state activities.
De Visscher has attempted to render the theoretical classifications more
consonant with the practical realities by the introduction ofthe concept ofhistorical c o n s ~ l i d a t i o nThis. ~ ~ idea is founded on proven long use, whichreflects a complex of interests and relations resulting in the acquisitionof territory (including parts of the sea). Such a grouping of interests andrelations is considered by the courts in reaching a decision as of more importance than the mere passage of time, and historical consolidation may
apply to terra nullius as well as to territories previously occupied. Thus it
can be distinguished from prescription. It differs from occupation in that
95 See e.g. Johnson, 'Acquisitive Prescription:

pp. 353-4, and I. MacGibbon, 'Some Observations on the Part of Protest in International Law', 30 BYIL, 1953, p. 293. Cf. Brownlie,
Principles, 17. 154, who notes that 'if acquiescence is the crux ofthe matter (and it is believedthat it is) one cannot dictate what its content is to be'.
96 In the Britlsh G~~iana-Venezuela
Boundary case, the parties agreed to adopt a fifty-year
adverse holding rule, 89 BFSP, 1896, p. 57.
97 ICJ Reports, 1953, p. 47; 20 ILR, p. 94.
Theory and Reality in Public International Law, 1968, p. 209. See below, p. 441.

"

429

TERRITORY

the concept has relevance to the acquisition of parts of the sea, as well asof land. And it may be brought into existence not only by acquiescenceand consent, but also by the absence of protest over a reasonable period
by relevant states.99
However, de Visscher's discussion, based on the Anglo-Norwegian Fisheries case,"' does fail to note the important distinction between the acquisition of territory in accordance with the rules of international law, and theacquisition of territory as a permitted exception to the generally accepted
legal principles. The passage in the Anglo-Norwegian Fisheries case relied
uponlo' is really concerned with general acquiescence with regard to amaritime area, while the criticism has been made'02 that de Visscher has
over-emphasised the aspect of 'complex of interests and relations whichin themselves have the effect of attaching a territory or an expanse of sea toa given state:"' Effectiveness, therefore, rather than consolidation would
be the appropriate term. Both occupation and prescription rely primarily
upon effective possession and control. The element of time is here also
relevant as it affects the effectiveness of control.
Intertemporal law104
One question that arises is the problem of changing conditions related toparticular principles of international law, in other words the relevant time
period at which to ascertain the legal rights and obligations in question.
This can cause considerable difficulties since a territorial title may be valid
under, for example, sixteenth-century legal doctrines but ineffective undernineteenth-century developments. The general rule in such circumstancesis that in a dispute the claim or situation in question (or relevant treaty,
for examp1e)''j has to be examined according to the conditions and rules
in existence at the time it was made and not at a later date. This meant,
99

Ibid.

loo

ICJ Reports, 1951, pp. 116, 138; 18 ILR, pp. 86, 100.

lo'

Ibid.

'02 See Jennings, Acquisition, pp. 25-6. See also D. H. Johnson, 'Consolidation as a Root ofTitle in International Law', Carrlbridge Law Journal, 1955, pp. 215,223.
De Visscher, Theory and Reality, 17. 209, emphasis added. See further below, p. 436.
'04 See e.g. the Western Sallara case, ICJ Reports, 1975, pp. 12, 38-9; 59 ILR, pp. 14, 55. See
also Shaw, 'Western Sahara Case: pp. 152-3; Jennings, Acquisition, 1717. 28-31; T. 0 . Elias,e,pp. 126'The Doctrine of Intertemporal Law: 74 AJIL, 1980, p. 285; B r o ~ ~ n l iPrinciples,
8; Oppenlleim's Irlterrlational Law, pp. 1281-2; G. Fitzmaurice, The Law and Procedure of
the International Court ofJt~stic€,
Cambridge, 1986, vol. I, p. 135, and H. Thirlway, 'The
Law and Procedure ofthe International Court of Justice 1960-1989 (Part One): 60 BYIL,
1989, pp. 4, 128. See also R. Higgiils, 'Time and the Law: International Perspectives 011
an Old Problem: 46 ICLQ, 1997, p. 501, and Greig, Intertemporality.
lo' See e.g, the Right ofPassage case, ICJ Reports, 1960, pp. 6, 37.
'03

430

I N T E R N A T I O N A L LAW

for example, that in the Island ofpalmas case,lo6the Spanish claim to title
by discovery, which the United States declared it had inherited, had to betested in the light of international legal principles in the sixteenth century
when the discovery was made. This aspect of the principle is predicatedupon a presumption of, and need for, stability.lo7
But it was also noted in this case that while the creation of particular
rights was dependent upon the international law of the time, the continued existence of such rights depended upon their according with the
evolving conditions of a developing legal system, although this stringent
test would not be utilised in the case of territories with an 'establishedorder of things'.'0s This proviso has in practice been carefully and flexibly interpreted within the context of all the relevant rules relating to
the acquisition of territory, including recognition and acquiescence.'09
However, the Court in the Aegeaiz Sea Contiizental shelfcaseH0declaredthat the phrase 'disputes relating to the territorial status of Greece' contained in a Greek reservation to the 1928 Kellogg-Briand Pact had to beinterpreted 'in accordance with the rules of international law as they exist
today, and not as they existed in 193 1'. The evolution of international law
concerning the continental shelf, therefore, had to be considered, so thatthe territorial status of Greece was taken to include its continental shelf,
although that concept was completely unknown in the 1920s. How far
this aspect of the principle of international law may be extended is highly
controversial. The better view is to see it as one element in the bundleof factors relevant to the determination of effective control, but one thatmust be applied with care.'"lo6 2 RIAA, pp. 829, 845 (1928); 4 AD, p. 103.

See e.g. Eritrea/Yemen, 114 ILR, pp. 1, 46 and 115; EritrealEthiopia case, 2002, pp. 21-2
and Cameroon v. Nigeria, ICT Reports, 2002, para. 205.
lox 2 KIAA, pp. 839-45. See P. Jessup, 'The Palmas Island Arbitration: 22 AJIL, 1928, p. 735.
See also M. Snrensen, 'Le Probleme Dit du Droit Intertemporal dans I'Ordre International: Annuaire de l'lnstitvt de Uroit International, Uasle, 1973, pp. 4 ff., and subsequentdiscussions, ibid., at pp, 50 ff., and the Resolution adopted by the Institut de Droit International, Annuuire de l'lnstitut de Droit International, 1975, pp. 536 ff.
lo9 Note that the 1970 Declaration on Principles of International Law provides that theconcept of non-acquisition of territory by force was not to be affected inter alia by
any international agreement nlade prior to the Charter and valid under interllationallaw.
' l o ICJ Reports, 1978, pp. 3,33-4; 60 ILR, pp. 562,592. See Elias, 'Intertemporal Law: pp. 296
ff. See also the Indian argument regarding the invalidity of Portugal's title to Goa, SCOR,
SIPV-987, 11, 18 December 1961.
11' See, as to time and the interpretation of treaties, above, p. 418.
lo'

TERRITORY

43l

Critical date
In certain situations there may exist a determining moment at which it
might be inferred that the rights ofthe parties have crystallised so that acts
after that date cannot alter the legal position."2 Such a moment might
be the date of a particular treaty where its provisions are at issue'I3 or thedate of occupation of territory.'14 It is not correct that there will or should
always be such a critical date in territorial disputes, but where there is, acts
undertaken after that date will not be taken into consideration, unless suchacts are a normal continuation of prior acts and are not undertaken for the
purpose of improving the legal position of the party relying on them.'"
The concept of a critical date is of especial relevance with regard to thedoctrine of utipossidetis, which posits that a new state has the boundariesof the predecessor entity, so that the moment of independence itself isthe critical date.'16 This does not preclude the possibility that the relevant territorial situation or rights had crystallised at an earlier time, inthe sense of having become established and not altered subsequently."'
Where there is more than one state involved, then logically the date offirst independence will be important, but this may be of more apparent
significance than real since the date of independence may simply markthe date of succession to boundaries which have been established withbinding force by earlier instruments."'
The moment of independence may not be 'critical' for these purposes
for several possible reasons. There may be a dispute between the parties
as to whether the date of independence or the date of the last exerciseof jurisdiction for administrative organisational purposes by the former
sovereign is the more appropriate date' l 9 or the uti possidetis line may in
L. F. E. Goldie, 'The Critical Date: 12 ICLQ, 1963, p. 1251. See also G. Fitzmaurice, 'The
1951-4: Points of Substance,
Law and Procedure of the International Court of J~~stice,Part 11: 32 BYIL, 1955-6, p. 20. See also M. N. Shan: 'The Heritage ofstates: The Principleof Uti Possidetis Jtrris Today', 67 BI'IL, 1996, pp. 75, 130.
See e.g. the Island of Palrnas case, 2 R I M , p. 845.
] I 4 See e.g. the Eastern Greenland case, PCIJ, Series AIB, No. 53, p. 45.
'I5 See the Malaysia/Indonesia case ICJ Reports, 2002, para. 135. See also Argentinu/Chile 38
ILR, pp. 10,79-80.
'I6 The Burkina Faso/Mali case, ICJ Reports, 1986, p. 568; 80 ILR, p. 440. This may be
reinforced by the terms of the conlprornis itself. For example, in the EritrealEthiopia case,the parties referred specifically to the principle of respect for borders existing at the
moment of independence, p. 30 and see further below, p. 446.
' I 7 EritreulEthiopia case, pp. 83-4.
'I8 AS ill the Libya/Chad case, ICJ Reports, 1994, p. 6; 100 ILR, p. 1.
'I9 See the Burkiizu Faso/Mali case, ICJ Reports, 1986, p. 570; 80 ILR, p. 440.

11'

432

I N T E R N A T I O N A L LAW

some circumstances onlybe determined upon a consideration ofmaterials
appearing later than the date of independence,'" or such a 'critical date'
may have been moved to a later date than that of independence by asubsequent treaty12' or by an adjudication award.122The importance ofthe critical date concept, thus, is relative and depends entirely upon thecircumstances of the case.I2"
Sovereign activities (efectivites)
The exercise of effective authority, therefore, is the crucial element. As
Huber argued, 'the actual continuous and peaceful display of state functions is in case of dispute the sound and natural criterion of territorial~overeignty'.'~~
However, control, although needing to be effective, does not necessarily
have to amount to possession and settlement of all ofthe territory claimed.
Precisely what acts of sovereignty are necessary to found title will dependin each instance upon all the relevant circumstances of the case, including
the nature of the territory involved, the amount of opposition (if any) thatsuch acts on the part of the claimant state have aroused, and international
reaction.
Indeed in international law many titles will be deemed to exist not as
absolute but as relative concepts. The state succeeding in its claim forsovereignty over terra nullius over the claims of other states will in mostcases have proved not an absolute title, but one relatively better than thatmaintained by competing states and one that may take into account issues
such as geography and international r e s p o n ~ e s . ' ~ V hCourtenoted in the

"I

"'
"'

See the El Salvador/Hondzlras case, ICJ Reports, 1992, pp. 56 ff.; 97 ILR, p. 112.
See the Beagle Channel case, 21 RIAA, pp. 55, 82-3; 52 ILR, p. 93.
The El Salvador/Holzdurar case, ICJ Reports, 1992, p. 401; 97 ILR, p. 112. See also the
BurkiliaFaso/Malicase, ICJ Reports, 1986, p. 570; 80 ILR, p. 440, and the Separate Opinionof Judge Ajijibola, the Libya/Chad case, ICJ Reports, 1994, p. 91; 100 ILR, p. 1.
See e.g. the Burkino FasolMali case, ICJ Reports, 1986, p. 570; 80 ILR, p. 440, for an
example where the concept was held to be of little or no practical value. A similar view
was taken in the DubailSharjah case, 91; ILR, pp. 590-4 and the EritrealYemerz Arbitration,
114 ILR, pp. 1,32.
2 RIAA, p p 829, 840 (1928). The Tribunal in EritrealYernen noted that 'The modern
international law of the acquisition (or attribution) of territory generally requires that
there be: an intentional display of power and authority over the territory, by the exercise
ofjurisdiction and state functions, on a continuous and peaceful basis', 114 ILR, pp. 1,69.
See the Island of Palrnas case, 2 RIAA, pp. 829, 840 (1928); 4 AD, p. 103. See also theEastern Greenland case, PCIJ, Series AIB, No. 53, 1933, p. 46; 6 AD, p. 95; the Clipperton
Ixlund case, 26 AJIL, 1932, p. 390; 6 AD, p. 105, and the Minquiers and Ecreh0.c case, ICJ
Reports, 1953, p. 47; 20 ILR, p. 94.

TERRITORY

433

Eastern Greenland case that 'It is impossible to read the records of thedecisions in cases as to territorial sovereignty without observing that inmany cases the tribunal has been satisfied with very little in the way of theactual exercise of sovereign rights, provided that the other state could not
make out a superior claim. This is particularly true in the case of claims
to sovereignty over areas in thinly populated or unsettled c ~ u n t r i e s . " ~ ~However, the arbitral tribunal in Eritrea/Yemen emphasised that the issue
did not turn solely upon relativity since 'there must be some absolute
minimum requirement' for the acquisition of territorial sovereignty.127
In the Island ofpalmas arbitration12$the dispute concerned sovereignty
over a particular island in the Pacific. The United States declared that,since by a treaty of 1898 Spain had ceded to it all Spanish rights possessed in that region and since that included the island discovered by
Spain, the United States of America therefore had a good title. The
Netherlands, on the other hand, claimed the territory on the basis of
the exercise of various rights of sovereignty over it since the seventeenth
century. The arbitrator, Max Huber, in a judgment which discussed thewhole nature of territorial sovereignty, dismissed the American claims
derived from the Spanish discovery as not effective to found title.12'
Huber declared that the Netherlands possessed sovereignty on the basis of 'the actual continuous and peaceful display of state functions' evidenced by various administrative acts performed over the centuries.l3'
It was also emphasised that manifestations of territorial sovereignty
may assume different forms, according to conditions of time and place.
Indeed, 'the intermittence and discontinuity compatible with the maintenance of the right necessarily differ according as inhabited or uninhabited regions are involved'. Additionally, geographical factors wererelevant.13'
The Clipperton Island arbitration13' concerned a dispute between
France and Mexico over an uninhabited island. The arbitrator emphasised that the actual, and not the nominal, taking of possession was a
126 PCIJ, Series AIB, No. 53, pp. 45-6.

See also Qatar v. Bahrain, ICJ Reports, 2001, para.
198, and Malaysia/Indo~lieia,ICJ Reports, 2002, para. 134.
12' 114 ILR, pp. 1, 118. Other obvious factors in such situations would include considerationof the geographical position, ibid., p. 119.
l Z S 2 RIAA, P. 829 (1928).
129 Ibid., p. 846.
' j O Ibid., pp. 867-71.
13' Ibid., p. 840. See also, in this context, the American claim to the Howland, Baker and Tarvis
Islands in the Pacific Ocean, where it was argued that the administration of the islands aspart of the US IVildlife Refuge System constituted sufficient occupation, DUSPIL, 1975,
pp. 92-4.
13' 26 AJIL, 1932, p. 390; 6 AD, p. 105.

434

I N T E R N A T I O N A L LAW

necessary condition of occupation, but noted that such taking of possession may be undertaken in different ways depending upon the nature of
the territory concerned. In this case, a proclamation of sovereignty by aFrench naval officer later published in Honolulu was deemed sufficient
to create a valid title. Relevant to this decision was the weakness of the
Mexican claims to the guano-rich island, as well as the uninhabited andinhospitable nature of the territory.
These two cases, together with the Eastern Greenland case,'33 revealthat the effectiveness of the occupation may indeed be relative and may
in certain rare circumstances be little more than symbolic. In the Eastern Greenland case before the Permanent Court of International Justice,both Norway and Denmark claimed sovereignty over Eastern Greenland.
Denmark had colonies in other parts of Greenland and had granted concessions in the uninhabited Eastern sector. In addition, it proclaimed that
all treaties and legislation regarding Greenland covered the territory as
a whole, as for example its establishment of the width of the territorialsea, and it sought to have its title to all of the territory recognised byother states. The Court felt that these acts were sufficient upon which tobase a good title and were superior to various Norwegian actions suchas the wintering of expeditions and the erection of a wireless station in
Eastern Greenland, against which Denmark had protested. It is also to
be noted that it was not until 1931 that Norway actually claimed theterritory.
Such activity in establishing a claim to territory must be performed by
the state in the exercise of sovereign powers ( a titre de s o u ~ e r a i n )or' ~ by~individuals whose actions are subsequently ratified by their state,I3' orby corporations or companies permitted by the state to engage in suchoperations and thus performed on behalf of the ~ 0 v e r e i ~ nOtherwise,.l~~any acts undertaken are of no legal consequence.'37"' PCIJ, Series AIB, No. 53, 1933, p. 46; 6 AD, p. 95.
That is, those made as a 'public claim of right or assertion of sovereignty.. .as well as
legislative acts', EritrealYemen, 114 ILR, pp. 1, 69. See also the Minquiers and Ecrellos case,
ICJ Reports, 1953, pp. 47, 65 and 69; 20 ILR, p. 94. Such acts need to relate clearly to theterritory in question, Malaysia/Indonesia, ICJ Reports, 2002, para. 136.
The Court has emphasised that 'activities by private persons cannot be seen as effectivit6s ifthey do not take place on the basis of official regulations or under governmental authority',
Malaysia/Irido~zesia,ICJ Reports, 2002, para. 140.
136 Bots~vana/Narnibia,ICJ Reports, 1999, pp. 1045, 1105.
13' See Judge McNair, the Anglo-Norwegian Fisheries case, ICJ Reports, 1951, pp. 116, 184;
18 ILR, pp. 86, 113 and McNair, International Latv Opinions, Cambridge, 1956, vol. I,
p. 21. See also OIConilell, International Law, pp. 417-19.
'j4

TERRITORY

435

Another relevant factor, although one of uncertain strength, is the requirement of the intention by the state in performing various activities
to assert claim in its sovereign capacity. In other words the facts are created pursuant to the will of the state to acquire sovereignty. This point
was stressed in the Eastern Greenland case,'" but appears not to havebeen considered as of first importance in the Island of Palmas case'" orin the Minquiers and Ecrehos case,I4' where concern centred upon thenature and extent of the actual actions carried out by the contending
states. Whatever the precise role of this subjective element, some connection between the actions undertaken and the assertion of sovereignty isnecessary.
Account will also be taken ofthe nature ofthe exercise ofthe sovereignty
in question, so that in the Rann of Kutch case, it was noted that:the rights and duties which by law and custom are inherent in and characteristic of sovereignty present considerable variations in different circumstances according to time and place, and in the context of various politicalsyste~ns.~~'Similarly, the Court was willing to take into account the special characteristics of the Moroccan state at the relevant time in the Western Sahara
case142in the context of the display of sovereign authority, but it was theexercise of sovereignty which constituted the crucial factor. While international law does appear to accept a notion of geographical or naturalunity of particular areas, whereby sovereignty exercised over a certain
area will raise the presumption of title with regard to an outlying portionof the territory comprised within the claimed unity,'" it is important not
to overstate this. It operates to raise a presumption and no more and thatwithin the wider concept of display of effective sovereignty which need
not apply equally to all parts of the territory.'" Neither geographical unity
nor contiguity are as such sources of title with regard to all areas contained
within the area in question. The Tribunal in the Eritrea/Yemen case felt
able to consider separately the legal situation with regard to sub-groups'" PCIJ, Series AIB, No. 53, 1933, p. 46; 6 AD, p. 95.
"'2 RIAA, p. 829 (1928); 4 AD, p. 103.
ICJ Reports, 1953, p. 47; 20 ILR, p. 94.
Annex I, 7 ILM, 1968, pp. 633, 674; 50 ILR, p. 2.
'" ICJ Reports, 1975, pp. 12, 43-4; 59 ILR, pp. 14, 60. See also the Dubai/Sharjah Border'4

14'

Arbitration, 91 ILR, pp. 543,585-90.
EritrealYernen, 114 ILR, pp. 1, 120 ff., and see Fitzrnaurice, Law and Procedure, vol. I,
pp. 312 ff.
'44 See the Island of Palrnas case, 2 RIAA, p. 840.
14'

436

I N T E R N A T I O N A L LAW

existing within such natural unities,'45 as did the Boundary Commission
in the EritredEthiopia case.146
However, the significance in law of state activities or effectivitts will
depend upon the existence or not of a legal title to the territory. Where
there is such a valid legal title, effectivitts are merely confirmatory, where
there is not and the effectivitts are in contradiction to the title, the latter
will be preferred. In the absence of any legal title, then effectivitts mustinvariably be taken into consideration, while where the legal title is notcapable of exactly defining the relevant territorial limits, efectivites thenplay an essential role in showing how the title is interpreted in practice.'47
Accordingly, examples of state practice may confirm or complete but notcontradict legal title established, for example, by boundary treaties.14$In
the absence of any clear legal title to any area, state practice comes into
its own as a law-establishing mechanism. But its importance is always
contextual in that it relates to the nature of the territory and the natureof competing state ~ 1 a i m s . l ~ ~The role of subsequent conduct: recognition, acquiescenceand estoppel
Subsequent conduct may be relevant in a number of ways: first, as amethod of determining the true interpretation of the relevant boundary
instrument in the sense of the intention of the parties;l5' secondly, as amethod of resolving an uncertain disposition or situation, for example,
whether a particular area did or did not fall within the colonial territory in~asquestion for purposes of determining the u t i p ~ s s i d e t i s l i n eor~ ~thirdly,
a method of modifying such an instrument or pre-existing arrangement.
The Eritrea/Ethiopia Boundary Commission explained the general principle that 'the effect of subsequent conduct may be so clear in relation tomatters that appear to be the subject of a given treaty that the applicationof an otherwise pertinent treaty provision may be varied, or may even
114 ILR, PP1, 120 ff.
146 EritrealEtltiopia, p p 67 ff.
Burkina Faso/Mali, ICT Reports, 1986, pp. 554, 586-7; 80 ILR, p. 440, and the El
SalvadorlHortduras case where the Chamber also noted that these principles applied bothto colonial and post-colonial effectivitbs, ICJ Reports, 1992, pp. 351, 398; 97 ILR, p. 266.
14' See also Canleroon v. Nigeria, ICJ Reports, 2002, paras. 68-70.
See also the general statement of principle in Eritrea/Ethiopia, pp. 28-9. As to the role ofequity in territorial disputes, see above, chapter 3, p. 99.
l''
See Article 31(3)(b) of the I7ienna Convention o n the Law of Treaties, 1969. See also theArgentina/Chile case, 38 ILR, pp. 10, 89.
l'' See the El Salvador/Honduras case, ICJ Reports, 1992, pp. 351,401, 558 ff.
14'
14'

'"

TERRITORY

437

cease to control the situation, regardless of its original meaning'.'j2 The
various manifestations of the subsequent conduct of relevant p arties havea common foundation in that they all rest to a stronger or weaker extent
upon the notion of consent.153 hey reflect expressly or impliedly the presumed will of a state, which in turn may in some situations prove of great
importance in the acquisition of title to territory. However, there are significant theoretical differences between the three concepts (recognition,acquiescence and estoppel), even if in practice the dividing lines are often
blurred. In any event, they flow to some extent from the fundamental
principles of good faith and equity.
Recognition is a positive act by a state accepting a particular situation
and, even though it may be implied from all the relevant circumstances,
it is nevertheless an affirmation of the existence of a specific factual stateof affairs,'j4 even if that accepted situation is inconsistent with the termin a treaty.'j5 Acquiescence, on the other hand, occurs in circumstanceswhere a protest is called for and does not happen'j6 or does not happen
in time in the circumstance^.'^^ In other words, a situation arises which
would seem to require a response denoting disagreement and, since thisdoes not transpire, the state making no objection is understood to haveaccepted the new ~ituation."~
The idea of estoppel in general is that a
party which has made or consented to a particular statement upon whichanother party relies in subsequent activity to its detriment or the other's
benefit cannot thereupon change its position.'j9 This rests also upon thenotion of preclusion,16o
15'EritrealEthiopia, at p. 22.

lS3 Consent, of course, is the basis of cession: see above, p. 420.
154 See e.g. the Eastern Greenland case, PCIJ, Series AIB, No. 53, 1933, pp. 46, 51-2; 6 AD,

pp. 95, 100, and the M'estern Sahara case, ICJ Reports, 1975, pp. 12, 49-57; 59 ILR,
pp. 14, 66. See also G. Schwarzenberger, 'Title to Territory: Response to a Challenge: 51
AJIL, 1957, p. 308.
See e.g. the Tuba case, 80 ILR, pp. 224,297-8 and 306.
15' See Brownlie, Principles, p. 157, and I. MacGibbon, 'The Scope of Acquiescence in International Law: 31 BYIL, 1954, p. 143.
15' See the Land, Island and Maritinle Froiltier (El Salvador/Hondt~ras)case, ICJ Reports,
1992, pp. 351, 577; 97 ILR, pp. 266,493, and Eritrea/Yenzen, 114 ILR, pp. 1, 84.
See e.g, the LibyalCkad case, ICJ Reports, 1994, pp. 6, 35; 100 ILR, pp. 1, 34, where the
Court noted that 'If a serious dispute had indeed existed regarding frontiers, eleven years
after the conclusion of the 1955 Treaty, one would expect it to have been reflected in the
1966 Treaty.'
15' See the Templecase, ICJ Reports, 1962, pp. 6,29 ff.; 33 ILR, p. 48; the Cameroon v. Nigeria(Preliminary Objections) case, ICJ Reports, 1998, pp. 275, 303 and the Eritrea/Ethiopia
case, at pp. 50 ff.
16' See e.g. the Gulfof Maine case, ICJ Reports, 1984, p. 305; 71 ILR, p. 74.

'"

438

I N T E R N A T I O N A L LAW

While, of course, the consent of a ceding state to the cession is essential,
the attitude adopted by other states is purely peripheral and will not affectthe legality of the transaction. Similarly, in cases of the acquisition of title
over terra izullius, the acquiescence of other states is not strictly relevant
although of useful evidential effect.I6' However, where two or more states
have asserted competing claims, the role of consent by third parties ismuch enhanced. In the Eastern Greenland case,'62 the Court noted that
Denmark was entitled to rely upon treaties made with other states (apartfrom Norway) in so far as these were evidence of recognitionof Danish
sovereignty over all of Greenland.
Recognition and acquiescence are also important in cases of acquisitionof control contrary to the will of the former sovereign. Where the possession of the territor y is accompanied by emphatic protests on the partof the former sovereign, no title by prescription can arise, for such title
is founded upon the acquiescence of the dispossessed state, and in suchcircumstances consent by third states is of little consequence. However,
over a period of time recognition may ultimately validate a defective title,
although much will depend upon the circumstances, including the attitude of the former sovereign. Where the territory involved is part of thehigh seas (i.e. res communis), acquiescence by the generality of states may
affect the subjection of any part of it to another's sovereignty, particularly
by raising an estoppel.163
Acquiescence and recognition164are also relevant where the prescriptive title is based on what is called immemorial possession, that is, theorigin of the particular situation is shrouded in doubt and may have been
lawful or unlawful but is deemed to be lawful in the light of general acquiescence by the international community or particular acquiescence bya relevant other state. Accordingly, acquiescence may constitute evidence
reinforcing a title based upon effective possession and control, rendering
it definitive.' 65
Note that the Tribunal in Eritrea/Yetnen emphasised that 'Repute is also an important
ingredient for the consolidation of title: 114 ILR, pp. 1, 136.
16' PCIJ, Series AIB, No. 53, 1933, pp. 46, 51-2; 6 AD, pp. 95, 100.
16' See the A~iglo-NorwegianFisheries case, ICJ Reports, 1951, p. 116; 18 ILR, 17. 86.
16"otealso the role of recognition in the context of new states and territory, above, p. 414.
See the Land, Island and Maritime Frontier (El Salvador/Hortdurasj case, ICJ Reports, 1992,
pp. 351,579; 97 ILR, pp. 266,495. The Court, for example, in the Malaysia/Indonesia casefelt that it 'cannot disregard' the failure of Indonesia or its predecessor, the Netherlands, toprotest at the construction of lighthouses and other administrative activities on territoryis unusual: ICJ Reports, 2002,
claimed to be Indonesian and noted that 'such beha~~iourpara. 148.
16'

TERRITORY

439

Estoppel is a legal technique whereby states deemed to have consented
to a state of affairs cannot afterwards alter their p0siti0n.l~~
Althoughit cannot found title by itself, it is of evidential and often of practicalimportance. Estoppel may arise either by means of a prior recognitionor acquiescence, but the nature of the consenting state's interest is vital.
Where, for example, two states put forward conflicting claims to territory,
any acceptance by one ofthe other's position will serve as a bar to a renewalof contradictory assertions. This was illustrated in the Eastern Greenland
case,'67 where the Court regarded the Norwegian acceptance of treaties
with Denmark, which incorporated Danish claims to all of Greenland, as
preventing Norway from contesting Danish sovereignty over the area.
The leading case on estoppel is the Temple of Preah Vihear16' which
concerned a border dispute between Cambodia and Thailand. The frontier was the subject of a treaty in 1904 between Thailand and France (assovereign over French Indo-China which included Cambodia) which provided for a delimitation commission. The border was duly surveyed but
was ambiguous as to the siting of the Preah Vihear temple area. Thailand
called for a map from the French authorities and this placed the area
within Cambodia. The Thai government accepted the map and asked forfurther ~ 0 p i e s . A
l ~number~of other incidents took place, including avisit by a Thai prince to the temple area for an official reception with the
French flag clearly flying there, which convinced the International Court
that Thailand had tacitly accepted French sovereignty over the disputedarea.''' In other words, Thailand was estopped by its conduct from claiming that it contested the frontier in the temple area. However, it is to be
noted that estoppel in that case was one element in a complexity of relevant principles which included prescription and treaty interpretation. The
case also seemed to show that in situations of uncertainty and ambiguity,
See e.g. D. W. Bowett, 'Estoppel before International Tribunals andits Relation t o Acquiescence: 33 BYIL, 1957, p. 176; Thirlway, 'La~.vandProcedure:p. 29; A. Martin, L'Estoppel en
Droit Interizational Public, Paris, 1979; C. Dominice, 'A Propos du Principe de 1'Estoppel
en Droit des Gens' in Receuil d%tudes de Droit International en Homrriage a Paul Guggenheirn, Geneva, 1968, p. 327, and I. Sinclair, 'Estoppel and Acquiescence' in Fifty Years oftlie Iriternational Court ofJ11stice(eds. A. V. Lowe and M. Fitzmaurice), Cambridge, 1996,
p. 104.
167 PCIJ, Series AIB, No. 53, 1933, pp. 46, 68; 6 AD, pp. 95, 102.
ICJ Reports, 1962, p. 6; 33 ILR, p. 48. See D. H. Johnson, 'The Case Concerning theTemple of Preah Vihear: 11 ICLQ, 1962, p. 1183, and J. P. Cot, 'Cour Internationale derustice: Affaire du Temple de Preah \'ihear: AFDI, 1962, p. 217.
16' ICJ Reports, 1962, pp. 6, 23; 33 ILR, pp. 48, 62.
17' ICJ Reports, 1962, pp. 30-2; 33 ILR, p. 68.

'"

440

I N T E R N A T I O N A L LAW

the doctrines of acquiescence and estoppel come into their own,17' but
it would not appear correct to refer to estoppel as a rule of substantive law.172The extent to which silence as such may create an estoppel isunclear and much will depend upon the surrounding circumstances, inparticular the notoriety of the situation, the length of silence maintainedin the light of that notoriety and the type of conduct that would be seen as
reasonable in the international community in order to safeguard a legal
intere~t."~
The existence of an estoppel should not, however, be lightly
assumed.'74
Subsequent conduct itselfwould in the material sense include the examples of the exercise of sovereign activity, various diplomatic and similar
exchanges and records, and maps. So far as the status of maps is concerned, this will depend upon the facts of their production as an itemof evidence. It was noted in the Burkiiza Faso/Mali case that 'maps are
only extrinsic evidence of varying reliability or unreliability which may
be used, along with other evidence of a circumstantial kind, to establish
or reconstitute the real facts'.17' In such circumstances, courts have often
exhibited a degree of caution, taking into account, for example, that some
maps may be politically self-serving and that topographic knowledge at
the time the map is made may be ~nre1iable.l'~However, maps annexed totreaties illustrating the boundary so delimited will be accepted as authori t a t i ~ e . "Where~
there is a conflict between the text of an instrument andan annexed map, all the relevant circumstances will need to be considered in order to arrive at a correct understanding of the intentions of the'" Seealso the Award of the King of Spain case, ICJ Reports, 1960, p. 192; 30 ILR, p. 457.
See e.g. Jennings, Acquisition, pp. 47-51.
' See e.g. the Anglo-Norwegian Fisheries case, ICJ Reports, 1951, pp. 116, 139; 18 ILR,172

pp. 86, 101, the North Sea Continental Sheycases, ICJ Reports, 1969, pp. 3, 26; 41 ILR,
pp. 29,55, the GulfoflVIainecase, IC1 Reports, 1984, pp. 246,308; 71 ILR, pp. 74, 135, andthe ELSIcase, ICJ Reports, 1989, pp. 15,44;84 ILR, pp. 311,350. See also M. Koskenniemi,'L'Affaire du Passage par le Great Belt', AFDI, 1992, p. 905.
In Cameroon v. Nigeria (Prelirniriary Objections), the Court emphasised that, 'An estoppel~ ~ o u only
l d arise if by its acts or declarations Cameroon had consistently made it fully
clear that it had agreed to settle the boundary dispute submitted to the Court by bilateral
avenues alone. It would further be necessary that, by relying on such an attitude, Nigeria
had changed its position to its own detriment or had suffered some prejudice: ICJ Reports,
1998, pp. 275, 303.
IC1 Reports, 1986, 1313. 554, 582; 80 ILR, p. 440.
1 7 ~See the Eritrea/Ethiopia case, at p. 26. See also the Eritrea/Yernen case, 114 ILR, pp. 1,
94 ff.
177 114 ILR, pp. 1, 94 ff. Note that a treaty provision may provide for an avowedly incorrect
geographical feature on an annexed map as part of the boundary line: see Cameroon v.
Nigerta, ICJ Reports, 2002, para. 118.

TERRITORY

44l

authors of the relevant delimitation i n ~ t r u m e n t . Beyond'~~
this, it is possible that cartographic material, prepared in order to help draft a delimitation instrument, may itselfbe used as assistance in seeking to determine
the intentions ofthe parties where the text itselfis ambiguous, while moregenerally the effect of a map will in other circumstances vary according
to a number of factors ranging from its provenance and cartographic
quality to its consistency with other maps and the use made of it by theparties.'79
One argument has been that peaceful possession coupled with acts ofadministration may in the absence of protest found the basis of title by
way of 'historical ~onsolidation'.'~~
However, the International Court hasemphasised that this doctrine is 'highly controversial and cannot replace
the established modes of acquisition of title under international law'. It
was also noted that a period of such activity of some twenty years was 'far
too short, even according to the theory relied on it'.18'

Conclusions
It will be clear from the above that apart from the modes of acquisition that
rely purely on the consent of the state and the consequences of sovereignty(cession or accretion), the method of acquiring additional territory is by
the sovereign exercise of effective control. Both occupation and prescription are primarily based upon effective possession and, although the timeelement is a factor in prescription, this in fact is really concerned with theeffectiveness of control.
The principle of effective control applies in different ways to different
situations, but its essence is that 'the continuous and peaceful display ofterritorial sovereignty. . . is as good as title:lg2 Such control has to be deliberate sovereign action, but what will amount to effectiveness is relative
and will depend upon, for example, the geographical nature of the region,
the existence or not of competing claims and other relevant factors, suchas international r e a ~ t i 0 n . Itl ~will~ not be necessary for such control to beequally effective throughout the region.ls4 The doctrine of effectiveness17'

ICJ Reports, 2002, paras. 144-6. See also para. 151.

179 Ibid., para. 101. See also the Eritrea/Ethiopia case, at p. 26.
lX0 See e.g, the Anglo-hrororwegian Fixheriex case, ICT Reports, 1951, pp. 116, 138, and De

''I
18'

'''

Visscher, Theory and Reality, p. 209.
Cameroon V. hrigeria, ICJ Reports, 2002, para. 65. See above, p. 428.
Judge Huber, Island ofPa1ma.c case, 2 R I M , pp. 829, 839 (1928); 4 AD, p. 103.
See further above, p. 432.
See above, p. 433.

''"

442

I N T E R N A T I O N A L LAW

has displaced earlier doctrines relating to discovery and symbolic annexation as in themselves sufficient to generate title.''' Effectiveness has also
a temporal as well as a spatial dimension as the doctrine of intertemporallaw has emphasised, while clearly the public or open nature of the control
is essential. The acquiescence of a party directly involved is also a very
important factor in providing evidence of the effectiveness of control.
Where a dispossessed sovereign disputes the control exercised by a newsovereign, title can hardly pass. Effectiveness is related to the international
system as a whole, so that mere possession by force is not the sole determinant of title. This factor also emphasises and justifies the role playedby recognition.
Bilateral recognition is important as evidence of effective control andshould be regarded as part of that principle. International recognition,
however, involves not only a means of creating rules of international law
in terms of practice and consent of states, but may validate situationsof dubious origin. A series of recognitions could validate an unlawful
acquisition of territory and could similarly prevent effective control fromever hardening into title.ls6 The significance of UN recognition is selfevident, so that the UN Security Council itself could adopt a binding
resolution ending a territorial dispute by determining the boundary inquestion.'s7
Sovereign territory may not only be acquired, it may also be lost in
ways that essentially mirror the modes of acquisition. Territory may belost by express declaration or conduct such as a treaty of cession or acceptance of secession; by loss of territory by erosion or natural geographic
activity or by acquiescence through prescription. Further, territory may

See in this context article 35 ofthe General Act of the Congress of Berlin, 1885, in which
the parties recognised the obligation to 'ensure the establishment of authority in theregions occupied by them on the coast of the African continent'.
lS6 See e.g. Security Council resolution 216 (1965) concerning Rhodesia; General Assembly
resolution 3 116.4and Security Council Statements of2 1 September 1979 and 15 December
1981 concerning the South African Bantustans; Security Council resolution 541 (1983)
Republic of Northern Cyprus' and Security Council resolution
with regard to the 'T~~rkish
662 (1990) concerning the Iraqi annexation of Kuwait.
la' See particularly Security Couilcil resolution 687 (1991) in which the international boundary between K~nlruaitand Iraq was deemed to be that agreed by both parties in 'Minutes'
agreed in 1963. This boundary was then formally guaranteed by the Council in Section
A, paragraph 4 of this resolution. See e.g. M. H. Mendelson and S. C. Hultoi~,'The IraqKuwait Boundary', 64 BYIL, 1993, p. 135. See also Security Council resolutioll833 (1993)
and Sl26006.
Ix5

TERRITORY

443

be abandoned, but in order for this to operate both the physical act ofabandonment and the intention to surrender title are required."'Territorial integrity, self-determination and sundry claims
There are a number of other concepts which may be of some relevancein territorial situations ranging from self-determination to historical andgeographical claims. These may not necessarily be legal principles as such
but rather purely political or moral expressions. Although they may be extremely persuasive within the international political order, they would notnecessarily be juridically effective. One of the core principles of the international system is the need for stability and finality in boundary questions
and much flows from this.'89 Case-law has long maintained this principle.190 Reflective of this concept is the principle of territorial integrity.
The principle of the territorial integrity of states is well established andis protected by a series of consequential rules prohibiting interference
within the domestic jurisdiction ofstates as, for example, article 2 ( 7 ) ofthe
United Nations Charter, and forbidding the threat or use of force against
the territorial integrity and political independence of states, particularly
article 2(4) of the United Nations Charter. This principle has been particularly emphasised by Third World states and also by other regions.19'
However, it does not apply where the territorial dispute centres upon
uncertain frontier demarcations. In addition, the principle appears toconflict on the face of it with another principle of international law, thatof the self-determination of peoples.lg2
This principle, noted in the United Nations Charter and emphasisedin the 1960 Colonial Declaration, the 1966 International Covenants on
Principles, p. 142; Oppelzlleirn'j International Law, pp. 716-18, and
G. Marston, 'The British Acquisition of the Nicobar Islands, 1869: 69 BYIL, 1998, p. 245.
See also e.g. the Eastern Greenland case, PCIJ, Series AIB, No. 53, 1933, p. 47; 6 AD, p. 95.
l X ySee K. H. Kaikobad, 'Some Observations on the Doctrine of the Continuity and Finalityof Boundaries', 54 BYIL, 1983, p. 119, and Shaw, 'Heritage of States', pp. 75, 81.
190 See e.g. the Temple case, ICJ Reports, 1962,1317 6, 34; 33 ILR, 17.48; the LibyalChad case,
ICJ Reports, 1994, pp. 6, 37; 100 ILR, p. 1; the Beagle Channel case, 21 RIAA, pp. 55, 88;
52 ILK, p. 93, and the DubailSharjah case, 91 ILK, pp. 543, 578.
'" See generally, Shaw, Title to Territory, chapter 5. But see, as regards Europe, Principle 111of the Helsinki Final Act, 14 ILM, 1975, p. 1292 and the Guidelines on Recognition of
New States in Eastern Europe and the Soviet Union adopted by the European Community
and its member states on 16 December 1991, 92 ILK, p. 173.
19' See Burkina Faso v. Mali, ICJ Reports, 1986, pp. 554, 565; 80 ILK, p. 469.
lSS See e.g. Brownlie,

444

I N T E R N A T I O N A L LAW

Human Rights and the 1970 Declaration on Principles of InternationalLaw, can be regarded as a rule of international law in the light of, inter alia,
the number and character of United Nations declarations and resolutions
and actual state practice in the process of decolonisation. However, it has
been interpreted as referring only to the inhabitants of non-independent
territories."~ractice has not supported its application as a principle
conferring the right to secede upon identifiable groups within alreadyindependent states.lY4The Canadian Supreme Court in the Reference Re
Secession of Quebec case declared that 'international law expects that theright to self-determination will be exercised by peoples within the framework of existing sovereign states and consistently with the maintenance ofthe territorial integrity of those states','" and that the right to unilateralsecession 'arises only in the most extreme of cases and, even then, under
carefully defined ~ i r c u r n s t a n c e s ' The. ~ ~ ~only arguable exception to thisrule that the right to external self-determination applies only to colonialsituations might be where the group in question is subject to 'extreme
and unremitting persecution' coupled with the 'lack of any reasonable
prospect for reasonable challenge',19' but even this is controversial not
least in view of definitional difficultie~."~The situation of secession isprobably best dealt with in international law within the framework of aprocess of claim, effective control and international recognition.
Accordingly the principle of self-determination as generally acceptedfits in with the concept of territorial integrity,lY9as it cannot apply once a
193 As to the application of the principle to Gibraltar, see UKMIL, 70 BYIL, 1999, p. 443.
194 See 1. Crawford, 'State Practice and International Law in Relation to Secession', 69 BYIL,

1998, p. 85; Nguyen Quoc Dinh et al., Droit Interv~atioizal Public, p. 525, and SelfDetermination in lnternatiorial Law: Quebec and Lessons Learned (ed. A. Bayefsky), The
Hague, 2000. See also above, chapter 5, p. 225. Self-determination does have a continuing application in terms of human rights situations within the territorial framework of
independent states (i.e. internal self-determination), ibid.
""1998)161 DLR (4th) 385,436; 115 ILR, p. 536.
196 (1998) 161 DLR (4th) 385,438.
A. Cassese, Self-Determination ofPeoples, Cambridge, 1995, p. 120. See also T. Musgrave,
Self-Determination and National ~Ilinoritier,Oxford, 1997, pp. 188 ff.; J. Castellino, International Law and Self-Determination, The Hague, 2000, and K. Knop, Diilersity and
Self-Determination in blternational Law, Cambridge, 2002, pp. 65 ff. See also Judge
Wildhaber's Concurring Opinion (joined by Judge Ryssdal) in Loizidot~v. Turkey, rudgment of 18 December 1996, 108 ILR, pp. 443,470-3.
19' The Court in the Qtlebcc case, citing Cassese, Self-Determination, suggested that the rightto external self-determination (i.e, secession) might apply to cases of foreign occupation
and as a last resort where a people's right to internal self-determination (i.e. right topublic participation, etc.) was blocked, ibid, pp. 438 ff.
19' This analysis is supported by Burkina Fuso v. ~Mali,ICJ Reports, 1986, p. 554; 80 ILR,
p. 459.

"'TERRITORY

445

colony or trust territory attains sovereignty and independence, except, arguably, in extreme circumstances. Probably the most prominent exponent
ofthe relevance of self-determination to post-independence situations has
been Somalia with its claims to those parts of Ethiopia and Kenya populated by Somali tribes, but that country received very little support for its
demands."'
Self-determination cannot be used to further larger territorial claims
in defiance of internationally accepted boundaries ofsovereign states, but
it may be of some use in resolving cases of disputed frontier lines on
the basis of the wishes of the inhabitants. In addition, one may point to
the need to take account of the interests of the local population where thedetermination of the boundary has resulted in a shift in the line, at leastin the view of one of the parties.201Geographical claims have been raised
throughout history.202France for long maintained that its natural frontierin the east was the west bank of the Rhine, and the European powers
in establishing their presence upon African coastal areas often claimed
extensive hinterland territories. Much utilised also was the doctrine ofcontiguity, whereby areas were claimed on the basis of the occupation of
territories of which they formed a geographical continuation. However,such claims, although relevant in discussing the effectivity and limits ofoccupation, are not able in themselves to found title, and whether or not
such claims will be taken into account at all will depend upon the natureof the territory and the strength of competing claims.203A rather special
case is that of islands close to the coast of the mainland. The Tribunal
in Eritrea/Yemen stated that: 'There is a strong presumption that islands
Shaw, Title to Territory, chapter 5. See also the Moroccan approach, ibid.
See, with regard to the preservation of acquired rights, El Salvador/Honduras, ICJ Reports,
1992, pp. 351,400; 97 ILR, p. 112. See also Carneroon v. Nigeria, IC1 Reports, 2002, paras.
107 and 123. In particular, the Court stated in relation to the Bakassi peninsula andLake Chad regions which contain Nigerian populations, that 'the implementation of thepresent judgment will afford the parties a beneficial opportunity to co-operate in theinterests of the population concerned, in order notably to enable it to continue to haveaccess to educational and health services comparable to those it currently enjoys: ibid.,para. 316. The Court also referred to the commitment of the Cameroon Agent madeduring the Oral Pleadings to protect Nigerians living in the areas recognised as belonging
to Cameroon, ibid., para. 317 and para. V(C) of the Dispositif.
202 Shaw, Title to Territory, p. 195; Jennings, Acquisition, p. 74, and Hill, Clainis to Territory,pp. 77-80.
203 See the Eastern Greenland case, PCIr, Series AIB, No. 53, 1933, p. 46; 6 AD, p. 95, and theWestern Sahara case, IC1 Reports, 1975, pp. 12, 42-3; 59 ILR, pp. 14, 59. See generally,
B. Feinstein, 'Boundaries and Security in International Law and Practice: 3 Finnish YIL,
1992, p. 135.
'0°
'"I

446

I N T E R N A T I O N A L LAW

within the twelve-mile coastal belt will belong to the coastal state', to be
rebutted only by evidence of a superior title.204
Of some similarity are claims based upon historical gr~unds.~''This
was one of the grounds upon which Iraq sought to justify its invasion
and annexation of the neighbouring state of Kuwait in August 1 9 9 0 , ~ ' ~although the response ofthe UnitedNations demonstrated that such arguments were unacceptable to the world community as a whole.20' Morocco
too has made extensive claims to Mauritania, Western Sahara and partsof Algeria as territories historically belonging to the old Moroccan emire.^'^ But such arguments are essentially political and are of but little
legal relevance. The International Court of Justice in the Western Sahara
case2'' of 1975 accepted the existence of historical legal ties between thetribes of that area and Morocco and Mauritania, but declared that they
were not of such a nature as to override the right of the inhabitants of thecolony to self-determination and independence."'T h e doctrine of uti possidetis 211
The influence of the principle of territorial integrity may be seen in the
Latin American idea of utipossidetis, whereby the administrative divisionsof the Spanish empire in South America were deemed to constitute theboundaries for the newly independent successor states, thus theoretically'04

114 ILR, p p 1, 124 and 125.

"' See e.g. Shalt: Title to Territory, pp. 193-4; Tennings, Acquisition, pp. 76-8, and Hill, Claiins
to Territory, pp. 81-91.
"'See Keesiirg's Record of T4brld Events, p. 37635, 1990. Note that Iraq made a similar claim

O
''
'OS
'09
'lo

'I1

to Kuwait in the early 1960s, although not then taking military action: see rennings,
Acquisition, p. 77, note 2.
See e.g. Security Council resolution 662 (1990); Lauterpacht et al., The Kuwait Crisis:
Basic Docuulents, p. 90.
Shaw, Title to Territory, pp. 1 9 3 4 . Note also the claims advanced by Indonesia to West
Irian, ibid., p. 22.
ICJ Reports, 1975, p. 12; 59 ILR, p. 14.
See also Eritrea/Yernen, 114 ILR, pp. 1, 37 ff. The Tribunal also discounted the notion ofreversion of title, ibid., pp. 40 and 115.
See e.g. A. 0.Cukwurah, The Settlenierlt of Bourtdary Disputes in Internutiorla1 Law,
Manchester, 1967, p. 114; P. De La Pradelle, La FrontiBre, Paris, 1928, pp. 86-7;
D. Bardonnet, 'Les Frontieres Terrestres et la Relativite de leur Trace', 153 HR, 1976 V, 17.9;
Shaw, 'Heritage of States', p. 75; M. Kohen, Possession Corltestee et Souverainete Territoriale,
Geneva, 1997, chapter 6, and ibid., ' UtiPossidetis, Prescription et Pratique Subsequent i un43
Traite dans l'Affaire de l'lle de Kasikili/Sedudu devant la Cour Internationale de J~~stice',
German YIL, 2000, p. 253; G. Nesi, L'Uti Posxidetis Iuris nel Diritto Internuzionale, Padua,
1996; Luis Sanchez Rodriguez, 'L'Uti Possidetis et les Effectivites dans les Contentieux

TERRITORY

447

excluding any gaps in sovereignty which might precipitate hostilities andencourage foreign intervention."12 It is more accurately reflected in thepractice of African states, explicitly stated in a resolution of the Organisation of African Unity in 1964, which declared that colonial frontiers
existing as at the date of independence constituted a tangible reality andthat all member states pledged themselves to respect such borders.""
Practice in Africa has reinforced the approach of emphasising the territorial integrity of the colonially defined territory, witness the widespreaddisapproval of the attempted creation of secessionist states whether inthe former Belgian Congo, Nigeria or Sudan. Efforts to prevent the partition of the South African controlled territory of Namibia into separate
Bantustans as a possible prelude to a dissolution of the unity of the territory are a further manifestation of this.1214
The question of uti possidetis was discussed by a Chamber of the International Court in Burkina Faso v. Republic of ~ a l i , where~ ' ~ the compromis (or special agreement) by which the parties submitted the caseto the Court specified that the settlement of the dispute should be based
upon respect for the principle of the 'intangibility of frontiers inherited~ ~ noted, however, that the principle had in factfrom c o l o n i ~ a t i o n 'It, ~wasdeveloped into a general concept of contemporary customary international law and was unaffected by the emergence of the right of peoples
Territoriaux et Frontaliers', 263 HR, 1997, p. 149; J. M. Sore1and R. Mehdi, 'L' Uti Possidetis Entre la Consecration Juridique et la Pratique: Essai de Reactualisation', AFDI, 1994,
p. 11; Oppenheirrli Internetiorla1 Law, pp. 669-70; T. BartoS, 'Uti Possidetis. Quo Vadis?',18 Australian YIL, 1997, p. 37; 'L'Applicabilite de 1'Uti Possidetis J~urisdans les Situations
de Skcession ou de Dissolution d'~tats:Colloque, RBDI, 1998, p. 5, and DCrnernbrement.cd'Etats et Dtlimifatioris Territoriales (ed. 0 . Corten), Brussels, 1999.
See the Colombia-\'enezuela arbitral award, 1 R I M , pp. 223, 228 (1922); 1 AD, p. 84;
the Beagle Cllannel case, HMSO, 1977; 52 ILR, p. 93 and Land, Island and Maritiirle
Frontier Dispute (El SalvadorlHonduras), ICJ Reports, 1992, pp. 351,544; 97 ILR, pp. 266,
299-300.
AHGIRes. l6(1).See Security Council resolution 1234 ( 1999) which refers directly to OAU
resolution 16(1) and see also article 4(i) of the Protocol Relating to the Establishmentof the Peace and Security Council of the African Union, 2002, and the preamble to theProtocol on Politics, Defence and Security Cooperation adopted by the Southern African
Development Community in 2001: see further below, chapter 18,p. 930. See Sham., Title
to Territory, pp. 185-7. See also the Separate Opinion by rudge Ajibola in the Libya/Chadcase, ICJ Reports, pp. 6, 83 ff.; 100 ILR, pp. 1, 81 ff.
21"haw, Title to Territory, chapter 5. The principle has also been noted in Asian practice:see e.g. the Ternple of Preah Vihear case, ICJ Reports, 1962, p. 6; 33 ILR, p. 48, and theRann ofKutch case, 7 ILM, 1968, p. 633; 50 ILR, p. 2.
"5 ICJ Reports, 1986, p. 554; 80 ILR, p. 459.
'I6 ICJ Reports, 1986, p. 557; 80 ILR, p. 462.

"'

"'

448

I N T E R N A T I O N A L LAW

to self-determinati~n.~'~In the African context particularly, the obvious
purpose of the principle was 'to prevent the independence and stability of new states being endangered by fratricidal struggles provoked by
the challenging of frontiers following the withdrawal of the administering power:"8 The application of the principle has the effect of freezing
the territorial title existing at the moment of independence to produce
what the Chamber described as the 'photograph of the territory' at thecritical
The Chamber, however, went further than emphasising
the application of the principle to Africa. It declared that the principle
applied generally and was logically connected with the phenomenon of
independence wherever it occurred in order to protect the independence
and stability of new states2" Utipossidetis was defined as follows:
The essence ofthe principle lies in its primary aim ofsecuring respect for the
territorial boundaries at the moment when independence is achieved. Such
territorial boundaries might be n o inore than delimitations between different administrative divisions or colonies all subject to the same sovereign.
In that case, the application of the principle of u t i possidetis resulted inadministrative boundaries being transformed into international frontiersin the full sense of the term."'

The application ofthis principle beyond the purely colonial context wasunderlined particularly with regard to the former U S S R " " ~ ~ the former Yugoslavia. In the latter case, the Yugoslav Arbitration Commission
established by the European Community and accepted by the states of theformer Yugoslavia made several relevant comments. In Opinion No. 2,
the Arbitration Commission declared that 'whatever the circumstances,
the right to self-determination must not involve changes to existing"7"9

ICJ Reports, 1986, p. 565; 80 ILR, p. 469.
2'"bld.
ICJ Reports, 1986, p. 568; 80 ILR, p. 473. See, as to the notion of critical date, above,p. 431.
ICJ Reports, 1986, p. 565; 80 ILR, p. 470.
ICJ Reports, 1986, p. 566; 80 ILR, p. 459. This was reaffirmed by the Court in the Land,
Island and Maritime Frontier Dispute (El SaltladorlHonduras) case, ICJ Reports, 1992,
pp. 351, 386-7; 97 ILR, pp. 266, 299-300. The Court in the latter case went on to notethat ' u t i possidetis jt~risis essentially a retrospective principle, investing as internationalboundaries administrative limits intended originally for quite other purposes: ibid.,
p. 388; 79 ILR, p. 301. See also M. N. Shaw, 'Case Concerning the Land, Island andMaritime Frontier Dispute: 42 ICLQ, 1993, p. 929.
See e.g. R. Yakemtchouk, 'Les Conflits de Territoires and de Frontieres dans les Etats de
1'Ex-URSS',AFDI, 1993, p. 401. See also, with regard to the application of uti possidetis
to the dissolution of the Czech and Slovak Federal Republic, J. Malenorsky, 'Problemes
Turidiques Lies a la Partition de la Tchecoslovaquie: ibid., p. 328.

"'
"'

"2

TERRITORY

449

frontiers at the time of independence ( u t i possidetis juris) except where
the states concerned agree otherwise'.'" In Opinion No. 3, the Arbitration Commission emphasised that, except where otherwise agreed, theformer boundaries224became frontiers protected by international law.
This conclusion, it was stated, derived from the principle of respect for
the territorial status quo and from the principle of uti po~sidetis.~~'It isthus arguable that, at the least, a presumption exists that, in the absenceof evidence to the contrary, internally defined units within a pre-existingsovereign state will come to independence within the spatial frameworkof that territorially defined
Beyond uti possidetis
The principle of utipossidetis is not able to resolve all territorial or boundary problems.227Where there is a relevant applicable treaty, then this will
dispose of the matter completely.228Indeed, once defined in a treaty, aninternational frontier achieves permanence so that even if the treaty itself
223 92 ILR, p. 168. See also A. Pellet, 'Note sur la Commission d'Arbitrage de la Conference

Europ6enne pour la Paix en Yugoslavle: AFDI, 1991, p. 329, and Pellet, 'Activite de laCommission d'Arbitrage de la Conference Europeenne pour la Paix en figoslavie', AFDI,
1992, p. 220.
224 The Arbitration Commission was here dealing specifically with the internal boundaries
between Serbia and Croatia and Serbia and Bosnia-Herzegovina.
225 92 ILR, p. 171. The Arbitration Commission specifically cited here the views of theInternational Court in the Burkina F~zsoV. Mali case: see above, p. 447. Note also that
the Under-Secretary of State of the Foreign and Common~vealthOffice stated in Tanuary
1992 that 'the borders of Croatia ~villbecome the frontiers of indevendent Croatia, so
there is no doubt about that particular issue. That has been agreed amongst the Twelve,that will be our attitude towards those borders. They will just be changed from being
republican borders to international frontiers: UKMIL, 63 BYIL,1992, p. 719.
" 6 See e.g. M. N. Shaw, 'Peoples, Territorialism and Boundaries: 3 EJIL, 1997, pp. 477, 504,
but cf. S. Ratner, 'Drawing a Better Line: Uti Possidetis and the Borders of New States',
90 ATIL, 1996, pp. 590, 613 ff. and M. Craven, 'The European Community Arbitration
Commission on Yugoslavia', 65 BYIL, 1995, pp. 333, 385 ff.
Note that the International Court has emphasised that the principle of uti porsidetir
applies to territorial as well as boundary problems: see the Land, Island and Maritime
Frontier Dispute (El Salvador/Honduras) case, ICJ Reports, 1992, pp. 351, 387; 97 ILR,
pp. 266, 300.
See the Libya/Chad case, ICJ Reports, 1994, pp. 6, 38-40; 100 ILR, pp. 1, 37-9. See also
Opperzheirn's International Law, p. 663. Note that by virtue of article 11 of the Convention
on Succession of States in Respect of Treaties, 1978, a succession of states does not as such
affect a boundary established by a treaty or obligations or rights established by a treaty
and relating to the regiine of a boundary. Article 62 of the Vieilna Conveiltion on the
Law of Treaties, 1969 provides that the doctrine of rebus sic stantibus does not apply tobouildary treaties: see below, chapter 16.

"'

450

I N T E R N A T I O N A L LAW

were to cease to be in force, the continuance of the boundarywould be unaffected and may only be changed with the consent of the states directly
concerned.229On the other hand, where the line which is being transformed into an international boundary by virtue of the principle cannot
be conclusively identified by recourse to authoritative material, then theprinciple of uti possidetis must allow for the application of other principles and rules. Essentially these other principles focus upon the notion ofeffectivitts or effective control.
The issue was extensively analysed by the International Court in the
Burkina Faso/Mali case230and later in the Land, Islaizd and Maritime
Frontier Dispute (El Salvador/Honduras; Nicaragua Intervening) case.231
The Court noted the possible relevance of colonial effectivitts, immediate
post-colonial effectivitts and more recent effectivitks. Each of these might
be relevant in the context of seeking to determine the uti possidetis preindependence line. In the case of colonial effectivitks, i.e. the conduct of
the colonial administrators as proof of the effective exercise of territorial
jurisdiction in the area during the colonial period, the Court in the formercase distinguished between certain situations. Where the act concerned
corresponded to the title comprised in the uti possidetis juris, then theeffectivitks simply confirmed the exercise of the right derived from a legal
title. Where the act did not correspond with the law as described, i.e.
the territory subject to the dispute was effectively administered by a stateother than the one possessing the legal title, preference would be given to
the holder ofthe title. In other words, where there was a clear utipossidetis
line, this would prevail over inconsistent practice. Where, however, there
was no clear legal title, then the effectivitts 'play an essential role in showing
how the title is interpreted in pra~tice'.~"It would then become a matterfor evaluation by the Court with regard to each piece of practice adduced.
This approach was reaffirmed in the Land, Island and Maritime Frontier
Dispute case with regard to the grant of particular lands to individuals or
to Indian communities or records of such grants.2" The Court also notedthat it could have regard in certain instances to documentary evidenceof post-independence effectivitb when it considered that they afforded
indications with respect to the uti possidetis line, provided that there wasa relationship between the effectivitb concerned and the determination of"9

ICJ Reports, 1994, p. 37; 100 ILR, p. 36.

'" ICJ Reports, 1986, p. 554; 80 ILR, p. 440.
"' ICJ Reports, 1992, p. 351; 97 ILR, p. 266. See also Shaw, 'Land, Island and Maritime
Frontier Dispute'.

"' ICJ Reports, 1986, pp. 554,586-7; 80 ILR, pp. 440,490-1.
'" ICJ Reports, 1992, pp. 351,389; 97 ILR, pp. 266,302.

TERRITORY45l

the boundary in question.234Such post-independence practice could be
examined not only in relation to the identification of the utipossidetis line
but also in the context of seeking to establish whether any acquiescence
could be demonstrated both as to where the line was and as to whether
any changes in that line could be proved to have taken place.235This postindependence practice could even be very recent practice and was notconfined to immediate post-independence practice.
Where the uti possidetis line could be determined neither by authoritative decisions by the appropriate authorities at the relevant time nor
by subsequent practice with regard to a particular area, recourse tomight be necessary. What this might involve would depend upon
the circumstances. In the Burkina Faso/Mali case, it meant that a particular frontier pool would be equally divided between the parties;237in
the Land, Island and Maritime Frontier Dispute case, it meant that resort
could be had to an unratified delimitation of 1 ~ 6 9 . It
~ ~was' also notedthat the suitability of topographical features in providing an identifiable
and convenient boundary was a material aspect.239

International boundary rivers 240
Special rules have evolved in international law with regard to boundary rivers. In general, where there is a navigable channel, the boundary
will follow the middle line of that channel (the thalweg principle).241'j4

1CJ Reports, 1992, p. 399; 97 ILR, p. 266.

"' See e.g. ICJ Reports, 1992, pp. 408,485,514,525,563 and 565; 97 ILR, pp. 321,401,430,
441,479 and 481.

"' 1.e. equity in& legerri or within the context of existing legal principles.
'" ICJ Reports, 1986, pp. 554, 633; 80 ILR, pp. 440, 535.
"' ICJ Reports, 1992, pp. 351,514-15; 97 ILR, pp. 266,430-1.
'j9

"O

'41

ICJ Reports, 1992, p. 396; 97 ILR, p. 309.
See e.g. Oppenheim's Internutioncil Law, pp. 664-6; S. TI: Boggs, International Bomndaries,
New York, 1940; L. J. Bouchez, 'International Boundary Rivers', 12 ICLQ, 1963, p. 789;
A. Patry, 'Le Regime des Cours d'Eau Internationaux', 1 Canadian PIL, 1963, p. 172; R.
Baxter, The Latv oflnternational Waterways, Harvard, 1964; Verzijl, International Law, vol.
111, pp, 537 ff.; H. Dipla, 'Les Regles de Droit International en ma tie re de Delimitation
Fabri, 'Regles CouFluviale: Remise en Question?', 89 RGDIP, 1985, p. 589; H. RLI~Z
tumieres Generales et Droit International Fluvial: AFDI, 1990, p. 818; F. Schroeter, 'Les
Systemes de Delimitation dans les Fleuves Internationaux', AFDI, 1992, p. 948, and L.
Caflisch, 'Regles Generales du Droit des Cours d'Eaux Internationaux', 219 HR, 1989,
p. 75.
See e.g. State of New Jersey v. State of Delatvare 291 US 361 (1934) and the Laguna(Argentina/Chilej case, 113 ILR, pp. 1, 209. See, as to the use of the thahveg principlewith regard to wadis (dried river beds), mende el son and Hutton, 'Iraq-Kuwait Boundary',pp. 160 ff

452

I N T E R N A T I O N A L LAW

Where there is no such channel, the boundary line will, in general, be
the middle line of the river itself or of its principal arm.2" These respective boundary lines would continue as median lines (and so would
shift also) if the river itself changed course as a result of gradual accretion on one bank or degradation of the other bank. Where, however, theriver changed course suddenly and left its original bed for a new channel, the international boundary would continue to be the middle of thedeserted river bed.243It is possible for the boundary to follow one of
the banks of the river, thus putting it entirely within the territory of oneof the states concerned where this has been expressly agreed, but this isunusual.244

The F~zlkland~ s l a n d s ~ ~ 'The long dispute between the UI< and Argentina over the Falkland Islands(or Las Malvinas) well illustrates the complex factors involved in resolving issues as to title to territory. The islands were apparently discoveredby a British sea captain in 1592, but it is only in 1764 that competing
acts of sovereignty commenced. In that year the French established a settlement on East Falklands and in 1765 the British established one on
West Falklands. In 1767 the French sold their settlement to Spain. The
See e.g. the Argentine-Chile Frontier case, 38 ILR, pp. 10, 93. See also article 2 h ( l ) of
Annex I(a) of the Israel-lordan Treaty of Peace, 1994.
See e.g. the C h ~ ~ ~ i ~case,i z a 11l RIAA, p. 320.
"Qee e.g, the Iran-Iraq agreements of 1937 and 1975. SeeE. Lauterpacht, 'River Boundaries:
Legal Aspects of the Shatt-al-Arab Frontier: 9 ICLQ, 1960, p. 208; K. H. Kaikobad, The
Shatt-a/-Arab Bo~lndaryQuestion, Oxford, 1980, and Kaikobad, 'The Shatt-al-Arab River
Boundary: A Legal Reappraisal: 56 BYIL, 1985, p. 49. See, as to the question of equitable
sharing of international watercourses, S. McCaffrey, The Latv of I~iter~zatiollalN'atercourses, Oxford, 2001; Brownlie, Principles, p. 267; the Gabtikovo-Nagymaros case, ICT
Reports, 1997, pp. 7,54; 116 ILR, p. 1; the Convention on the Law ofthe Non-Navigational
Uses of International T17atercourses,1997, and the Separate Opinion of Judge Kooijmans,
Bots~vanalNaf~libia,
ICJ Reports, 1999, pp. 1045, 1148 ff. See also P. Wouters, 'The Legal Response to International T17ater Conflicts: The UN M7atercourses Convention and
Beyond: 42 German YIL, 1999, P. 293. Note that in March 2003, the establishment ofa Water Cooperation Facility to mediate in disputes between countries sharing a single
river basis was announced: see http://news. bbc.co.uk/l/hi/sci/tech/2872427.stm.
See e.g. J. Goebel, The Struggle for the Falklands, New Haven, 1927; F. L. Hoffmann
and 0 . M. Hoffmann, Sovereignty in Dispute, Boulder, CO, 1984; The Falkland Islandsd( 1983); Chatham House, The Falkland Ixlands Dispute - International
Review, C n ~ n 8787
Dimensions, London, 1982; W. M. Reisman, 'The Struggle for the Falklands: 93 Yale Law
Jotlrnal, 1983, p. 287, and M. Hassan, 'The Sovereignty Dispute over the Falkland Islands',
23 Va. JIL, 1982, p. 53. See also House of Con~monsForeign Affairs Committee, Session
198314,5th Report, 2681, and Cmnd 9447 (1985).

'42

'"

'"

TERRITORY

453

British settlement was conquered by the Spaniards in 1770 but returned
the following year. In 1774 the British settlement was abandoned for economic reasons, but a plaque asserting sovereignty was left behind. The
Spaniards left in 1811. In 1816, the United Provinces of the River Plate(Argentina) declared their independence from Spain and four years later
took formal possession of the islands. In 1829 the British protested andtwo years later an American warship evicted Argentinian settlers fromthe islands, following action by the ~ r ~ e n t i n i a n ~ o v e r nofother territory against American rebels. In 1833 the British captured the islands andhave remained there ever since. The question has arisen therefore as tothe basis of British title. It was originally argued that this lay in a combination of discovery and occupation, but this would be questionable inthe circumstance^.^^^ It would perhaps have been preferable to rely on
conquest and subsequent annexation for, in the 1830s, this was perfectlylegal as a method of acquiring territ~ry,'~'but for political reasons thiswas not claimed. By the 1930s the UK approach had shifted to prescription as the basis of title,248but of course this was problematic in the lightof Argentinian protests made intermittently throughout the period since
1833.
The principle of self-determination as applicable to a recognised British
non-self-governing territory has recently been much relied upon by the
UK government,249but something of a problem is posed by the very small
size of the territory's population (some 1,800) although this may not be
decisive.
It would appear that conquest formed the original basis of title, irrespective of the British employment of other principles. This, coupledwith the widespread recognition by the international community, including the United Nations, of the status of the territory as a British Colony
would appear to resolve the legal issues, although the matter is not uncontroversial.

'The common heritage of mankind'
The proclamation of certain areas as the common heritage of mankind
has raised the question as to whether a new form of territorial regime
246 See A. D. McNair, International Law Opinions, Cambridge, 1956, rol. I, pp. 299-300
247 See e.g. Lindley, Acquisition, pp. 160-5 and above, p. 422.

See e.g. P. Beck, Guardian, 26 July 1982, p. 7.
24"ee e.g. the Priine Minister, HC Deb., col. 946, 13 May 1982.
'48

454

I N T E R N A T I O N A L LAW

has been, or is, in process of being
In 1970, the UN General
Assembly adopted a Declaration of Principles Governing the Seabed andOcean Floor in which it was noted that the area in auestion and its resources were the common heritage of mankind. This was reiterated inarticles 136 and 137 of the 1982 Convention on the Law of the Sea, inwhich it was provided that no sovereign or other rights would be recognised with regard to the area (except in the case of minerals recoveredin accordance with the Convention) and that exploitation could only
take place in accordance with the rules and structures established by thec on vent ion.^" Article XI of the 1979 Moon Treaty emphasises that themoon and its natural resources are the common heritage of mankind,and thus incapable of national appropriation and subject to a particularregime of exploitation.252As is noted in the next section, attempts werebeing made to establish a common heritage regime over the Antarctic.
There are certain common characteristics relating to the concept. Likeres communis, the areas in question are incapable of national appropriation. Sovereignty is not an applicable principle and the areas in question
would not be 'owned', nor would any jurisdictional rights exist outside
the framework of the appropriate common heritage regime institutionalarrangements. However, while a res commuizis regime permits freedomof access, exploration and exploitation, a common heritage regime asenvisaged in the examples noted above would strictly regulate exploration and exploitation, would establish management mechanisms andwould employ the criterion of equity in distributing the benefits of suchactivity.
It is too early to predict the success or failure of this concept. The 1982
Law of the Sea Convention has only recently entered into force, while theMoon Treaty has the bare minimum of ratifications and its exploitation
provisions are not yet operative. As a legal concept within the framework of the specific treaties concerned, it provides an interesting contrast to traditional jus comrvzunis rules, although the extent of the"'See e.g. K. Baslar, The Concept of the Cornmoll Heritage of Mankind in International Law,'"

The Hague, 1998; Brownlie, Principles, chapter 13; A. Cassese, blternational Law, Oxford,
2001, p. 61; B. Larschan and B. C. Brennan, 'The Common Heritage of Mankind Principle
in International Law: 21 Colurrthia Journal ofhlterrlational Law, 1983, p. 305; R. Slrolfrum,'The Principle of the Common Heritage of Mankind: 43 ZaoRV, 1983, p. 312; S. Gorove,'The Concept of "Common Heritage of Mankind" ', 9 Sun Diego Law Review, 1972, p.
390, and C. Toyiler, 'Legal Iinplicatioils of the Coinmoil Heritage of Mankind: 35 ICLQ,
1986, p. 190.
See further below, chapter 11, p. 560.
See further below, chapter 10, p. 485.

"'

TERRITORY

455

management structures required to operate the regime may pose considerable problems.253

The polar regions 25"
The Arctic region is of some strategic importance, constituting as it does avast expanse of inhospitable territory between North America and Russia.
It consists to a large extent of ice packs beneath which submarines may
operate.
Denmark possesses Greenland and its associated islands within theregion,255while Norway has asserted sovereign rights over Spitzbergenand other islands. The Norwegian title is based on occupation and long
exploitation of mineral resources and its sovereignty was recognised bynine nations in 1920, although the Soviet Union had pr~tested."~More controversial are the respective claims made by canada2j7andthe former U S S R . ~ 'Use
~ has been made of the concept of contiguity to
253 Questions have arisen as to whether the global climate could be regarded as part of thecommon heritage of mankind. However, international environmental treaties have notused such terminology, but have rather used the phrase 'common concern of mankind:which is weaker and more ambiguous: see e.g, the Convention on Biological Diversity,
1992. See A. Boyle, 'International Law and the Protection of the Global Atmosphere'in Iilterizational Law and Global Climate Change (eds. D. Freestone and R. Churchill),
London, 1991, chapter 1, and P. Birnie and A. Boyle, Ii~terizationalLaw and the En~ir0i1rnent, 2nd edn, Oxford, 2002, p. 143.
'54 See e.g. D. R. Rothwell, The Polar Regions and the Development of Internatioizal Law,
Cambridge, 1996; O'Connell, International Law, pp. 448-50; T. 14T. Balch, 'The Arctic andAntarctic Regions and the Law of Nations', 4 AJIL, 1910, p. 265; G. Triggs, Interniztional
Laiv arldAz4straliar1Sovereignty in Antarctica, Sydney, 1986; R. D. Hayton, 'Polar Problems
and International Law', 52 ATIL, 1958, p. 746, and M. MThiteman, Digest of InternationalLaw, Washington, 1962, vol. 11, pp. 1051-61. See also W. Lakhtine, 'Rights over the Arctic',
24 AJIL, 1930, p. 703; Mouton, 'The International Regime of the Polar Regions: 101 HR,
1960, p. 169; F. Auburn, Antarctic Law and Politics, Bloomington, 1982; International Laivfor Antarctica (eds. F. Francioni and T. Scovazzi), 2nd edn, The Hague, 1997; A. D. Watts,
International Law and the Antarctic Treaty System, Cambridge, 1992; E . J. Sahurie, The
International Law of Antarctica, 1992; C. Joyner, Antarctica and the Latv of the Sea, The
Hague, 1992; The Antarctic Legal Regime (eds. C. Joyner and S. Chopra), Dordrecht,
1988; The Antarctic Environnlent and Interrzational Latv (eds. P. Sands, J. Verhoeven and
M. Bruce), London, 1992, and E. Franckx, Maritime Clainls in tkedrctic, The Hague, 1993.
25s See G. H. Hackworth, Digest oflrlterrzational Laiv, Washington, DC, 1940, vol. I.
256 Ibid., pp. 465 ff. See also O'Connell, Irlterrlatiorlal Law, p. 499.
"' Hack~vorth,Digest, vol. I, p. 463. But note Canadian government statements denyingthat the sector principle applies to the ice: see e.g. 9 ILM, 1970, pp. 607, 613. See also I.
Head, 'Canadian Claims to Territorial Sovereignty in the Arctic Regions', 9 McGill Laiv
Journal, 1962-3, p. 200.
Hack~vorth,Digest, vol. I, p. 461.

"'

45 6

I N T E R N A T I O N A L LAW

assert claims over areas forming geographical units with those alreadyoccupied, in the form of the so-called sector principle. This is based on
meridians of longitude as they converge at the North Pole and as they
are placed on the coastlines of the particular nations, thus producing aseries of triangular sectors with the coasts of the Arctic states as theirbaselines.
The other Arctic states of Norway, Finland, Denmark and the UnitedStates have abstained from such assertions. Accordingly, it is exceedingly
doubtful whether the sector principle can be regarded as other than apolitical proposition.259Part of the problem is that such a large partof this region consists of moving packs of ice. The former USSR madesome claims to relatively immovable ice formations as being subject to its
national sovereignty,260but the overall opinion remains that these are to
be treated as part of the high seas open to
Occupation of the land areas of the Arctic region may be effected bystates by relatively little activity in view of the decision in the Eastern
Greeizlaizd case262and the nature of the territory involved.
Claims have been made by seven nations (Argentina, Australia, Chile,
France, New Zealand, Norway and the United Kingdom) to the Antarctic
region, which is an ice-covered landmass in the form of an i~land.'~"Such claims have been based on a variety of grounds, ranging from mere
discovery to the sector principle employed by the South American states,
and most of these are of rather dubious quality. Significantly, the UnitedStates of America has refused to recognise any claims at all to Antarctica,
and although the American Admiral Byrd discovered and claimed Marie
Byrd Land for his country, the United States refrained from adopting
the claim.264Several states have recognised the territorial aspirations ofeach other in the area, but one should note that the British, Chilean andArgentinian claims overlap.265
See e.g. Oppenheim's International Laiv, p. 693.
See e.g. Lakhtine, 'Rights over the Arctic', p. 461.
See e.g. Balch, 'Arctic and Antarctic Regions', pp. 265-6.
PCIJ, Series AIR, No. 53, 1933, p. 46; 6 AD, p. 95.
See e.g. O'Connell, International Laiv, pp. 450-3; Mouton, 'International Regime', and
G. Triggs, 'Australian Sovereignty in Antarctica - Part I: 13 Melborlrile University Law Review, 1981, p. 123, and Triggs, Ir~terrzationalLaw nrzd Az~straliariSovereigiity in Antarctica.
See also UKMIL, 54 BYIL, 1983, pp. 488 ff.
264 See Hachvorth, Digest, vol. I, p. 457. See also DUSPIL, 1975, pp. 107-11, and Whiteinan,
Digest, vol. 11, pp. 250-4, 1254-6 and 1262.
265 See e.g. Cind 5900.
"'O

"O

"'

TERRITORY

457

However, in 1959 the Antarctic Treaty was signed by all states concerned with territorial claims or scientific exploration in the region.266Its
major effect, apart from the demilitarisation of Antarctica, is to suspend,
although not to eliminate, territorial claims during the life of the treaty.
Article IV(2) declares that:n o acts o r activities taking place while the present treaty is i n force shallconstitute a basis for asserting, supporting o r denying a claim t o territorial
sovereignty i n Antarctica o r create any rights of sovereignty in Antarctica.
N o new claim o r enlargement of a n existing claim t o territorial sovereignty
in Antarctica shall be asserted while the present treaty is i n force.

Since the treaty does not provide for termination, an ongoing regime
has been created which, because of its inclusion of all interested parties,
appears to have established an international regime binding on all."7
Subsequent meetings of the parties have resulted in a number of recommendations, including proposals for the protection of flora and fauna in
the region, and other environmental preservation measures.268
Of the current forty-three parties to the treaty, twenty-eight have consultative status. Full participation in the work of the consultative meetings
ofthe parties is reserved to the original parties to the treaty and those contracting parties which demonstrate substantial scientific research activity
in the area. Antarctic treaty consultative meetings take place annually.269
The issue of a mineral resources regime has been under discussion since
1979 by the consultative parties and a series of special meetings on thesubject held.270This resulted in the signing in June 1988 of the Convention on the Regulation of Antarctic Minerals Resource ~ctivities.~"The
See Handbook of the Antarctic Treaty System, US Department of State, 9th edn, 2002, alsoavailable at http://wwcv.antdiv.gov.au/default.a~~1?casid=3604.
Note that the Federal Fiscal Court of Germany stated in the Anturcticu Legal Status cases part of the sovereign territory of any state, 108 ILR, p. 654. See, asthat Antarctica ~ v a notto the UK view that the British Antarctic Territory is the oldest territorial claim to a partof the continent, although most of it was counter-claimed by either Chile or Argentina,
UKMIL, 71 BYIL, 2000, p. 603. Nevertheless, it was accepted that the effect ofthe Antarctic
Treaty was to set aside disputes over territorial sovereignty, ibid.
See e.g, the 1980 Convention on the Conservation ofAntarctic Marine Living Resources.
See also M. Howard, 'The Convention on the Conservation of Antarctic Marine Living
Resources: A Five Year Review: 38 ICLQ, 1989, p. 104.
269 The most recent being in St Petersburg in 2001 and W a r s ~ vin 2002: see e.g.
"6"'

http://1vc~~~~.scar.org/Treaty/ATCM0/02OmeetingY02Olist.
''O

See e.g. Keesing's Conternportzry Archives, p. 32834 and 21(9) UN Chronicle, 1984, p. 45.
See e.g. C.Joyner, 'The Antarctic Minerals Negotiating Process: 81 AJIL, 1987, p. 888.

458

I N T E R N A T I O N A L LAW

Convention provided for three stages of mineral activity, being defined asprospecting, exploration and development. Four institutions were to beestablished, once the treaty came into force (following sixteen ratifications
or accessions, including- the US, the former USSR and claimant states).
The Commission was to consist of the consultative parties, any otherparty to the Convention engaged in substantive and relevant researchin the area and any other party sponsoring mineral resource activity. A
Scientific, Technical and Environmental Advisory Committee consistingof all parties to the Convention was to be established, as were Regulatory
Committees, in order to regulate exploration and development activity
in a specific area. Such committees would consist of ten members of theCommission, including the relevant claimant and additional claimants
up to a maximum of four, the US, the former USSR and representation ofdeveloping countries. A system for Special Meetings of Parties, consistingof all parties to the Convention, was also provided for. Several countries
signed the on vent ion.^'^ However, opposition to the Convention began
to grow. The signing ofthe 1988 Convention on mineral resource activities
stimulated opposition and in resolution 43/83, adopted by the General
Assembly that year, 'deep regret' was expressed that such a convention
should have been signed despite earlier resolutions calling for a moratorium on negotiations to create a minerals regime in the Antarctic. Franceand Australia proposed at the October 1989 meeting of the signatories of
the Antarctic Treaty that all mining be banned in the area, which should
be designated a global 'wilderness reserve'.273
At a meeting of the consultative parties to the Antarctic Treaty in April
1991 the Protocol on Environmental Protection to the Antarctic Treaty
was adopted, article 7 of which prohibited any activity relating to mineral
resources other than scientific research. This prohibition is to continue
unless there is in force a binding legal regime on Antarctic mineral resource
activities that includes an agreed means of determining whether and, if so,
under which conditions any such activities would be acceptable. A review
conference with regard to the operation of the Protocol may be held after
it has been in force for fifty years if so requested.274In addition, a Committee for Environmental Protection was e~tablished.~"This effectively"' See e.g. the Antarctic Minerals Act 1989, which provided for a UK licensing system for
exploration and exploitation activities in Antarctica.
'" See Keesirlg's Record of Iliorld Events, p. 36989, 1989. ""rticle 25.
'75

G~~ardiail,
30 April 1991, p. 20. See also C. Redgwell, 'En\~ironmentalProtection i n Antarctica: The 1991 Protocol', 43 ICLQ, 1994, p. 599.

TERRITORY

459

marked the end of the limited mining approach, which had led to thesigning of the Convention on the Regulation of Antarctic Mineral Resource Activities. The Protocol came into force in 1998 and may be seen
as establishing a comprehensive integrated environmental regime for thearea.276
Leases and servitudes277
Various legal rights exercisable by states over the territory of other states,
which fall short of absolute sovereignty, may exist. Such rights are attachedto the land and so may be enforced even though the ownership of theparticular territory subject to the rights has passed to another sovereign.
They are in legal terminology formulated as rights in rem.
Leases of land rose into prominence in the nineteenth century as away of obtaining control of usually strategic points without the necessityof actually annexing the territory. Leases were used extensively in the Far
East, as for example Britain's rights over the New Territories amalgamatedwith Hong ~ o n g , ~and" sovereignty was regarded as having passed to thelessee for the duration of the lease, upon which event it would revert tothe original sovereign who made the grant.
An exception to this usual construction of a lease in international law
as limited to a defined period occurred with regard to the Panama Canal,
with the strip ofland through which it was constructed being leased to theUnited States in 1903 'in perpetuity'. However, by the 1977 Panama Canal
Treaty, sovereignty over the Canal Zone was transferred to Panama. The"' See e.g. D. R. Rothwell, 'Polar Environmental Protection and International Law: The 1991
Antarctic Protocol: 11 EJIL, 2000, p. 591. Four of the annexes (on environmental impact
assessment, conservation of flora and fauna, waste disposal and marine pollution) to theProtocol came into force in 1998 and the fifth (on the Antarctic protected area system) in
2002. A Malaysian initiative at the UN to consider making Antarctica a 'common heritageof mankind' appears to have foundered: see e.g. Redgwell, 'Environmental Protection',and General Assembly resolutions 38177 and 391152, and A1391583.
277 See e.g. Oppenlzeim's International Law, pp. 670 ff.; H. Reid, International Servitudes,
Chicago, 1932, and F. A. Vali, Servitudes in International Laiv, 2nd edn, London, 1958.
See also Parry, Digest, vol. IIB, 1967, pp. 373 ff., and article 12, Vienna Convention on
Succession of States in Respect of Treaties, 1978.
See 50 BFSP, 1860, p. 10 and 90 BFSP, 1898, p. 17. See now 23 ILM, 1984, pp. 1366 ff. for
the UK-China agreement on Hong Kong. See also Cmnd 9543 (1985) and the 1985 Hong
Kong Act, providing for the termination of British sovereignty and jurisdiction over the
territory as from 1 July 1997.

460

I N T E R N A T I O N A L LAW

United States had certain operating and defensive rights until the treaty
ended in 1 9 9 9 . ~ ~ ~A servitude exists where the territory of one state is under a particular restriction in the interests of the territory of another state. Suchlimitations are bound to the land as rights in rem and thus restrict thesovereignty of the state concerned, even if there is a change in controlof the relevant territory, for instance upon merger with another state orupon d e c o l o n i ~ a t i o n . ~ ~ ~Examples of servitudes would include the right to use ports or rivers
in, or a right of way across, the territory so bound, or alternatively an
obligation not to fortify particular towns or areas in the territory.281
Servitudes may exist for the benefit of the international community
or a large number of states. To give an example, in the Aaland Islands
case in 1920, a Commission of Jurists appointed by the Council of the
League of Nations declared that Finland since its independence in 1918
had succeeded to Russia's obligations under the 1856 treaty not to fortify
the islands. And since Sweden was an interested state in that the islands
are situated near Stockholm, it could enforce the obligation although nota party to the 1856 treaty. This was because the treaty provisions had
established a special international regime with obligations enforceable
by interested states and binding upon any state in possession of thei~lands.~''Further, the Tribunal in Eritrea/Yemen noted that the traditional open fishing regime in the southern Red Sea together with thecommon use of the islands in the area by the populations of both coasts
was capable of creating historic rights accruing to the two states in dispute in the form of an international servitude.283The award in this caseemphasised that the findings of sovereignty over various islands in the
Red Sea entailed 'the perpetuation of the traditional fishing regime in theregion'.'84
The situation of the creation of an international status by treaty, whichis to be binding upon all and not merely upon the parties to the treaty, is acomplex one and it is not always clear when it is to be presumed. However,279 See e.g. 72 AJIL, 1978, p. 225. This superseded treaties of 1901, 1903, 1936 and 1955

governing the Canal. See also A. Rubin, 'The Panama Canal Treaties', YBJVA, 1981,
p. 181.
See the Right ofpassage case, ICJ Reports, 1960, p. 6; 31 ILR, p. 23.
See e.g. J. B. Brierly, The Law of Nations, 6th edn, Oxford, 1963, p. 191.
283 114 ILR, pp. 1,40-1.
LNOJ, Sp. Supp n o 3, 1920, pp. 3, 16-19.
?84 Ibid., p. 137.

"'

TERRITORY

46lrights attached to territory for the benefit of the world community werecreated with respect to the Suez and Panama Canals. Article 1 of the~ ~ ~ that 'the Suez Maritime
Constantinople Convention of 1 8 8 8 declared
Canal shall always be free and open in time of war as in time of peace, toevery vessel of commerce or of war without distinction of flag' and thisinternational status was in no way affected by the Egyptian nationalisationof the Canal Company in 1956. Egypt stressed in 1957 that it was willing
to respect and implement the terms of the Convention, although in fact
it consistently denied use of the canal to Israeli ships and vessels boundfor its shores or carrying its goods.286The canal was reopened in 1975
following the disengagement agreement with Israel, after a gap of eight
years.287Under article V of the 1979 Peace Treaty between Israel andEgypt, it was provided that ships of Israel and cargoes destined for orcoming from Israel were to enjoy 'the right of free passage through theSuez Canal.. . on the basis of the Constantinople Convention of 1888,
applying to all nations'.
In the Wimbledon case,288the Permanent Court of International Justicedeclared that the effect of article 380 of the Treaty of Versailles, 1919
maintaining that the Kiel Canal was to be open to all the ships of all
countries at peace with Germany was to convert the canal from an internal
to an international waterway 'intended to provide under treaty guarantee
easier access to the Baltic for the benefit of all nations of the world'.
Some of the problems relating to the existence of servitudes have arisen
by virtue of the North Atlantic Fisheries arbitration.289This followed atreaty signed in 1818 between the United Kingdom and the United States,
awarding the inhabitants of the latter country 'forever . . . the liberty totake fish of every kind' from the southern coast of Newfoundland. The
argument arose as to Britain's capacity under the treaty to issue fishingregulations binding American nationals. The arbitration tribunal decided
that the relevant provision of the treaty did not create a servitude, partly
because such a concept was unknown by American and British statesmenat the relevant time (i.e. 1818). However, the terms of the award do leave
open the possibility of the existence of servitudes, especially since the"' See e.g. O'Connell, international Law, pp. 582-7.
'86

See Security Council Doc. S13818, 51 AJIL, 1957, p. 673.

"'See DUSPIL, 1974, pp. 352-4 and 760.

'** PCIJ, Series A, No. 1, 1923, p. 24; 2 AD, p. 99. See generally Baxter, Law of lilterilational""1

Water~vtzys.
RIAA, p. 167 (1910).

462

I N T E R N A T I O N A L LAW

tribunal did draw a distinction between economic rights (as in the case)and a grant of sovereign rights which could amount to a servitude ininternational law.290
Suggestions for further reading
A. Cassese, Self-Determination of Peoples, Cambridge, 1995
J. Crawford, The Creation of States in International Law, Oxford, 1979
J. Crawford, 'State Practice and Internatio~lalLaw in Relation to Secession: 69 BYIL,
1998, p. 85
R. Y. Jennings, Tlze Acquisition of Territory in Ii~ternationulLaw, Manchester, 1963
M. N. Shaw, Title to Territory in Africa, Oxford, 1986"O

See, as to landlocked states, below, chapter 11, p. 541.

Air law and space law

Air law1

There were a variety of theories prior to the First World War with regard
to the status of the airspace above states and territorial waters. One view
was that the airspace was entirely free, another that there was, upon an
analogy with the territorial sea, a band of 'territorial air' appertaining to
the state followed by a higher free zone, a third approach was that all theairspace above a state was entirely within its sovereignty, while a fourthview modified the third approach by positing a right of innocent passage
through the air space for foreign civil a i r ~ r a f t There.~
was a particularantagonism between the French theory of freedom of the air and theBritish theory of state ~overeignty,~
although all agreed that the airspace
above the high seas and terrae nullius was free and open to all.

'See generally B. Cheng, The Law oflvrternational Air Transport, London, 1962; C. Sha~vcrossand K. M. Beaumont, Air Law, 4th edn, London, regularly updated; A. Lowenfield, Aviation
Laiv: Cases and Materials, 1981; N. M a t t Traitb de Droit Airien-Aironat~tiqtle,3rd edn,
Paris, 1980, and hlatte, Treatise on Air-Aeronautical Law, Montreal, 1981; R. Y. Jennings,'Some Aspects of the International Law of the Air: 75 HR, 1949, p. 5, and B. Cheng and
R. A ~ ~ s t i'Air
n , Law' in The Present State of International Law (ed. M . Bos), London, 1973,
p. 183. See also Air and Space Law: De Lege Ferenda (eds. T . Z~vaanand Mendes de Leon),
Dordrecht, 1992; 1. Naveau, International Air Transport in a Changing World, Brussels,
1989; M . Folliot, Les Relations Abriennes Intcrnationales, Paris, 1985; I . H. DiederiksTTerschoor, An Introdtrctior~ to Air Law, 6th edn, The Hague, 1997; K. G. Park, La Protection de la Sonverainetb Abrienne, Paris, 1991; M. Zylicks, International Air Transport
Law, Dordrecht, 1992; J. C. Batra, International Air Latv: Incltrding Warsatv Convention
1929 and Montreal Convention 1999, New Delhi, 2003; Oppenheim's International Law(eds. R. Y. Jennings and A. D. Watts), 9th edn, London, 1992, pp. 650 ff., and Nguyen
Quoc Dinh, P. Daillier and A. Pellet, Droit International Public, 7th edn, Paris, 2002,
pp. 1244 ff.
See e.g. Oppenhein~4International Law, pp. 650-1, and Matte, Treatise, chapters 4 and 5.
See Matte, Treatise, chapter 5. " bid., p. 83.

464

I N T E R N A T I O N A L LAW

However, the outbreak of the First World War, with its recognition of
the security implications of use of the air, changed this.
The approach that then prevailed, with little dissension, was based
upon the extension of state sovereignty upwards into airspace. This was
acceptable both from the defence point of view and in the light of evolving
state practice regulating flights over national territory." It was reflectedin the 1919 Paris Convention for the Regulation of Aerial Navigation,
which recognised the full sovereignty of states over the airspace above
their land and territorial sea.6 Accordingly,- . the international law rules
protecting sovereignty of states apply to the airspace as they do to theland below. As the International Court noted in the Nicaragua case, 'The
principle of respect for territorial sovereignty is also directly infringed by
the unauthorised overflight of a state's territory by aircraft belonging toor under the control of the government of another ~ t a t e . ' ~Sovereignty was understood to extend for an unlimited distance into
the airspace (usque ad c o e l ~ r n )although,~
this has been modified by the
new law of outer space.9
One question that did arise immediately concerned the apparent similarity of treatment as regards sovereignty between the airspace and theterritorial sea and centred upon the right of passage that exists throughterritorial waters. It questioned whether there existed a right of passage
through the airspace above states. This issue had, of course, tremendous
implications for the development of aerial transport and raised the possibility of some erosion of state exclusivity. However, it is now accepted thatno such right may be exercised in customary international law.'' Aircraft' Ibid., pp. 91-6.
Article 1. Each party also undertook to accord in peacetime freedom of innocent passage
to the private aircraft of other parties so long as they complied with the rules made by orunder the authority of the Convention. Articles 5-10 also provided that the nationality ofaircraft would be basedupon registration and that registration would take place in the stateof which their owners were nationals. An International Commission for Air Navigation
was also established. See also the 1928 American Convention on Commercial Aviation.
ICJ Reports, 1986, pp. 14, 128; 76 ILR, p. 1.
Based upon common law principles: see e.g. Co.Litt. 4 and bT.
Blackstone, Commentaries,
Oxford, 1775, vol. 11, chapter 2, p. 18.
The UK has taken the view that, 'National sovereignty applies to airspace; no sovereignty
applies in outer space. There is no established definition of the height at which airspaceends and outer space begins: UKMIL, 70 BYIL, 1999, p. 521. It has also been noted that,'for practical purposes the limit is considered to be as high as any aircraft can fly: ibid.,
p. 520.
l o See e.g. O p p e n h e i m i International Laiv, p. 652. It should, however, be noted that articles
38 and 39 of the Convention on the Law of the Sea, 1982 provide for a right of transit
passage through straits used for international navigation between one part of the high seas

A I R LAW AND SPACE LAW

465

may only traverse the airspace of states with the agreement of those states,
and where that has not been obtained an illegal intrusion will be involved
which will justify interception, though not (save in very exceptional cases)
actual attack." This is discussed later.

The structure
The present regime concerning air navigation developed from the 1944
Chicago Conference and the conventions adopted there.
The Chicago Convention on International Civil viat ti on,'^ which does
not apply to state aircraft (for example, military, customs and police aircraft),13 emphasises the complete and exclusive sovereignty of states overtheir airspace'%nd article 6 reinforces this by providing that no scheduledinternational air service may be operated over or into the territory of acontracting state without that state's special authorisation. However, thestates parties to the Convention qualified their sovereignty by agreeing inarticle 5 that aircraft of other contracting states:
not engaged in scheduled international air service, shall have the right. . . tomake flights into or in transit non-stop across [their territory] and to makestops for non-traffic purposes without the necessity of obtaining prior permission and subject to the right ofthe state flown over to require landing."

This provision has in practice been viewed as an exception to the generalprinciple enumerated in article 6 of the Convention, particularly sincestates have required that permission be obtained prior to the acceptanceof charter flights over or into their territory, even though such flights do
not really come within the meaning of article 6 or within the definitionof scheduled international air services put forward by the Council ofthe International Civil Aviation Organisation in 1952. It is one moreor an exclusive economic zone and another part of the high seas or an exclusive economic
zone for aircraft as well as ships. Note also that under article 53 of this Convention, aircraft
have a right of overflight with regard to designated air routes above archipelagic waters.
See also Pan A m Airways v. The Queen (1981) 2 SCR 565; 90 ILR, p. 213, with regard to
the exercise of sovereignty over the airspace above the high seas.
l 2 See e.g. New Zealand Air Line Pilots' Association Inc. v. Attorney-General [I9971 3 NZLR
269; 120 ILR,p. 551.
l3 Article 3.
l 4 Article 1. This includes the airspace above territorial waters, article 2.
l5 Note also that under article 9, states inay for reasons of military necessity or public safetyprohibit or restrict the aircraft of other states on a non-discriminatory basis from flying
over certain areas of their territory.

466

I N T E R N A T I O N A L LAW

example of state practice modifying the original interpretation of a treaty
stipulation.16 By article 17, aircraft have the nationality of the state inwhich they are registered, although the conditions for registration are amatter for domestic law.17
The Chicago International Air Services Transit Agreement, 1944, dealing with scheduled international air services, specified that contracting
states recognised the privileges of such services to fly across their territories
without landing and to land for non-traffic purposes. This 'two freedoms'
agreement, as it has been termed, was accompanied by a 'five freedoms'
agreement, the 1944 Chicago International Air Transport Agreement,
which added to the aforementioned provisions extensive privileges oftaking on and putting down passengers, mail and cargo in the territories
of contracting states. However, this agreement was not ratified by many
countries and the USA withdrew from it in 194618 because it was feltthat too much of commercial value had been granted away. Thus, thatagreement is of little importance today.
This has meant in actual practice that the regulation of internationalscheduled services has been achieved by an extensive network of bilateralagreements such as the UK-USA Bermuda Agreement of 1946,19since theagreed 'two freedoms' only relate to transit and not to traffic rights. The
hard bargaining that goes on in negotiations between states to arrange
the operation of the remaining 'three freedoms' attests to the commercial
as well as strategic significance connected with such privileges. But thetechnological advances of advanced design and 'jumbo' jets as well as
the proliferation of state airlines has put this somewhat unwieldy system
under great strain.
The Chicago Conference also led to the creation of the International Civil Aviation Organisation (ICAO), a UN specialised agency
based in Canada, which concentrates upon technical and administrative
The distinction between scheduled and non-scheduled international air services is notentirely clear: see here D. P. O'Connell, International Luiv, 2nd edn, London, 1970, vol. I,
p. 521. See also the non-binding ICAO Council definition of 1952, Doc. 7278-C1841,
quoted in D. W. Greig, blternational Law, 2nd edn, London, 1976, p. 349. Note that underarticle 68, each contracting state to the Convention may designate the route to be followed
within its territory by any international air service and the airports which any such service
may use: see also Irlterrlational Law) Association: Report of the 63rd Conference at Warsaw,
London, 1988, pp. 835 ff.
l 7 See article 19.
l8 See Oppenheim's International Law, p. 656.
l9 Replaced by the Bermuda I1 Agreement of 1977. See e.g. Matte, Treatise, pp. 229-50. See
also the Heathroiv Airport User Charges Arbitration, 102 ILR, p. 215.
l6

A I R LAW AND SPACE LAW

467

co-operation between states in the field of civil aviation, ranging from theadoption of agreed safety standards to the encouragement of the expansion of navigational facilities2' ICAO's aims and objectives are to develop
the principles and techniques of international air navigation and to foster
the planning and development of international air t r a n ~ p o r t . ~It' has arange of powers from legal to technical and administrative powers and it
consists of an Assembly, a Council and such other bodies as may be necA range of important instruments on civil aviation issues havebeen adopted through ICAO or other bodiesz3
In the main, the Chicago Conference reaffirmed the principles agreed
in the 1919 Convention with regard to, for example, the sovereigntyof the state over its airspace and the need for permission to operate scheduled international air services. Air cabotage, i.e. the right tocarry traffic between points within the territory of a state, can be reserved exclusively to the state, as may traffic between the metropolitan
and colonial areas. The Chicago Conference system was to some extent undermined by the growth of bilateral agreements24as the means
to regulate international air transport, but many common principles may
be discerned in such agreements based as they are upon the Bermuda
model.
The Bermuda principles,25 in general, provide that the air transportfacilities available to the travelling public should bear a close relationshipto the requirements of the public; that there shall be a fair and equal
opportunity for the carriers of the two nations to operate on any route
between their respective territories; that in the operation by the air carriers
O'

Ibid., pp. 187-201. See also http://wcv~v.icao.org/.

" Article 44 of the Chicago Convention, 1944.
-- Article 43. There are, for example, Committees dealing with Air Transport, Joint Support

77

ofAir Navigation Services and Legal Matters, and an Air Navigation Commission. Note thestandard-settingwork of ICAO, e.g. the 1948 Convention on the International Recognitionof Rights in Aircraft and the 1955 Protocol to the 1929 TVarsa\v Convention. See generally
Shawcross and Beaumont, Air Law DII (2)-(19), and F. Kirgis, 'Aviation' in United Nations
Legal Order (eds. 0 . Schachter and C. C. Joyner), Cambridge, 1995, vol. 11, p. 825. Notealso the mechanisms available to settle international aviation disputes: see article 84;
T. Buergenthal, Law ibfakirlg in the International Civil Aviation Orgaanisation, Syracuse,
1969, part 111,and the Jurisdiction oftlle ICAO Council (Indiav. Pakistan) case, ICJ Reports,
1972, p. 46; 48 ILR, p. 331.
See e.g. the Convention on the Marking of Plastic Explosives for the Purpose of Detection,
1991 and the Convention on International Interests in Mobile Equipment, 2001.
24 See e.g. Cumulative DUSPIL 1981-8, Washington, 1994, vol. 11, pp. 2175 ff.
'5 See e.g. Jennings, 'Some Aspects: pp. 529 ff. and J. Dutheil de la Rochere, 'Aspects Noureaux
du Bilateralisme Aerien', AFDI, 1982, p. 914

''

468

I N T E R N A T I O N A L LAW

of either government of the trunk services described in the Annex of
the Agreement, the interest of the air carriers of the other government
shall be taken into consideration, so as not to affect unduly the services
which the latter provides on all or part of the same routes; and that itis the understanding of both governments that services provided by adesignated air carrier under the Agreement and its Annex shall retain, as
their primary objective, the provision of capacity adequate to the traffic
demands between the country of which the carrier is a national and thecountry of ultimate destination of the traffic. The right to embark or
to disembark on such services of international traffic-destined for andcoming from third countries at a point or points on the routes specified
in the Annex to the Agreement, shall be applied in accordance with thegeneral principles of orderly development to which both governments
subscribe and shall be subject to the general principle that capacity should
be related:(a) to traffic requirements between the country of origin and the countries of destination;(b) to the requirements of through airline operation; and(c) to the traffic requirements of the area through which the airline passes
after taking account of local and regional services; and that it is theintention of both governments that there should be regular and frequent consultation between their respective aeronautical authorities
and that there should thereby be close collaboration in the observation of the principles and the implementation of the provisions
outlined therein and in the Agreement and its ~ n n e x . ~ ~The UK denounced the Bermuda Agreement in 1976 on grounds ofinequity of share in the North Atlantic traffic, and in 1977 a new agreementwith the USA, Bermuda 11, was signed.27The basic principles of Bermuda
I were reaffirmed, but with new regulation techniques. British airlines
were allowed new non-stop services and the freedom to combine their
US points on each route as they chose. The problem of 'excess capacity'
26 See Matte, Treat~se,
pp 591-5'' See DUSPIL, 1977, pp. 638-41. See generally, as to dispute settlement

111 such cases,
B. Cheng, 'D~sputeSettlement In Bilateral Air Trailsport Agreements' in Settlement ofSpace Law Dispute, (ed. K. H . Bockstlegel), Deventer, 1980, p. 97. See also Shawcross andBeaumont, Air Law, DII7.

A I R LAW AND SPACE LAW

469

was dealt with by a consultative process and a Tariff Working Group wase~tablished.~~In addition to the International Civil Aviation Organisation there also
exists the International Air Transport Association (IATA) which consistsof most of the airline companies acting together to establish uniform fares
and tariffs subject to governmental approval. It is also an important forum
for discussion of relevant topics such as hijacking and attacks upon civil
aircraft.

The Warsaw Convention system 29
An issue which has become of great importance in recent years relates
to the liability of civil airline companies for death or injury suffered bypassengers. The 1929 Warsaw Convention for the Unification of Certain
Rules relating to International Carriage by Air established upper limits forsuch liability as well as dealing with other questions of responsibility andinsurance. The Convention was modified by the Hague Amendment of
1955,~'but as this proved unacceptable to the United States a subsequent
Agreement in Montreal was signed in 1966 raising the limits of liability
as regards airlines flying in or to the USA.
Article 20 of the Convention lays down the general rule that the carrier
is not liable if he proves that he and his agents have taken all necessary
measures to avoid the damage or that it was impossible for him or them totake such measures. The standard ofproofis
Article 22 provides for
Note also the US-UK dispute over Heathrow Airport User Charges: see Cumulative DUSPIL 1981-8, Washington, 1995,vol. II1,pp. 3137ff., and S. Witten, 'The US-UKArbitration
Concerning Heathrow Airport User Charges', 89 AJIL, 1995, p. 174. See also the Heatkrow
Airport User Charges Arbitration, 102 ILR, p. 215. Discussions have been continuing on
replacing the agreement, but complications have arisen due to European Union concerns:
see e.g. Cmd 4907 and h t t p : / / ~ . v ~ w . a v i a t i o n . d f t ~ g o v . u k i r e s ~ . h t m .
" See e.g. Matte, Treatise, pp. 377-496; and G. Miller, Liability in Irlternationaldir Transport,
Deuenter. 1977. and works cited in footnote 1. See also the 1961 Guadalaiara Convention, which deals with international carriage by air performed by a person other thanthe contracting carrier. See generally Shawcross and Beaumont, Air Law, DI'II; Cumulative DUSPIL 1981-8, vol. 11, pp. 2218 ff., and L. B. Goldhirsch, The Warsaw Convention
Annotated, Dordrecht, 1988.
See also the Guadalajara Convention, 1961 with regard to the situation where all or partof the contract of carriage is contracted to another carrier.
See e.g. Grein v. Imperial Airways Ltd [1937] 1 K B 50; 8 AD, p. 453; Ritts v. American
Overseas AirlinesUS Av R, 1949, p. 65 and American Smeltingand Refining Co. v. Philippine
Airlines Inc. US and C Av R, 1954, p. 221; 21 ILR, p. 286.
2S

''
"

470

I N T E R N A T I O N A L LAW

limits to the carrier's liability, defined in terms of gold French francs (orPoincare francs),32but liability is unlimited under article 25 if damage33
results from the wilful misconduct of the carrier or of one of his agents.34
Some help would undoubtedly be provided by the entry into force of theMontreal Additional Protocols of 1975, which seek inter alia to substituteSpecial Drawing Rights for the gold franc, and the Guatemala Protocol of1971, which seeks to introduce absolute liability with increased limits inpassenger and baggage cases. The ICAO Council and its Legal Committee
did indeed discuss a plan to encourage the ratification of the Montreal
Protocols in early 1990.~'
But the situation respecting the airlines' liability outside the USA is not
at all satisfactory and the limits are low. This has meant that claimants
are often tempted to sue not the airlines but, for example, the aircraft
manufacturers in the hope of obtaining higher levels of compensation.
However, here problems centre upon the choice of courts before whichto bring the issue, since the sums available in personal injury cases varyconsiderably from country to country and the grounds for liability are
not the same in all jurisdictions.
The whole position was graphically illustrated by the Turkish Airlines
tragedy in 1974. The crash of the American-built plane near Paris andthe loss of over 300 lives emphasised the complexity and injustice of thesituation respecting the amounts of compensation available for the deathor injuries caused to passengers.
The sums that could have been obtained from Turkish Airlines werelimited by the terms of the Warsaw Convention as amended, and accordingly the claimants turned to the American manufacturer of the defective
aircraft. But the position was that if the case had been brought in theUK, substantially less could have been obtained than if the matter came
before the American courts, which have a much more progressive system
of absolute liability and higher compensation limits with respect to personal injuries. In the end, a group of Britons succeeded in bringing their" See e.g. T W A Inc. v. Franklin Mint Corporation 23 I L M , 1984, p. 814.
" Damage in this instance has been interpreted to include loss: see Fotkergill v. Monarclz
j4"

Airlines [1980] 2 All ER 696; 74 ILR, p. 627.
Dissatisfaction with the M'arsaw system has led some municipal courts into the realms of
judicial creativity: see e.g. Chenv. Korean Air Lines Ltd 109 S. Ct. 1676 (1989) and Coccia v.
Turkish Airlines [I9851 Dir. Mar. 751 (Italian Constitutional Court).
See Shawcross and Beaumont, Air Laiv, DVII (57). Note that Protocol No. 4 to the Montreal
Convention established a form of strict liability with regard to international carriers ofcargo and postal items.

A I R LAW AND SPACE LAW

47lcases before Californian judges and were awarded satisfactory levels ofcompensation, in line with the American approach.36
Faced with the controversial situation of limited liability under the
Warsaw Convention system, a number of other avenues were tried. The
European Community, for example, adopted Regulation 2027197, whichstates that there shall be no financial limit on the liability of carriers. The
issue arose before the UK courts as to the compatibility of this instrument with the Warsaw Convention (as incorporated by the Carriage by
Air Act 1961). In Ex parte International Air Transport ~ s s o c i a t i o nthe,~~
Court held that the latter prevailed on the basis that the Warsaw Convention system was designed to achieve uniformity of the law concerning
liability and that the only remedies thus available to passengers were thoselaid down in that i n ~ t r u m e n tThe
. ~ ~deficiencies and complexities of thesystem led also to a series of voluntary arrangements with carriers underwhich the convention liability limits would be waived. For example, theUS Department of Transportation, with the co-operation of IATA andthe American Air Transport Association, approved a set of inter-carrier
agreements, which waived the liability limits completely.39
The Montreal Convention, 1999 was designed to replace the Warsaw
Convention system and obviate the need for a range of voluntary agreements and domestic regulations. Article 21 eliminates all arbitrary limits
on air carrier liability with respect to accident victims. The carrier may
avoid liability for the full amount of damages only if it proves that it was
not negligent or that a third party was solely responsible for the damages.
See e.g. DUSPIL, 1975, pp. 459-61 and 111re Paris Air Crash ofhfarcli 2, 1974 399 F.Supp.
732 (1975). See also Holmesv. Bangladesh Bimar~iCorporation [I9891 1 AC 1112; 87 ILR,
p. 365, where the House of Lords held that sovereign states retained the right to legislate
for domestic carriage by air within their own boundaries and a presumption existed thata positive connection with UK territory was required for UK rules to be applicable toa contract for carriage by air. The Air Law Committee of the ILA has suggested threeprinciples: (1) there should be an integrated system of civil aviation liability in international carriage by air and in respect of surface damage; (2) claims should be channelled
through the carrier and operator ofthe aircraft; and (3) compensation for personal injuries
should be based on the principle of absolute, unlimited and secured liability: see International Law Association, Report of the Sixteenth Confererzce at Montreal, London, 1982,
p. 553.
" 70 BYIL, 1999, p. 313.
This reaffirmed the House of Lords decision in Sidhuu. British Airways [I9471 AC 430 andthe decision of the US Supreme Court in El A1 Israel Airlines v. Tsui Y t ~ a nTseng (1999)
L.Ed.2d 575. The Court also noted that under article 234 of the Treaty of Rome, international law obligations arising prior to that treaty were to be unaffected by it.
3' See e.g. Order 96-10-7 (1996) and Order 97-1-2 (1997). See also the IATA Inter-Carrier
Agreement as supplemented by the Iinpleineiltatioil Agreement, 1995.
'6

''

472

I N T E R N A T I O N A L LAW

Article 21 also holds carriers strictly liable for the first 100,000 Special
Drawing Rights of proven damages for each passenger. Thus, the carrier
may not avoid liability for this amount, even if the carrier can prove thatthe harm was not caused by its negligence. The only exception to thisstrict liability is that the carrier may be able to avoid paying any damages
under the contributory negligence provisions of article 20.~'
The general significance of air transportation for the world community can be seen in the developing provisions relating to hijacking. The
airspace has become a vital means of communication and the various attacks upon aircraft condemned as threatening this freedom of the air. Theinternational community has adopted a series of conventions outlawing
hijacking and stipulating methods of enforcement, though with a limited
degree of success. Nevertheless, it is likely that the law relating to hijacking
will eventually turn that offence into a universal one on similar lines topiracy on the high seas.41
The Montreal Convention for the Suppression of Unlawful Acts against
the Safety of Civil Aviation, 1971 makes it an offence unlawfully andintentionally, inter alia, to perform an act of violence against a person on
board an aircraft in flight where the act is likely to endanger the safetyof the aircraft; to destroy an aircraft in service or so to damage it as tomake flight unsafe or impossible; to destroy, damage or interfere with theoperation of air navigation facilities or to communicate knowingly false
information if this is likely to endanger an aircraft in flight.
The ambit of this convention was extended by the Montreal Protocol,
1988 to include acts of violence against a person at an airport serving
international civil aviation which cause or are likely to cause serious injury
or death; destroying or seriously damaging the facilities of such an airport
or aircraft not in service located thereon and disrupting the services of
the airport.42
The terrorist attacks of the 1970s in particular gave rise to a seriesof cases, which have established, for example, that recovery for mental
distress arising out of an airplane hijack was possible under the Warsaw
Convention as amended by the Montreal Agreement of 1 9 6 6 , ~and~ that
The Convention was approved by EU Council Decision 20011539.
41 See further below, chapter 12, p. 549.

See the Aviation and Maritime Security Act 1990. Note that the ICAO Convention on theMarking of Plastic Explosives for the Purpose of Detection, 1991 calls upon all states totake measures to prohibit the manufacture of unmarked explosives, and established an
International Explosives Technical Commission.
4' KrystalV. BOAC403 FSupp 1322 (1975).

A I R LAW AND SPACE LAW

473

a carrier was liable for injuries to passengers that occurred in a terrorist
attack at Hellenikon Airport, Athens, at the departure gate of the termina1.44However, there was no liability in the case of an attack in thebaggage retrieval area of an air terminal building while the passengers
were waiting for their luggage as this was not 'disembarking' within themeaning of article 17.~'
The question of liability for damage caused by aircraft to persons on
the surface has also been dealt with. The Rome Convention on Damage
Caused by Foreign Aircraft to Third Parties on the Surface, 1952, and theMontreal Protocol of 1978, provide for compensation to be paid upon
proof only of damage caused by an aircraft in flight or by any person orthing falling therefrom. It is the operator of the aircraft that bears the
responsibility and under the 1952 Convention the registered owner of theaircraft is presumed to be the operator. The extent of liability is stipulated
and one of the reasons for the low level of ratification has been the relatively
limited level of compensation provided for. The system is based upon strict
liability and on clear connection being established between the damage
and the act causing the injury.

Unauthorised aerial intrusion and the downing of civilian airliners46
The International Court has emphasised that the principle of respect for
territorial sovereignty is directly infringed by the unauthorised overflightof a state's territory by aircraft belonging to, or under the control of, thegovernment of another state.47Such unauthorised overflight would justify
interception and a demand to land. However, a number of incidents haveoccurred since 1945 of the destruction of foreign aerial intruders. In 1955
a civil airliner of El A1 Israel Airlines was shot down while intruding into
Bulgarian airspace by Bulgarian warplanes. An action was commenced
Dayv. TIVA IIIC.528 F.2d 31 (1975), cert. denied 429 US 890.
4%ernandezv. Air France545 F.2d 279 (1976). See also Mangruiv. Cotnpagnie Nationalerlir
France 549 F.2d 1256 (1977), cert. denied, 45 Law Week 3801 (1977). See also e.g. Korean
Airlinesv. Entiope, RGDIP, 1983, p. 231; 89 ILR, p. 23; Haddadv. SocikteAirFrance, RGDIP,
1983, p. 468; 89 ILR, P. 26, and Air blterv. Bornier, AFDI, 1983, p. 848.
46 See e.g. 0.
Lissitzyn, The Treatment of Aerial Intruders in Recent Practice and International Law: 47 AJIL, 1953, p. 554; Greig, International Law, pp. 356-60; F. Hassan, 'The
Shooting Down of Korean Airlines Flight 007 by the USSR and the Furtherance of Air
Safety for Passengers: 33 ICLQ, 1984, p. 712, and 1. Dutheil de la Rochere, 'L'Affaire de
1'Accident du Boeing 747 de Korean Airlines', AFDI, 1983, p. 749. See also Matte, Treatise,
pp. 175-7, and Cumulative DUSPIL 1981-8, rol. 11, pp. 2167 ff.
47 The Nicaraguav. US case, ICJ Reports, 1986, pp. 3, 128; 76 ILR, pp. 349,462.
44

474

I N T E R N A T I O N A L LAW

before the International Court of Justice which, however, dismissed thecase on grounds of lack of jurisdiction. The Israeli Memorials emphasisedthat a state faced with an unauthorised aerial intrusion may deal with itin one or both of two ways: first, by illformillg the intruder that it isperforming an unauthorised act (and this may include compelling it toland); secondly, by taking diplomatic action.48
In 1973, Israeli jets shot down a Libyan airliner straying several scoremiles into Israeli-occupied Sinai. It was alleged that the airliner had been
warned to land but had refused to comply with the order. After an investigation, the Council of ICAO condemned Israel's action and declared that'such actions constitute a serious danger against the safety of international
civil aviation'. Israel's attitude was criticised as a 'flagrant violation of theprinciples enshrined in the Chicago onv vent ion'.^^On 1 September 1983, Soviet jets shot down a Korean Airlines airplane
which had strayed several hundred miles into sensitive Soviet airspace,causing the deaths of 269 persons." A week later, the USSR vetoed adraft Security Council resolution which reaffirmed the rules of international law prohibiting acts of violence against the safety of international
civil aviation." The Council of ICAO directed on 16 September that an
investigation be held and that the Air Navigation Commission should
review the Chicago Convention and related documents to prevent a recurrence of such a tragic incident and to seek to improve methods ofcommunication between civil and military aircraft and air traffic control
services.52
After the submission of the report,j3 the Council of ICAO adopted aresolution condemning the shooting down of the Korean airliner.54 In
48

Aerial Incident case, ICJ Reports, 1959, pp. 127, 130; 27 ILR, p. 557.

'' 12 ILM, 1973, p. 1180. Israel apologised for the incident and paid compensation to thevictims. See also DUSPIL, 1973, pp. 312-13. As to the Chicago Convention, see above,p. 465.
" See the Report of the Secretary-General of ICAO, 23 ILM, 1984, p. 864. See also 88 ILR,
p. 55 and Cumulative DUSPIL 1981-8, vol. 11, pp. 2199 ff.
22 ILM, 1983, p. 1148.
" See h1. N. Leich, 'Destruction of Korean Airliner: Action by International Organisations',
78 AJIL, 1984, pp. 244-5.
23 ILM, 1984, p. 864.
j4 Illid., p. 937. Note also that an ICAO investigation in June 1993 concluded that the evidence
obtained supported the first hypothesis listed in the 1983 Report, i.e. that the flight crew
had mistakenly flown on a constant magnetic heading because it had not been realisedthat the autopilot had been left in use. It was also concluded that the USSR CommandCentre had assumed that the aircraft was a US RC-135 aircraft: see 33 ILM, 1994, p. 310.

''"

A I R LAW AND SPACE LAW

475

addition, an amendment to the Chicago Convention was adopted.j5 This
amendment was to article 3 of the Convention, which had laid down as
one of its general principles that contracting states undertook to have
due regard for the safety of navigation of civil aircraft. In addition to thegeneral provision in article 3, Annex I1 to the Convention had provided
for detailed procedures to be followed in cases of interception, procedures
which were apparently not complied with in the case ofthe Korean Airlines
tragedy.j6 Annex I1 also provided that 'intercepting aircraft should refrainfrom the use ofweapons in all cases of interception of civil aircraft'. Despite
this provision and ICAO Council action in 1973 regarding Israel's attackon the Libyan airliner over Sinai, the needwas felt to strengthen the generalprinciple in article 3 itself in order to add greater force to the concern felt.
New article 3(a) bis provides that:( a ) The contracting states recognise that every state must refrain fromresorting to the use o f weapons against the civil aircraft in flight, and thatin case o f interception, the lives o f persons on board and the safety o faircraft must not be endangered. This provision shall not be interpreted as
modifying in any way the rights and obligations o f states set forth in theCharter o f the United Nations.

The right of a state to require a civil aircraft to land at a designated airport,
where the aircraft is flying above its territory without authority or where
there are reasonable grounds to conclude that it is being used for any
purpose inconsistent with the Convention, was reaffirmed in subsection(b).
There are several points that may be made with regard to the amendment. First, it is to be noted that reference is made to 'weapons', not force,in the prohibition provision. Presumably this means that force may be
used against civil aircraft in flight in pursuance of an interception, provided that weapons are not actually fired. Second, the wording appears tosuggest that national as well as foreign civil aircraft fall within the scope of
the provision, but the restriction to aircraft 'in flight' leads one to assume
that the need to distinguish this kind of situation from the recapture ofhijacked aircraft on the ground was felt. Finally, the provision in subsection (b) stipulating when states may require aircraft to land appears
23 ILM, 1984, p. 705. This amendment, the Montreal Protocol, 1984, required ratificationby two-thirds of the ICAO membership before comiilg into force.
j6 Ibid., p. 864 and de la Rochere, 'L'Affaire:
j5

476

I N T E R N A T I O N A L LAW

to be more restrictive than article 4 of the 1963 Tokyo Convention on
Offences and Certain Other Acts Committed on Board Aircraft, which
permits interference in five defined situations, i.e. where:(a) the offence has effect on the territory of such state;(b) the offence has been committed by or against a national or permanent
resident of such state;(c) the offence is against the security of such state;(d) the offence consists of a breach of any rules or regulations relating to
the flight or manoeuvre of aircraft in force in such state;(e) the exercise of jurisdiction is necessary to ensure the observance of any
obligation of such state under a multilateral international agreement.
Article 82 of the Chicago Convention provides for the abrogation of allinconsistent obligations and understandings among ICAO members andit is a moot point whether this means that article 3 bis (when in force)
would override the Tokyo provisions,5' although it should be noted that
the Tokyo Convention deals only with offences committed on board theaircraft.
Under article 25 of the Chicago Convention, an aircraft in distress is
to be given necessary assistance, but this relies upon the fact of distressbeing evident or made known to the intercepting forces. In such a situation
resort to the use of force would be illegal.
It is also clear that the doctrine of self-defence may be of relevancein certain situations, for example, if the intruding aircraft was clearly
involved in an act of aggression or terrorism. The intercepting forces
may have to take action, within the parameters of proportionality,j8 toforestall that threat and force may be necessary. While a civilian airliner
will rarely pose this level of threat, justifying a shooting down, the attackon the World Trade Center on 11 September 2001 demonstrates that it
is a possibility. It appears that the USSR believed that the Korean airliner
was an American spy plane.j9 Even if that were true or if the belief were
genuine, it would seem that the actions taken to require it to land were
inadequate and the course actively embarked upon beyond the bounds ofproportionality.
See e.g. B. Cheng, 'The Destruction of KAL Flight KE007, and Article 3 bis of the Chicago
Convention' in Air Worthy (eds. Van Gravesande and \'an der Veen \70i~k),1985, p. 49.
j8 As to self-defence and proportionality, see below, chapter 20.
"'ee
22 ILM, 1983, pp. 1126-8 and above, footnote 54.
j7

A I R LAW AND SPACE LAW

477

The general issue was again raised by the shooting down by the US
warship Vincennesin July 1988 of an Iranian civil airliner over the Persian
Gulf, although it should be noted in this case that there was, of course,
no unauthorised aerial intrusion into domestic airspace.60Both the US
Defence Department and the ICAO reports into the incident in essence
placed the blame for the incident upon the ~ a r s h i p . Mistakes~'
madeas to the identification of the aircraft and with regard to the warnings
issued to it combined with the tense atmosphere in that region during
the Iran-Iraq war to create the disaster. Suggestions have been made that
the US should not be regarded as legally responsible, since proof of fault
beyond reasonable doubt has yet to be established and the fact that theincident took place in a war zone is of the utmost relevance in assessing
this.62However, it is undisputed that the airliner was shot down by a US
warship and this is certainly contrary to article 3 bis, which could well now
be regarded as a principle of customary law. While self-defence may wellhave been an initial consideration, its application is circumscribed by theprinciples of necessity and proportionality. The incident came before theInternational Court of Justice upon Iran's application on 17 May 1989,
but was removed from the Court's list upon notification of a full and final
settlement between the US and ran.^"The shooting down of two civilian planes by Cuban military aircraft
over international waters in February 1996 led to strong condemnation.
ICAO adopted a resolution on 28 June 1996, following the preparationof a report,64 reaffirming the following principles: first, that states mustrefrain from the use of weapons against civil aircraft in flight and that,when intercepting civil aircraft, the lives of persons on board and thesafety of the aircraft must not be endangered; secondly, that states musttake appropriate measures to prohibit the deliberate use of any civil aircraft registered in that state or operated by an operator who has his
principal place of business or permanent residence in that state for any
See e.g. Keesing's Record of World Events, pp. 36064, 36169, 36631 and 37423, and 'Agora:
The Downing of Iran Air Flight 655: 83 AJIL, 1989, p. 318. See also 28 ILM, 1989,
p. 896.
61 Keesirlg's Record of World Events, and 83 AJIL, 1989, p. 332. See also Security Council
resolution 616 (1988).
62 See e.g. H. Maier, 'Ex Gratia Payments and the Iranian Airline Tragedy', 83 AJIL, 1989,
p. 325.
63 See Court's Order of 22 February 1996. See also the Pakistan application to the Court
concerning the downing of a Pakistan plane by India in 1999. The Court rejected this o njurisdictional grounds: see ICJ Reports, 2000.
64 Sl19961509, annex.

478

I N T E R N A T I O N A L LAW

purpose inconsistent with the aims of the Convention on International
Civil Aviation; and thirdly, that the use of weapons against civil aircraftin flight was incompatible with elementary considerations of humanity, the rules of customary international law as codified in article 3 bisof the Convention on International Civil Aviation, and the Standards
and Recommended Practices set out in the Annexes to the C~nvention.~'
These principles were reaffirmed in Security Council resolution 1067
(19961.~~
As part of its functions, ICAO adopts Standards and Recommended
Practices. Those relating to aviation security are contained in Annex 17 to
the Chicago Convention, which has been amended a number of times. In
December 2001, for instance, after the 11 September attack on the World
Trade Center using hijacked civil airliners, amendment 10 was adopted
concerning international terrorism. That same year, the ICAO Assembly
adopted a Declaration on the Misuse of Civil Aircraft as Weapons of Destruction, which condemned such activities and other terrorist uses ofcivilian aircraft, declaring them to be a violation of the Chicago Convention and of international law generally.67
Following the Iraqi invasion of Kuwait on 2 August 1990, the Security
Council adopted a series of resolutions. Resolution 670 (1990) declaredthat permission for any aircraft to take off should be denied by all statesfrom their territory where the aircraft was carrying any cargo to or from
Iraq or Kuwait other than food in humanitarian circumstances or supplies strictly for medical purposes or solely for the UN Iran-Iraq Military
Observer Group. All states were called upon to deny permission to overfly
their territory to any aircraft destined to land in Iraq or Kuwait, unlessit had been inspected to ensure it had no cargo on board which was inviolation of Security Council resolution 661 (1990) establishing sanctions
against Iraq, or unless the particular flight had been approved by the Sanctions Committee or had been certified by the UN as being solely for the
purposes of the Military Observer Group. The Council would consider
measures directed at states which evaded these provisions. However, thiswould not permit the shooting down of civilian airliners suspected ofbreaking the UN sanctions against Iraq.

P I 0 6/96 andhttp://w~.icao.int/icao/en/nr/pio9606.htm.
See also the resolution adopted
o n 6 March 1996.
See also Alejandrev. Cuba996 F.Supp. 1239 (1997); 121 ILR, p. 603.
67 A33-1 and 41 ILM, 2002, p. 501. See also http://www.icao.int/icao/eniassemblia33/
resolutions-a33.pdf. See further below, chapter 20, p. 1048.
6'

A I R LAW AND SPACE LAW

479

The situation is different with regard to military aircraft intruding
without authorisation into foreign airspace. The self-defence argument
may be stronger and the burden of proof thus lower, but it is questionable
whether the need for a prior warning has been dispensed with.'j8
The law of outer space69

The fundamental principle of air law relates to the complete sovereigntyof the subjacent state. This is qualified by the various multilateral andbilateral conventions which permit airliners to cross and land in the territories of the contracting states under recognised conditions and in thelight of the accepted regulations. But there is also another qualificationand one that substantially modifies the usque ad coelum concept, whereby
sovereignty extended over the airspace to an unlimited height. This centres
upon the creation and development of the law of outer space.
Ever since the USSR launched the first earth satellite in 1957, space
exploration has developed at an ever-increasing rate.70Satellites now control communications and observation networks, while landings have been
made on the moon and information-seeking space probes dispatched to
68 See e.g. 0 . Lissitzyn, Editorial Comment, 56 AJIL, 1962, pp. 135, 138.
h9 See e.g. C. Q. Christol, The Modern Internatioilal Laiv of Outer Space, New York, 1982,

and Christol, Space Law, Deventer, 1991; J. E. S. Fawcett, Outer Space, Oxford, 1984;
D. Goedhuis, 'The Present State of Space Law' in The Present State of International Law(ed. M. Bos), London, 1973, p. 201; S. Gorove, 'International Space Law in Perspective: 181
HR, 1983, p. 349, and Gorove, Dei~elopmentsin Space Law, Dordrecht, 1991; M . Marcoff,
Truife de Droit International Public de I'Espace, Fribourg, 1973, and Marcoff, 'Sources
du Droit International de 1'Espace: 168 HR, p. 9; N. Matte, Aerospace Law, Montreal,
1969; Le Droit de I'Espace (ed. J. Dutheil de la Rochere), Paris, 1988; P. IM. Martin, Droit
International des Activitb Spatiales, Masson, 1992; B. Cheng, 'The 1967 Space Treaty',
Jourizal de Droit Internatioilal, 1968, p. 532, Cheng, 'The Moon Treaty', 33 Current Legal
Probleins, 1980, p. 213, Cheng, 'The Legal Status of Outer Space: Journal of Space Law,
1983, p. 89, Cheng, 'The UN and the Development of International Law Relating toOuter Space', 16 Thesaurus Acroasinrr~,Thessaloniki, 1990, p. 49, and Cheng, Studies iil
Internatioizal Space Law, Oxford, 1997. See also Oppenheifn'sInternational Law, chapter 7 ;Nguyen Quoc Dinh et al., Droit International Public, p. 1254; R. G. Steinhardt, 'Outer
Space' in United Natioizs L e p l Order (eds. 0 . Schachter and C. C. Joyner), Cambridge,
1995, vol. 11, p. 753; Manual on Space Law (eds. N. Jasentulajana and R. Lee), New York, 4vols., 1979; SpaceLaw-BasicDocurnents (eds. K. H. Bockstiegel andM. Berko), Dordrecht,
1991; Outlook on Space Latv (eds. S. G. Lafferanderie and D. Crowther), The Hague, 1997;
G. H. Reynolds and R. P. Merges, Outer Space, 2nd edn, Boulder, CO, 1997.
' O Note the role played by the UN Committee on the Peaceful Uses of Outer Space establishedin 1958 and consisting currently of sixty-five states. The Coinmittee has a Legal SubCommittee and a Scientific and Technical Sub-committee: see, in particular, Christol,Modern International Law, pp. 13-20, and http://~\w.oosa.unvieni~a.orgiindex.htinl.

480

I N T E R N A T I O N A L LAW

survey planets like Venus and Saturn. The research material gathered
upon such diverse matters as earth resources, ionospheric activities, solar
radiation, cosmic rays and the general structure of space and planet formations has stimulated further efforts to understand the nature of space
and the c o s m ~ s . ~ 'This immense increase in available information has also led to thedevelopment of the law of outer space, formulating generally accepted
principles to regulate the interests of the various states involved as well
as taking into account the concern of the international community as awhole.

T h e definition and delimitation of outer space
It soon became apparent that the usque ad coelurn rule, providing for statesovereignty over territorial airspace to an unrestricted extent, was notviable where space exploration was concerned. To obtain the individual
consents of countries to the passage of satellites and other vehicles orbiting
more than 100 miles above their surface would prove cumbersome in theextreme and in practice states have acquiesced in such traversing. Thismeans that the sovereignty of states over their airspace is limited in heightat most to the point where the airspace meets space itself. Precisely where
this boundary lies is difficult to say and will depend upon technologicaland other factors, but figures between 50 and 100 miles have been put
forward.72
As conventional aircraft are developed to attain greater heights, so states
will wish to see their sovereignty extend to those heights and, as well as
genuine uncertainty, this fear of surrendering what may prove to be in
the future valuable sovereign rights has prevented any agreement on thedelimitation of this particular frontier.'"" See e.g. Fawcett, Outer Space, chapter 7.
'' The UK has noted, for example, that, 'for practical purposes the limit [between airspace''and outer space] is considered to be as high as any aircraft can fly', 70 BYIL, 1999,
p. 520.
See generally Christol, Modern International Law, chapter 10, and see also e.g. UKMIL, 64
BYIL, 1993, p. 689. Avariety of suggestions have been put forward regarding the method ofdelimitation, ranging from the properties of the atmosphere t o the lowest possible orbit ofsatellites. They appear to fall within either a spatial or a functional category: see ibid., and
UN Doc. A/AC.l05/C.2/7/Add.l, 21 January 1977. Some states have argued for a 110 k m
boundary: see e.g. USSR, 21(4) UN Chronicle, 1984, p. 37; others feel it is premature toestablish such a fixed delimitatioi~,e.g. USA and UK, ibid. See also 216 HL Deb., col. 975,
1958-9, and D. Goedhuis, 'The Problems of the Frontiers of Outer Space and Airspace:
174 HR, 1982, p. 367.

A I R LAW AND SPACE LAW

481

The regime of outer space
Beyond the point separating air from space, states have agreed to apply
the international law principles of res communis, so that no portion ofouter space may be appropriated to the sovereignty of individual states.
This was made clear in a number of General Assembly resolutions following the advent of the satellite era in the late 1950s. For instance, UN
General Assembly resolution 1962 (XVII), adopted in 1963 and entitledthe Declaration of Legal Principles Governing the Activities of States inthe Exploration and Use of Outer Space, lays down a series of applicablelegal principles which include the provisions that outer space and celestialbodies were free for exploration and use by all states on a basis of equality
and in accordance with international law, and that outer space and celestial bodies were not subject to national appropriation by any means.'l
In addition, the Declaration on International Co-operation in the Exploration and Use of Outer Space adopted in resolution 511126, 1996,
called for further international co-operation, with particular attention
being given to the benefit for and the interests of developing countries
and countries with incipient space programmes stemming from such international co-operation conducted with countries with more advanced
space capabilities." Such resolutions constituted in many cases and in thecircumstances expressions of state practice and opinio juris and were thuspart of customary law.76
The legal regime of outer space was clarified by the signature in 1967 of
the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial
Bodies. This reiterates that outer space, including the moon and other celestial bodies, is not subject to national appropriation by any means andemphasises that the exploration and use of outer space must be carriedout for the benefit of all countries. The Treaty does not establish as sucha precise boundary between airspace and outer space but it provides theframework for the international law of outer space.77
74 See also General Assembly resolutions 1721 (XVI) and 1884 (XVIII).

" See also 'The Space Millennium: The \'ienna

Declaration on Space and Human Development' adopted by the Third United Nations Conference on the Exploration andPeaceful Uses of Outer Space (UNISPACE III), Vienna, 1999: see h t t p : / / ~ w . o o s a .
unvienna.org/unisp-3i.
76 See above, chapter 3, and B. Cheng, 'United Nations Resolutions on Outer Space: "Instant"
International Customary Law?', 5 Indian Journal of International Law, 1965, p. 23.
77 See e.g. Christol, Modern International Law, chapter 2. See also Oppenheim's InternationalLaw, p. 828.

482

I N T E R N A T I O N A L LAW

Article 4 provides that states parties to the Treaty agree:
not to place in orbit around the earth any objects carrying nuclear weapons
or any other kinds of weapons of mass destruction, install such weaponso n celestial bodies, or station such weapons in outer space in any othermanner.

There are, however, disagreements as to the meaning ofthis provision.78
The article bans only nuclear weapons and weapons of mass destruction
from outer space, the celestial bodies and from orbit around the earth,but article 1 does emphasise that the exploration and use of outer space'shall be carried out for the benefit and in the interests of all countries' andit has been argued that this can be interpreted to mean that any militaryactivity in space contravenes the treaty.79
Under article 4, only the moon and other celestial bodies must be
used exclusively for peaceful purposes, although the use of military personnel for scientific and other peaceful purposes is not prohibited. There
are minimalist and maximalist interpretations as to how these provisions
are to be understood. The former, for example, would argue that only
aggressive military activity is banned, while the latter would prohibit all
military behavio~r.~'Article 6 provides for international responsibility for national activities in outer space, including the moon and othercelestial bodies, whether such activities are carried on by governmental
agencies or by non-governmental entities, and for assuring that national
activities are carried out in conformity with the Treaty. The activities of
non-governmental entities in outer space, including the moon and othercelestial bodies, require authorisation and continuing supervision by theappropriate state party to the Treaty. When activities are carried on inouter space, including the moon and other celestial bodies, by an international organisation, responsibility for compliance with the Treaty is to'' The issue became particularly controversial in the light of the US Strategic Defence Initia''

tive ('Star Wars'), which aimed to develop a range of anti-satellite and anti-missile weapons
based in space. The UN Committee on the Peaceful Uses of Outer Space considered theissue, although without the participation of the US, which objected to the matter being
considered: see e.g. 21 (6) LTNChronicle, 1984,p. 18.
See e.g. Marcoff, Trait&,pp. 361 ff.
See e.g. Christol, Modern International Law, pp. 25-6. See also Goedhuis, 'Legal Issues
Involved in the Poteiltial Military Uses of Space Stations' in Liber Amicorum for Rt Hon
Richard Wilberforce (eds. M . Bos and I. Brownlie), Oxford, 1987, p. 23, and Gorove,
Developments, part 1'1.

A I R LAW AND SPACE LAW

483

be borne both by the international organisation and by the states parties
to the Treaty participating in such ~ r g a n i s a t i o n . ~ ~Under article 8, states retain jurisdiction and control over personnel
and vehicles launched by them into space and under article 7 theyremain responsible for any damage caused to other parties to the Treaty
by their space objectss2
This aspect of space law was further developed by the Convention on
International Liability for Damage Caused by Space Objects signed in1972, article XI1 of which provides for the payment of compensation inaccordance with international law and the principles of justice and equity
for any damage caused by space objects. Article I1 provides for absoluteliability to pay such compensation for damage caused by a space object
on the surface of the earth or to aircraft in flight, whereas article I11
provides for fault liability for damage caused elsewhere or to persons
or property on board a space object.83This Convention was invoked by
Canada in 1979 following the damage allegedly caused by Soviet Cosmos
954.84AS a reinforcement to this evolving system of state responsibility, theConvention on the Registration of Objects Launched into Outer Space was
opened for signature in 1975, coming into force in 1976. This laid downa series of stipulations for the registration of information regarding space
objects, such as, for example, their purpose, location and parameters,
In 1993, the UN Generalwith the United Nations secretary-~eneral.~'See e.g. B. Cheng, 'Article VI of the 1967 Treaty Revisited', 1 Jo~otlrnalof Space Law, 1998,
p. 7.
82 See further Cheng, Studies in Space Law, chapters 17 and 18.
S3 See e.g. the Exchange of Notes between the UK and Chinese governments with regard to
liability for damages arising during the launch phase of the Asiasat Satellite in 1990 inaccordance with inter alia the 1967 and 1972 Conventions, UKlMIL, 64 BYIL, 1993, p. 689.
84 The claim was for $6,401,174.70. See 18 ILI\/I, 1979, pp. 899 ff. See also Christol, ,Modern
International Law, pp. 59 ff., and Christol, 'International Liability for Damage Caused by
Space Objects: 74 AJIL, 1980, p. 346. B. Cheng has drawn attention to difficulties concerning the notion of damage here as including environmental damage: see International
Law Association, Report qf the Sixty-Ninth Conference, London, 2000, 1). 581. Note alsothat under article 3 of the 1967 Treaty, all states parties to the Treaty agree to carry on
activities 'in accordance with international lam.: which clearly includes rules relating tostate responsibility. See also Gorove, Developments, part V, and B. Hurwitz, State Liability
for Outer Space Activities in Accordance with the 1972 Convention on International Liability
for Damage Caused by Space Objects, Dordrecht, 1992.
The International Law Association adopted in 1994 the 'Buenos hires International 111strument on the Protection of the Environment from Damage Caused by Space Debris'.
This provides that each state or international organisation party to the Instrument thatlaunches or procures the launchiilg of a space object is illternationally liable for damage

484

I N T E R N A T I O N A L LAW

Assembly adopted Principles Relevant to the Use of Nuclear Power Sourcesin Outer
Under these Principles, the launching state is, prior to thelaunch, to ensure that a thorough and comprehensive safety assessment isconducted and made publicly available. Where a space object appears tomalfunction with a risk of re-entry of radioactive materials to the earth,
the launching state is to inform states concerned and the UN SecretaryGeneral and respond promptly to requests for further information or
consultations sought by other states. Principle 8 provides that states shallbear international responsibility for national activities involving the use of
nuclear power sources in outer space, whether such activities are carriedout by governmental agencies or by non-governmental agencies. Principle
9 provides that each state which launches or procures the launching of aspace object and each state from whose territory or facility a space object
is launched shall be internationally liable for damage caused by such space
object or its component parts.
The Agreement on the Rescue of Astronauts, the Return of Astronauts
and the Return of Objects Launched into Outer Space was signed in 1968and sets out the legal framework for the provision of emergency assistanceto astronauts. It provides for immediate notification of the launchingauthority or, if that is not immediately possible, a public announcement
regarding space personnel in distress as well as the immediate provision ofassistance. It also covers search and rescue operations as well as a guarantee
of prompt return. The Convention also provides for recovery of space
objects.87
arising therefrom to another state, persons or objects, or international organisation party
to the Instrument as a consequence of space debris produced by any such object: see Reportof the 66th Cor~ferenceat Buer~osAires, London, 1994, p. 7.
" Resolution 47168.
The UK Outer Space Act 1986, for example, provides a framework for private sector spaceenterprises by creating alicensing system for outer space activities and by establishing a system for indemnification for damage suffered by third parties or elsewhere. The Act also establishes a statutory register ofthe launch of space objects. Note also that the US has signed
a number of agreements with other states providing for assistance abroad in the event of an
emergency landing of the space shuttle. These agreements also provide for US liability tocompensate for damage and loss caused as a result of an emergency landing, in accordancewith the 1972 Treaty: see Cumulative DUSPIL 1981-8, vol. 11, p. 2269. In 1988 an Agreement on Space Stations was signed between the US, the governments of the member statesof the European Space Agency, rapan and Canada. This provides inter alia for registrationof flight elements as space objects under the Registration Convention of 1975, each state retaining jurisdiction over the elements it so registers and personnel in or on the space station
who are its nationals. There is also an interestingprovisioil (article 22) permitting the US to
exercise criminal jurisdiction over misconduct committed by a non-US national in or on ailoi1-US element of the inaniled base or attached to the inaniled base, which endangers

A I R LAW AND SPACE LAW

485

In 1979, the Agreement Governing the Activities of States on the Moonand other Celestial Bodies was adopted.88This provides for the demilitarisation of the moon and other celestial bodies, although military personnel
maybe used for peaceful purposes, and reiterates the principle establishedin the 1967 Outer Space Treaty. Under article IV, the exploration and theuse of the moon shall be the province of all mankind and should be carried out for the benefit of all. Article XI emphasises that the moon andits natural resources are the common heritage of mankind and are notsubject to national appropriation by any means. That important articleemphasises that no private rights of ownership over the moon or any partof it or its natural resources in place may be created, although all states
parties have the right to exploration and use of the moon. The states parties also agreed under article XI(5) and (7) to establish an international
regime to govern the exploitation of the resources of the moon, when thisbecomes feasible.89The main purposes of the international regime to beestablished are to include:(a) the orderly and safe development ofthe natural resources ofthe moon;(b) the rational management of those resources;(c) the expansion of opportunities in the use of those resources; and(d) an equitable sharing by all states parties in the benefits derived fromthose resources, whereby the interests and needs of the developing
countries, as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the moon,shall be given special consideration.
Several points are worth noting. First, the proposed international
regime is only to be established when exploitation becomes feasible. Secondly, it appears that until the regime is set up, there is a moratorium
on exploitation, although not on 'exploration and use', as recognised byarticles XI(4) and VI(2). This would permit the collection of samples andtheir removal from the moon for scientific purposes. Thirdly, it is to be
the safety of the manned base or the crew members thereon. Before proceeding to trial
with such a prosecution, the US shall consult with the partner state whose nationality thealleged perpetrator holds, and shall either have received the agreement of that partner tothe prosecution or failed to have received an assurance that the partner state intends toprosecute.
88 This came into force in July 1984: see C. Q. Christol, 'The Moon Treaty Enters into Force:
79 AJIL, 1985, p. 163.
8' See e.g. Cheng, 'Moon Treaty', pp. 231-2, and Christol, Modern International Law, chapters
7 and 8.

486

I N T E R N A T I O N A L LAW

noted that private ownership rights of minerals or natural resources notin place are permissible under the Treaty.9o

Arguably the most useful application of space exploitation techniques
has been the creation of telecommunications networks. This has revolutionised communications and has an enormous educational as well asentertainment potential.92
The legal framework for the use of space in the field of telecommunications is provided by the various INTELSAT (international telecommunications satellites) agreements which enable the member states of
the International Telecommunications Union to help develop and establish the system, although much of the work is in fact carried out by
American corporations, particularly COMSAT. In 1971 the communist
countries established their own network of telecommunications satellites,
called INTER-SPUTNIK. The international regime for the exploitationg3of the orbitlspectrum resource has built upon the 1967 Treaty, the 1973
Telecommunications Convention and Protocol and various International
Telecommunication Union Radio Regulations. Regulation of the radio
spectrum is undertaken at the World Administrative Radio Conferences
and by the principal organs of the ITU.
However, there are a number of problems associated with these ventures, ranging from the allocation of radio wave frequencies to the dangers
inherent in direct broadcasting via satellites to willing and unwilling statesalike. Questions about the control of material broadcast by such satellites
and the protection of minority cultures from 'swamping' have yet to beanswered, but are being discussed in various UN organs, for instance
UNESCO and the Committee on the Peaceful Uses of Outer Space.94'' See belo~v,chapter 11, p. 560, regarding the 'common heritage' regime envisaged for the
deep seabed under the 1982 Convention on the Law of the Sea.
" See e.g. A. Matteesco-Matte, Les T4l&communications par Satellites, Paris, 1982; M. L.

Smith, International Replatiotz of Satellite Cornttzunications, Dordrecht, 1990, and J. M.
Smits, Legal Aspects of Irrlplernenting International Teleconlrrlurlicatio~~sLinks, Dordrecht,
1992.
92 See e.g. the use by India of US satellites to beam educational television programmes tomany thousands of isolated settlements that would otherwise not have been reached,
DUSPIL, 1976, pp. 427-8.
See Christol, Space Law, chapter 11.
9"eeChristol, Modern International Law, chapter 12, and N. Matte, 'Aerospace Law:
Telecommuilications Satellites', 166 HR, 1980, p. 119. See also the study requested by the"A I R LAW AND SPACE LAW

487

Two principles are relevant in this context: freedom of information,
which is a right enshrined in many international instrument^,^' and statesovereignty. A number of attempts have been made to reconcile the two.
In 1972, UNESCO adopted a Declaration of Guiding Principles on the
Use of Satellite Broadcasting, in which it was provided that all states had
the right to decide on the content of educational programmes broadcast
to their own peoples, while article IX declared that prior agreement was
required for direct satellite broadcasting to the population of countries
other than the country of origin of the transmission. Within the UN
support for the consent principle was clear, but there were calls for aproper regulatory regime, in a d d i t i ~ n . ~ 'In 1983, the General Assembly adopted resolution 37/92 entitled 'Principles Governing the Use by States ofArtificial Earth Satellites for International Direct Television Broadcasting'. This provides that a state intending
to establish or authorise the establishment of a direct television broadcasting satellite service must first notify the proposed receiving state orstates and then consult with them. A service may only be established after
this and on the basis of agreements and/or arrangements in conformity
with the relevant instruments of the International Telecommunications
Union. However, the value of these principles is significantly reduced in
the light of the fact that nearly all the Western states voted against the
res~lution.~~ITU regulations call for technical co-ordination between the sending
and receiving states as to frequency and orbital positioning before any
direct broadcasting by satellite can be carried out and thus do not affectregulation of the conduct of the broadcast activity as such, although thetwo elements are clearly ~onnected.'~
The question of remote sensing has also been under consideration formany years by several bodies, includingthe UN Committee on the PeacefulUses of Outer Space. Remote sensing refers to the detection and analysis
1982 Conference, AlAC.1071341, and the European Convention on Transfrontier Television, 1988 and EEC Directive 891552 on the Pursuit of Television Broadcasting Activities.
See also Gorove, Developments, part 11, chapter 5.
95 See e.g. article 19, International Covenant on Civil and Political Rights, 1966; article 10,
Universal Declaration of Human Rights, 1948, and article 10, European Convention on
Human Rights, 1950.
" See e.g. Space Activities and Emergirlg Irlternational Law, p. 438. See also A18771 (1972).
97 These included France, West Germany, the UK, USA and Tapan.
See Space Activities and Emerging International Law, pp. 453 ff. See also Chapman and
Warren, 'Direct Broadcasting Satellites: The ITU, UN and the Real World: 4 Annals ofAirand Space Law, 1979, p. 413.

"

488

I N T E R N A T I O N A L LAWof the earth's resources by sensors carried in aircraft and spacecraft andcovers, for example, meteorological sensing, ocean observation, military
surveillance and land observation. It clearly has tremendous potential, but
the question of the uses of the information received is highly controver~ i a l1n. ~1986,~ the General Assembly adopted fifteen principles relating
to remote sensing.'" These range from the statement that such activity is
to be carried out for the benefit and in the interests of all countries, taking
into particular account the needs of developing countries, to the provision that sensing states should promote international co-operation andenvironmental protection on earth. There is, however, no requirementof prior consent from states that are being sensed,lO' although consultations in order to enhance participation are called for there. One key
issue relates to control over the dissemination of information gatheredby satellite. Some have called for the creation of an equitable regime forthe sharing of informationlo2and there is concern over the question ofaccess to data about states by those, and other, states. The USSR andFrance, for example, jointly proposed the concept of the inalienable rightof states to dispose oftheir natural resources and of information concerning those resource^,'^^ while the US in particular pointed to the practicalproblems this would cause and the possible infringement of freedom of
information. The UN Committee on the Peaceful Uses of Outer Spacehas been considering the problem for many years and general agreement
has proved elusive.lo4The Principles on Remote Sensing provide that thesensed state shall have access to the primary and processed data produced
upon a non-discriminatory basis and on reasonable cost terms. States
conducting such remote sensing are to bear international responsibility
for their activities.
The increase in the use of satellites for all of the above purposes has
put pressure upon the geostationary orbit. This is the orbit 22,300 miles
directly above the equator, where satellites circle at the same speed as the
99 See e.g. Christol, Modern International Law, chapter 13, and 21(4) UNCkronicle, 1984, p.

32. See also the Study on Remote Sensing, AIAC.1051339 and Add.1, 1985, and Gorove,
Developments, part VII.
loo General Assembly resolution 41165.
lo' Note that the 1967 Outer Space Treaty provides for freedom of exploration and use,although arguments based inter alia o n permanent sovereignty over natural resourcesand exclusive sovereignty over airspace have been put forward: see e.g. AlAC.1051171,
Annex IV (1976) and AIAC.105lC.2lSR.220 (1984).
lo2 See e.g. Gotlieb, 'The Impact of Technology o n the Development of Contemporary International Law', 170 HR, p. 115.
lo' AIAC.105IC.2IL.99 (1974).
lU4 See e.g. AlAC.1051320, Annex IV (1983).

A I R LAW AND SPACE LAW

489

earth rotates. It is the only orbit capable of providing continuous contact with ground stations via a single satellite. The orbit is thus a finite
res~urce.'~'However, in 1976, Brazil, Colombia, the Congo, Ecuador,Indonesia, Kenya, Uganda and Zaire signed the Bogota Declaration under which they stated that 'the segments of geostationary synchronous
orbit are part of the territory over which equatorial states exercise theirsovereignty'. Oh
0 t h & states have vigorously protested against this and it therefore
cannot be taken as other than an assertion and a bargaining counter.lo7
Nevertheless, the increase in satellite launches and the limited natureof the geostationary orbit facility calls for urgent action to produce anacceptable series of principles governing its use.lo8'

Suggestions for further reading
B. Cheng, Studies i n International Space Law, Oxford, 1997
C. Q. Christol, Space Law, Deventer, 1991
I . H. Diederiks-Verschoor, A n Introduction to Air Law, 6 t h edn, T h e Hague, 1997
e.g. article 33 of the 1973 International Teleco~nmunicationsConvention, andChristol, Mode1-n International Law, pp. 451 ff. See also the Study on the Feasibilityof Closer Spacing of Satellites in the Geostationary Orbit, AiAC.1051340 (1985) andhlAC1051404 (1988). See also Gorove, Developments, part 11, chapters 3 and 4.
l n ~ o r o v eDevelop~lzents,,
pp. 891-95. See also ITU Doc. IVARC-155 (1977) 81-E.
lo' See e.g. DUSPIL, 1979, pp. 1187-8.
ln8 Note also the Conliention on International Interests in Mobile Equipment, 2001 and thedraft protocol on matters specific to space property.
lo5 SeeThe law of the sea

The seas have historically performed two important functions: first, as a
medium of communication, and secondly as a vast reservoir of resources,
both living and non-living. Both of these functions have stimulated thedevelopment of legal rules.'The seas were at one time thought capable of subjection to nationalsovereignties. The Portuguese in particular in the seventeenth century
proclaimed huge tracts of the high seas as part of their territorial domain,
but these claims stimulated a response by Grotius who elaborated thedoctrine of the open seas, whereby the oceans as res commtinis were to
be accessible to all nations but incapable of appr~priation.~
This view
prevailed, partly because it accorded with the interests of the North
European states, which demanded freedom of the seas for the purposesof exploration and expanding commercial intercourse with the East.
The freedom of the high seas rapidly became a basic principle of international law, but not all the seas were so characterised. It was permissible
for a coastal state to appropriate a maritime belt around its coastline as
See e.g. E. D. Brown, The International Law of the Sea, Aldershot, 2 vols., 1994; M. RemondGouilloud, Droit Maritime, Paris, 1993; Oppenheim's International Law (eds. R. Y. Jennings
and A. D. T17atts),9th edn, London, 1992, chapter 6; Nguyen Quoc Dinh, P. Daillier and
A. Pellet, Droit International Public, 7th edn, Paris, 2002, p. 1139; P. Allott, 'Mare Nostrum:
A New International Law of the Sea', 86 AJIL, 1992, p. 764; T. Treves, 'Codification du Droit
International et Pratique des Etats dans le Droit de la Mer: 223 HR, 1990 IV, p. 9; R. R.
Churchill and A. V. Lowe, The Law of the Sea, 3rd edn, Manchester, 1999; R. J. Dupuy and
D. \'ignes, Trait4 du Nouveat~Droit de la Mer, Brussels, 1985; Le Nouveau Droit Internationalde la Mer (eds. D. Bardonnet and M. Virally), Paris, 1983; D. P. O'Connell, The Iriternational
Law of the Sea, Oxford, 2 vols., 1982-4; C. 1. Colombos, The Irlternational Latv of the Sea,
6th edn, London, 1967; M. S. McDougal and TIT.T. Burke, The Public Order of the Oceans,
New Haven, 1962; New Directions in the Law of the Sea, Dobbs Ferry, vols. I-VI (eds.
R. Churchill, M. Nordquist and S. H. Lay), 1973-7; ibid., VII-XI (eds. M. Nordquist and
K. Simmons), 1980-1, and Oda, The Law o f t h e Sea in Our Time, Leiden, 2 vols., 1977. See
also the series Limits in the Seas, published by the Geographer of the US State Department.
Mare Liberum, 1609. See also O'Connell, International Law of the Sea, vol. I , pp. 9 ff. The
closed seas approach was put by e.g. 1. Selden, Mare Cla~isum,1635.

T H E LAW O F T H E S E A

49lterritorial waters, or territorial sea, and treat it as an indivisible part of its
domain. Much of the history ofthe law of the sea has centred on the extent
of the territorial sea or the precise location of the dividing line between
it and the high seas and other recognised zones. The original stipulation
linked the width of the territorial sea to the ability of the coastal state todominate it by military means from the confines of its own shore. But
the present century has witnessed continual pressure by states to enlarge
the maritime belt and thus subject more of the oceans to their exclusive
jurisdiction.
Beyond the territorial sea, other jurisdictional zones have been in process of development. Coastal states may now exercise particular jurisdictional functions in the contiguous zone, and the trend of international law
today is moving rapidly in favour of even larger zones in which the coastal
state may enjoy certain rights to the exclusion of other nations, such as
fishery zones, continental shelves and, more recently, exclusive economic
zones. However, in each case whether a state is entitled to a territorial sea,continental shelf or exclusive economic zone is a question to be decided
by the law of the sea."This gradual shift in the law of the sea towards the enlargement of theterritorial sea (the accepted limit is now a width of 12 miles in contrast
to 3 miles some thirty years ago), coupled with the continual assertionof jurisdictional rights over portions of what were regarded as high seas,reflects a basic change in emphasis in the attitude of states to the sea.
The predominance of the concept of the freedom of the high seas has
been modified by the realisation of resources present in the seas and seabedbeyond the territorial seas. Parallel with the developing tendency to assert
ever greater claims over the high seas, however, has been the move towards
proclaiming a 'common heritage of mankind' regime over the seabed of
the high seas. The law relating to the seas, therefore, has been in a stateof flux for several decades as the conflicting principles have manifested
themselves.
A series of conferences have been held, which led to the four 1958
Conventions on the Law of the Sea and then to the 1982 Convention on
the Law of the Sea.4 The 1958 Convention on the High Seas was stated' El SalvadorlHonduras (Nicaragua Irltervcnitig), ICJ Reports, 1990, pp. 92, 126; 97 ILR,
p. 214.
"he1958 Convention o n the Territorial Sea and the Contiguous Zone came into force in
1964; the 1958 Convention o n the High Seas came into force in 1962; the 1958 Convention
o n Fishing and Conservation of Living Resources came into force in 1966 and the 1958
Convention o n the Continental Shelf came into force in 1964.

4g2

I N T E R N A T I O N A L LAW

in its preamble to be 'generally declaratory of established principles ofinternational law', while the other three 1958 instruments can be generally accepted as containing both reiterations of existing rules and newrules.
The pressures leading to the Law of the Sea Conference, which lasted
between 1974 and 1982 and involved a very wide range of states and international organisations, included a variety of economic, political andstrategic factors. Many Third World states wished to develop the exclusive economic zone idea, by which coastal states would have extensive
rights over a 200-mile zone'beyond the territorial sea, and were keen to
establish international control over the deep seabed, so as to prevent thetechnologically advanced states from being able to extract minerals fromthis vital and vast source freely and without political constraint. Westernstates were desirous of protecting their navigation routes by opposing
any weakening of the freedom of passage through international straits
particularly, and wished to protect their eco~lomicinterests through free
exploitation of the resources of the high seas and the deep seabed. Other
states and groups of states sought protection of their particular interests.'
Examples here would include the landlocked and geographically disadvantaged states, archipelagic states and coastal states. The effect of thiskaleidoscopic range of interests was very marked and led to the 'package
deal' concept of the final draft. According to this approach, for example,
the Third World accepted passage through straits and enhanced continental shelf rights beyond the 200-mile limit from the coasts in return for
the internationalisation of deep sea mining6
The 1982 Convention contains 320 articles and 9 Annexes. It was
adopted by 130 votes to 4, with 17 abstentions. The Convention enteredinto force on 16 November 1994, twelve months after the required 60
ratifications. In order primarily to meet Western concerns with regard to
the International Seabed Area (Part XI of the Convention), an Agreement
relating to the Implementation of Part XI of the 1982 Convention was
adopted on 29 July 1994.'
Many of the provisions in the 1982 Convention repeat principles enshrined in the earlier instruments and others have since become customary rules, but many new rules were proposed. Accordingly, a complicatedseries of relationships between the various states exists in this field, basedj'

See Churchill and Lowe, Law of the Sea, pp. 15 ff.
See e.g. H. Caminos and M. R. Molitor, 'Progressive Development of International Law
and the Package Deal', 79 AJIL, 1985, p. 871.
See further below, p. 561.

T H E LAW O F T H E S E A

493

on customary rules and treaty rules.8 All states are prima facie bound by
the accepted customary rules, while only the parties to the five treaties
involved will be bound by the new rules contained therein, and since one
must envisage some states not adhering to the 1982 Conventions, the 1958
rules will continue to be of i m p ~ r t a n c eDuring.~
the twelve-year period
between the signing of the Convention and its coming into force, the influence of its provisions was clear in the process of law creation by statepractice."

The territorial sea

Internal waters 1'
Internal waters are deemed to be such parts of the seas as are not either
the high seas or relevant zones or the territorial sea, and are accordinglyclassed as appertaining to the land territory of the coastal state. Internal
waters, whether harbours, lakes or rivers, are such waters as are to befound on the landward side of the baselines from which the width of theterritorial and other zones is measured,'* and are assimilated with theterritory of the state. They differ from the territorial sea primarily in that
there does not exist any right of innocent passage from which the shippingof other states may benefit. There is an exception to this rule where thestraight baselines enclose as internal waters what had been territorial
waters.13
In general, a coastal state may exercise its jurisdiction over foreign
ships within its internal waters to enforce its laws, although the judicial
See the North Sea Coritinental Shelfcases, ICJ Reports, 1969, pp. 3, 39; 41 ILR, pp. 29, 68;
the Fisheries Jurisdiction (L'K v. Iceland) case, ICJ Reports, 1974, p. 1; 55 ILR, p. 238 and
the Anglo-French Contiriental Shelfcase, Cmnd 7438, 1978; 54 ILR, p. 6. See also above,
chapter 3, p. 90.
Note that by article 31 l(1) of the 1982 Convention, the provisions of this Convention will
prevail as between the states parties over the 1958 Conventions.
l o See e.g. J. R. Stevenson and B. H. Oxman, 'The Future of the UN Convention on the Lawof the Sea', 88 AIIL, 1994, p. 488.
l 1 See e.g. Brown, Iriterrlational Law of the Sea, vol. I, chapter 5; O'Connell, International Lawof the Sea, vol. I, chapter 9; V. D. Degan, 'Internal T17aters: Netherlands YIL, 1986, p. 1 andChurchill and Lowe, Law of the Sea, chapter 3.
l 2 Article 5(1) of the 1958 Convention on the Territorial Sea and article 8(1) of the 1982
Convention. Note the exception in the latter provision with regard to archipelagic states,
below, p. 502. See also Regina v. Farnquist (1981) 54 CCC (2d) 417; 94 ILR, p. 238.
l 3 Article 5(2) of the 1958 Convention on the Territorial Sea and article 8(2) of the 1982
Convention. See below, p. 498.

'

494

I N T E R N A T I O N A L LAW

authorities ofthe flag state (i.e.the state whose flag the particular ship flies)
may also act where crimes have occurred on board ship. This concurrent
jurisdiction may be seen in two cases.
' ~ 1868, the Court of Criminal Appeal in the UK
In R v. ~ n d e r s o n , indeclared that an American national who had committed manslaughter onboard a British vessel in French internal waters was subject to the jurisdiction of the British courts, even though he was also within the sovereignty
of French justice (and American justice by reason of his nationality), andthus could be correctly convicted under English law. The US Supreme
Court held in Wildenhus' case1' that the American courts had jurisdiction to try a crew member of a Belgian vessel for the murder of anotherBelgian national when the ship was docked in the port of Jersey City in
New york.16
A merchant ship in a foreign port or in foreign internal waters is automatically subject to the local jurisdiction (unless there is an express
agreement to the contrary), although where purely disciplinarian issues
related to the ship's crew are involved, which do not concern the maintenance of peace within the territory of the coastal state, then such matterswould by courtesy be left to the authorities of the flag ship to regulate."
Although some writers have pointed to theoretical differences between thecommon law and French approaches, in practice the same fundamental
proposition applies.1s
However, a completely different situation operates where the foreign
vessel involved is a warship. In such cases, the authorisation of the captainor of the flag state is necessary before the coastal state may exercise its
Cox's Criminal Cases 198.
" 120 US 1 (1887). See also ArrnumentDieppe SA v. US 399 F.2d 794 (1968).

See the Madrid incident, ~vhereUS officials asserted the right to interview a potential
defector from a Soviet ship in New Orleans, 80 AJIL, 1986, p. 622.
See e.g. NNB v. Ocoan Trade Contpany 87 ILR, p. 96, where the Court of Appeal of The
Hague held that a coastal state had jurisdiction over a foreign vessel where the vessel was
within the territory of the coastal state and a dispute arose affecting not only the internal
order of the ship but also the legal order of the coastal state concerned. The dispute concerned a strike on board ship taken on the advice of the International Transport L\'orkers'
Federation.
l8 See e.g. Churchill and Lowe, Lnw of the Seu, pp. 65 ff. See also J. L. Lenoir, 'Criminal
Jurisdiction over Foreign Merchant Ships', 10 Tzllnne Law Review, 1935, p. 13. See, withregard to the right of access to ports and other internal waters, A. V. Lowe, 'The Right ofEntry into Maritime Ports in International Law', 14 Salz Diego Law Review, 1977, p. 597,
and O'Connell, International Law ofthe Sea, vol. 11, chapter 22. See also the Dangerous
Vessels Act 1985.

T H E LAW O F T H E S E A

495

jurisdiction over the ship and its crew. This is due to the status of thewarship as a direct arm of the sovereign of the flag state.19

The width of the territorial sea is defined from the low-water mark aroundthe coasts of the state. This is the traditional principle under customaryinternational law and was reiterated in article 3 of the Geneva Convention on the Territorial Sea and the Contiguous Zone in 1958 and article
5 of the 1982 Convention, and the low-water line along the coast is defined 'as marked on large-scale charts officially recognised by the coastal~tate'.~'In the majority of cases, it will not be very difficult to locate the lowwater line which is to act as the baseline for measuring the width of theterritorial sea.22By virtue of the 1958 Convention on the Territorial Sea
and the 1982 Law of the Sea Convention, the low-water line of a low-tide
elevation23may now be used as a baseline for measuring the breadth ofthe
territorial sea if it is situated wholly or partly at a distance not exceeding
the breadth of the territorial sea from the mainland or an island. If it isbeyond this distance, it will have no territorial sea of its own. When a lowtide elevation is situated in the overlapping area of the territorial sea of
See The Schooner Exchange v. ~McFaddon7 Cranch 116 (1812). See also 930 HC Deb., col.
450, I r i t t e n Answers, 29 April 1977.
See e.g. W M. Reisman and G. S. T47esterman, Straight Buselinex in International Maritime Boundary Delimitation, New York, 1992; 1. A. Roach and R. W. Smith, L'nited States
Responses to Excessive Maritime Claims, 2nd edn, The Hague, 1996, and L. Sohn, 'Baseline Considerations' in International Maritime Boundaries (eds. J. I. Charney and L. M.
Alexander), Dordrecht, 1993, vol. I, p. 153.
See Qatar v. Bahrain, ICJ Reports, 2001, para. 184 andEritrea/Yemen (Phase Tivo: Maritime
Delimitation), 119 ILR, py. 417,458. See also Churchill and Lowe, Lntv ofthe Sea, chapter
2; O'Connell, lnterrlational Law of the Sea. vol. I, chapter 5;Oppenllcim's International Law,
p. 607, and M. Mendelson, 'The Curious Case of Qatar v. Bahrain in the International
Court of Justice: 72 RYIL, 2001, p. 183.
" See the DubailSharjnh Border Award 91 ILR, pp. 543, 660-3, where the Arbitral Tribunal
tookinto account the outermost permanent harbour works of the two states as part of thecoast for the purpose of drawing the baselines.
23 See article 11(1), Convention on the Territorial Sea, 1958 and article 13(1),Law of the
Sea Convention, 1982. A low-tide elevation is a naturally formed area of land which issurrounded by and above water at lowtide, but submerged at high tide. See e.g. G. Marston,'Low-Tide Elevatioils and Straight Baselines', 46 BYIL, 1972-3, p. 405, and D. Bowett,'Islands, Rocks, Reefs and Low-Tide Elevations in Maritime Boundary Delimitations' inChariley and Alexander, Iilternational Maritiine Bollndaries, vol. I, p. 131.
lY

"

496

I N T E R N A T I O N A L LAW

two states, both are in principle entitled to use this as part of the relevant
low-water line in measuring their respective territorial sea." However, theInternational Court has taken the view that low-tide elevations may not
be regarded as part of the territory of the state concerned on an analogy
with islands and further that low-tide elevations that are situated withintwelve miles of another such elevation but beyond the territorial sea ofthe state may not themselves be used for the determination of the breadthof the territorial sea.25
Sometimes, however, the geography of the state's coasts will be suchas to cause certain problems: for instance, where the coastline is deeply
indented or there are numerous islands running parallel to the coasts,
or where there exist bays cutting into the coastlines. Special rules have
evolved to deal with this issue, which is of importance to coastal states,
particularly where foreign vessels regularly fish close to the limits of theterritorial sea. A more rational method of drawing baselines might havethe effect of enclosing larger areas of the sea within the state's internal
waters, and thus extend the boundaries of the territorial sea further than
the traditional method might envisage.
This point was raised in the Anglo-Norwegian Fisheries case,26before
the International Court of Justice. The case concerned a Norwegian decreedelimiting its territorial sea along some 1,000 miles of its coastline. However, instead of measuring the territorial sea from the low-water line, theNorwegians constructed a series of straight baselines linking the outermost parts of the land running along the skjaergaard (or fringe of islands
and rocks) which parallels the Norwegian coastline. This had the effect of
enclosing within its territorial limits parts of what would normally havebeen the high seas if the traditional method had been utilised. As a result, certain disputes involving British fishing boats arose, and the United
Kingdom challenged the legality of the Norwegian method of baselines
under international law. The Court held that it was the outer line of theskjaergaard that was relevant in establishing the baselines, and not the
low-water line of the mainland. This was dictated by geographic realities.
The Court noted that the normal method of drawing baselines that areparallel to the coast (the tract parallde) was not apilicable in this casebecause it would necessitate complex geometrical constructions in viewl4 Qatar v. Bahraiil, ICJ Reports, 2001, para. 202.
j'

'6

The so-called 'leap-frogging method', ibid., para. 207. But see also Eritrea/Yemen, 114 ILR,
pp. 1, 138.
ICJ Reports, 1951, p. 116; 18 ILR, p. 86.

T H E LAW O F T H E S E A

497

of the extreme indentations of the coastline and the existence of the seriesof islands fringing the coasts.27
Since the usual methods did not apply, and taking into account the
principle that the territorial sea must follow the general direction of thecoasts, the concept of straight baselines drawn from the outer rocks could
be c o n ~ i d e r e dThe
. ~ ~Court also made the point that the Norwegian system
had been applied consistently over many years and had met no objections
from other states, and that the UK had not protested until many years
after it had first been i n t r ~ d u c e dIn. ~other~words, the method of straightbaselines operated by Norway:
had been consolidated by a constant and sufficiently long practice, in theface ofwhich the attitude of governments bears witness to the fact that they
did not consider it to be contrary to international law."Thus, although noting that Norwegian rights had been establishedthrough actual practice coupled with acquiescence, the Court regarded
the straight baseline system itself as a valid principle of international law inview of the special geographic conditions of the area. The Court provided
criteria for determining the acceptability of any such delimitations. The
drawing of the baselines had not to depart from the general direction of
the coast, in view of the close dependence of the territorial sea upon theland domain; the baselines had to be drawn so that the sea area lying
within them had to be sufficiently closely linked to the land domain to be
subject to the regime of internal waters, and it was permissible to consider
in the process 'certain economic interests peculiar to a region, the reality
and importance of which are evidenced by long usage'.31
These principles emerging from the Fisheries case were accepted bystates as part of international law within a comparatively short period.
Article 4 of the Geneva Convention on the Territorial Sea, 1958 declared that the straight baseline system could be used in cases of indented
coastlines or where there existed a skjaergaard, provided that the general direction of the coast was followed and that there were sufficiently" ICJ Reports, 1951, p. 128; 18 ILR, p. 91. Note also the Court's mention of the courbe

tailgente method of drawing arcs of circles from points along the lo~v-waterline, ibid.
ICJ Reports, 1951, p. 129; 18 ILR, p. 92. Other states had already used such a system: seee.g. H. Waldock, 'The Anglo-Norwegian Fisheries Case: 28 BYIL, 1951, pp. 114, 148. See
also I. Brownlie, Pririciples of Ptlblic blterilational Law, 5th edn, Oxford, 1998, p. 184.
29 ICJ Reports, 1951, p. 138; 18 ILR, p. 101. Cf. Judge McNair, ICJ Reports, 1951, pp. 171-80;
18 ILR, p. 123.
" ICJ Reports, 1951, p. 139; 18 ILR, p. 102.
31 ICJ Reports, 1951, p. 133; 18 ILR, p. 95.

498

I N T E R N A T I O N A L LAW

close links between the sea areas within the lines and the land domain
to be subject to the regime of internal waters. In addition, particularregional economic interests of long standing may be considered where
necessary.32
A number of states now use the system, including, it should be
mentioned, the United Kingdom as regards areas on the west coast of
S ~ o t l a n d . However,'~there is evidence that, perhaps in view of the broad
criteria laid down, many states have used this system in circumstancesthat are not strictly justifiable in law.34However, the Court made it clear
in Qatar v. Bahrain thatthe method of straight baselines, which is an exception to the normal rules
for the determination ofbaselines, may only be applied if a number of conditions are met. This method must be applied restrictively. Such conditions
are primarily that either the coastline is deeply indented and cut into, orthat there is a fringe of islands along the coast in its immediate ~ i c i n i t y . ~ 'Further, the Court emphasised that the fact that a state considers itself amultiple-island state or a de facto archipelago does not allow it to deviate from the normal rules for the determination of baselines unless therelevant conditions are met.36
Where the result ofthe straight baseline method is to enclose as internal
waters areas previously regarded as part of the territorial sea or high seas,a right of innocent passage shall be deemed to exist in such waters by
virtue of article 5(2) of the 1958 o on vent ion.^^'' See also article 7 of the 1982 Convention. Note that straight baselines may not be drawn
to and from low-tide elevations, unless lighthouses or similar installations which arepermanently above sea level have been built on them: see article 4(3),1958 Convention
on the Territorial Sea and article 7(4), 1982 Convention on the Law of the Sea. See also
Qatar v. Bahrain, ICJ Reports, 2001, paras. 201 and 208.
Territorial \t7aters Order in Council, 1964, article 3, s. 1, 1965, Part 111, s. 2, p 6452h. See
also the Territorial Sea (Limits) Order 1989 regarding the Straits of Dover. See generally,
as regards state practice, Churchill and Lowe, Law of the Sea, pp. 38-41, who note thatsome fifty-five to sixty-five states have used straight baselines, and A4. Whiteman, Digest
ofInternationa1 Latv, Washington, vol. IV, pp. 21-35.
j4 See Churchill and Lowe, Law of the Sea, p. 39. See also the objection of the European
Union to the use by Iran and Thailand of straight baselines along practically their entire
coastlines, UKMIL, 69BYIL, 1998, pp. 540-2, and US objections to the use of straightbaselines by Thailand, DUSPIL, 2000, p. 703.
35 ICJ Reports, 2001, para. 212.
j6 Ibid., para. 213. The Court rejected Bahrain's claim that certain maritime features east ofits main islands constituted a fringe of islands: ibid., para. 214.
" See also article 8(2) of the 1982 Convention.

T H E LAW O F T H E S E A

499

Problems also arise as to the approach to be adopted with regard to bays,
in particular whether the waters ofwide-mouthed bays ought to be treatedas other areas of the sea adjacent to the coast, so that the baseline of theterritorial sea would be measured from the low-water mark of the coastof the bay, or whether the device of the straight baseline could be used
to 'close off' the mouth of the bay of any width and the territorial limit
measured from that line.
It was long accepted that a straight closing line could be used acrossthe mouths of bays, but there was considerable disagreement as to thepermitted width of the bay beyond which this would not operate.39 The
point was settled in article 7 of the 1958 Convention on the Territorial
Sea. This declared that:
if the distance between the low-water marks of the natural entrance pointsof a bay does not exceed twenty-four miles, a closiilg line may be drawl1
between these two low-water marks, and the waters enclosed thereby shallbe considered as internal waters,otherwise a straight baseline of 24 miles may be drawn.40
This provision, however, does not apply to historic bays. These arebays the waters of which are treated by the coastal state as internal inview of historic rights supported by general acquiescence rather thanany specific principle of international law.41 A number of states haveclaimed historic bays: for example, Canada with respect to Hudson Bay(although the US has opposed this)" and certain American states asregards the Gulf of ~ o n s e c a . The~ ? question of this Gulf came before theInternational Court in the Land, Island and Maritime Frontier Dispute(El Salvador/Honduras; Nicaragua intervening).44 The Court noted thatthe states concerned and commentators were agreed that the Gulf was'' See e.g. Brown, International Law of the Sea, vol. I , p. 28; Churchill and Lowe, Law of
the Sea, pp. 41 ff. and O'Connell, International Law uf the Sea, vol. I, pp. 209. See also
G. Westerman, The Juridical Bay, Oxford, 1987.
See e.g. the North Atlantic Coast Fisheries case, 11 RIAA, p. 167 (1910) and the AngloNortvegian Fisheries case, ICJ Reports, 1951, 17. 116; 18 ILR, p. 86, to the effect that no
general rules of international law had been uniformly accepted.
40 See also article 10 of the 1982 Convention.
See the Euzisia/Libya Continental Shelf case, ICJ Reports, 1982, pp. 18, 74; 67 ILR,
pp. 4, 67.
42 See IVhiteinan, Digest, vol. I\', pp. 250-7.
See El Salvador v. hTicaragua11 AJIL, 1917, p. 674.
44 ICJ Reports, 1992, p. 351; 97 ILR, p. 266.

''
''

"

500

I N T E R N A T I O N A L LAW

a historic bay, but this was defined in terms of the particular historicalsituation of that Gulf, especially as it constituted a pluri-state bay, forwhich there were no agreed and codified general rules of the kind wellestablished for single-state bays.45In the light of the particular historicalcircumstances and taking particular note of the 1917 decision, the Court
found that the Gulf, beyond a long-accepted 3-mile maritime belt for thecoastal states, constituted historic waters subject to the co-ownership or acondominium ofthe three coastal states.46The Court continued by notingthat the vessels of other states would enjoy a right of innocent passage inthe waters beyond the coastal belt in order to ensure access to any oneof the three coastal states.47Having decided that the three states enjoyeda condominium within the Gulf, the Court concluded that there was a
tripartite presence at the closing line of the
The United States Supreme Court has taken the view that wherewaters are outside the statutory limits for inland waters, the exercise ofsovereignty required to establish title to a historic bay amounted to the
exclusion of all foreign vessels and navigation from the area claimed. The
continuous authority exercised in this fashion had to be coupled withthe acquiescence of states. This was the approach in the US v. State of
Alaska case" concerning the waters of Cook Inlet. The Supreme Court
held that Alaska had not satisfied the terms and that the Inlet had not been
regarded as a historic bay under Soviet, American or Alaskan sovereignty.
Accordingly, it was the federal state and not Alaska which was entitled tothe subsurface of Cook ~ n l e t . ~ 'In response to the Libyan claim to the Gulf of Sirte (Sidra) as a historic
bay and the consequent drawing of a closing line of nearly 300 miles in
ICJ Reports, 1992, p. 589; 97 ILR, p. 505. But cf. the Dissenting Opinion of Judge Oda, ICJ
Reports, 1992, p. 745; 97 ILR, p. 661.
46 ICJ Reports, 1992, p. 601; 97 ILR, p. 517.
ICJ Reports, 1992, p. 605; 97 ILR, p. 521.
48 ICJ Reports, 1992, pp. 608-9; 97 ILR, pp. 524-5. See also M. N. Shaw, 'Case Concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua
Intervening), Judgment of 11 September 1992: 42 ICLQ, 1993, p. 929, and A. Gioia, 'The
Law of Multinational Bays and the Case of the Gulf of Fonseca', Netherlands YIL, 1993,
p. 81.
422 US 184 ( 1 9 7 5 ) .See also L. J. Bouchez, TheRegilne ofBays ill International Law, Leiden,
1963, and the Tunisia-Libya Continellto1 Skelfcase, ICJ Reports, 1982, pp. 18, 7 4 ; 67 ILR,
pp. 4 , 67.
j0 See also United States r.California 38 1 US 139 ( 1965); United States v. L o ~ ~ i s i a n(LouisianaaBo~indaryCase) 394 US 11 ( 1 9 6 9 ) ; Lrnited States v. Maine (Rhode Island and N e w York
Boundary Case) 471 US 375 ( 1 9 8 5 ) and Alabama and Mississippi Boundary Caxe, UnitedStates v. Lot~isiana470US 93 ( 1 9 8 5 ) .
4'

''

''

T H E LAW O F T H E S E A

501

length in 1973, several states immediately protested, including the US andthe states ofthe European ~ o m r n u n i t ~The
. ' ~ US in a note to Libya in 1974
referred to 'the international law standards of past open, notorious andeffective exercise of authority, and the acquiescence of foreign nation^"^and has on several occasions sent naval and air forces into the Gulf inorder to maintain its opposition to the Libyan claim and to assert that thewaters of the Gulf constitute high seas.53Little evidence appears, in fact,
to support the Libyan contention.

As far as islands are concerned, the general provisions noted above regarding the measurement of the territorial sea apply. Islands are definedin the 1958 Convention on the Territorial Sea as consisting of 'a naturallyformed area of land, surrounded by water, which is above water at hightide',j5 and they can generate a territorial sea, contiguous zone, exclusive
economic zone and continental shelf where r e l e ~ a n t . "Where~
there exists a chain of islands which are less than 24 miles apart, a continuousband of territorial sea may be generated.57However, article 121 (3) of the1982 Convention provides that 'rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone
or continental shelf'.58Article 121(3) begs a series of questions, such as
See Churchill and Lowe, Law of the Sea, p. 45, and UKMIL, 57 BYIL,1986, pp. 579-80. See
also F. Francioni, 'The Gulf of Sidra Incident (United States v. Libya) and International
Law: 5 Italian Yearbook of International Law, 1980-1, p. 85.
See 68 AJIL, 1974, p. 510. See also Cumulative DUSPIL 1981-8, Washington, 1994, uol. 11,
p. 1810.
See e.g. UKMIL, 57 BYIL, 1986, pp. 581-2.
i4 See e.g. H. T17. Jayewardene, The Regime oflslands in International Law, 1990; D. W. Bowett,
The Legal Regirne of Islands in International Law, New York, 1979; C. Synlmons, The
Maritime Zone of Islands in International Law, The Hague, 1979; J. Simonides, 'The Legal
Status of Islands in the New Law of the Sea', 65 Rewe de Droit Inter~zational,1987, p. 161,
and R. O'Keefe, 'Palm-Fringed Benefits: Island Dependencies in the New Law of the Sea',
45 ICLQ, 1996, p. 408.
Article lO(1). See also article 121(1) of the 1982 Convention.
j6 Article 121(2) of the 1982 Convention. See also the Jan Mayen (Denmark v. Norway)
case, ICT Reports, 1993, pp. 37, 64-5; 99 ILR, pp. 395, 432-3. Article 10(2) of the 1958
Convention on the Territorial Sea referred only to the territorial sea of islands.
" See Eritrea/Yernen (Phase Two: Maritime Delirrlitation), 119 ILR, pp. 417, 463.
j8 See the Jan Muyen report, 20 ILM, 1981, pp. 797, 803; 62 ILR, pp. 108, 114, and the
Declaration by Judge Evensen in the Jan Mayen (Denmark v. Norivay) case, ICJ Reports,
1993, pp. 37, 84-5; 99 ILR, pp. 395, 452-3. Note, as regards Rockall and the conflicting UK, Irish, Danish and Icelandic views, Symmons, Maritime Zone, pp. 117-18, 126;
j1

''

"

''

j02

I N T E R N A T I O N A L LAW

the precise dividing line between rocks and islands and as to the actual
meaning of an 'economic life of their own', and a number of states havemade controversial claims.j9 Whether this provision over and above its
appearance in the Law of the Sea Convention is a rule of customary law
is unclear.60
Archipelagic states6'
Problems have arisen as a result of efforts by states comprising a number of islands to draw straight baselines around the outer limits of theirislands, thus 'boxing in' the whole territory. Indonesia in particular has
resorted to this method, against the protests of a number of states since
it tends to reduce previously considered areas of the high seas extensively used as shipping lanes to the sovereignty of the archipelago state
concerned.62
E. D. Brown, 'Rockall and the Limits of National Jurisdiction of the United Kingdom: 2
Marine Policy, 1978, pp. 181-211 and 275-303, and O'Keefe, 'Palm-Fringed Benefits'. See
also 878 HC Deb., col. 82, M'ritten Answers, and The Tinzes, 8 May 1985, p. 6 (Danish
claims) and the Guardian, 1 may 1985, p. 30 (Icelandic claims). UK sovereignty over theuninhabitedisland ofRockall was proclaimedin 1955 and confirmed by the Island of Rockall Act 1972, UKMIL, 68 BYIL, 1997, p. 589. The UK Minister of State declared that the 12mile territorial sea around Rockall was consistent with the terms of the 1982 Convention
and that there was no reason to believe that this was not accepted by the international
community, apart from the Republic of Ireland, UKMIL, 60 BYIL, 1989, p. 666. The UK
claim to a 200-mile fishing zone around Rockall made in the Fishery Limits Act 1976 waswithdrawn in 1997 consequent upon accession to the Law of the Sea Convention, 1982
and the 12-mile territorial sea confirmed: see UKMIL, 68 BYIL, 1997, pp. 599-600 and
UKMIL, 71 BYIL, 2000, p. 601.
'9 See e.g. Churchill and Lowe, Law of the Sea, pp. 163-4, and J. I. Charney, 'Rocks that
Cannot Sustain Human Habitation', 93 AJIL, 1999, p. 873.
" Churchill and Lowe, Law of the Sea, p. 164.
6 ' See e.g. Brown, International Law of the Sea, vol. I, chapter 8; Churchill and Lowe, Latv of
the Sea, chapter 6; O'Connell, International Law ofthe Sea, ~701.I , chapter 6; Bowett, Legal
Regime, chapter 4; C. F. Amerasinghe, 'The Problem of Archipelagos in the International
La147 of the Sea', 23 ICLQ, 1974, p. 539, and D. P. O'Connell, 'Mid-Ocean Archipelagos inInternational Law', 45 BYIL, 1971, p. 1.
62 O'Connell, 'Mid-Ocean Archipelagos: pp. 23-4, 45-7 and 51, and Whiteman, Digest,
vol. 117, p. 284. See also the Indonesian Act No. 4 of 18 February 1960 Concerning Indonesian Waters, extracted in Brown, International Law of the Sea, vol. 11, p. 98; the Philippines
Act to Define the Baselines of the Territorial Sea of the Philippines, Act No. 3046 of 17
June 1961, and the Philippines Declaration with respect to the 1982 Convention, ibid.,p p 100-1 (with objections from the USSR and Australia, ibid., pp. 101-2). See, as to the
US objection to the Philippines Declaration, Cumulative DUSPIL 1981-8, vol. 11, p. 1066,
and to claims relating to the Faroes, Galapagos, Portugal and Sudan, Roach and Smith,United States Responses, pp. 112 ff.

T H E LAW O F T H E S E A

503

There has been a great deal of controversy as to which internationallaw principles apply in the case of archipelagos and the subject was not. ~ ~ 46(a) deexpressly dealt with in the 1958 Geneva C ~ n v e n t i o nArticle
fines an archipelagic state as 'a state constituted wholly by one or morearchipelagos and may include other islands', while article 46(b) defines
archipelagos as 'a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated
that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been
regarded as such'. This raises questions as to whether states that objectively fall within the definition are therefore automatically to be regarded
as archipelagic states. The list of states that have not declared that theyconstitute archipelagic states, although they would appear to conform withthe definition, would include the UK and ~ a p a nBahrain. ~ ~ contended in
Qatar v. Bahrain that it constituted a 'de facto archipelago or multiple
island state' and that it could declare itself an archipelagic state under
the Law of the Sea Convention, 1982, enabling it to take advantage of thestraight baselines rule contained in article 47. The Court, however, notedthat such a claim did not fall within Bahrain's formal submissions and thus
it did not need to take a position on the i~sue.~%rticle47 provides thatan archipelagic state may draw straight archipelagic baselines joining
the outermost points of the outermost islands and drying reefs of thearchipelago, which would then serve as the relevant baselines for otherpurposes. There are a number of conditions before this may be done,
however, and article 47 provides as follows:
1. An archipelagic state may draw straight archipelagic baselines joining
the outermost points of the outermost islands and drying reefs of thearchipelago provided that within such baselines are included the mainislands and in areas in which the ratio of the area of the water to the areaof the land, including atolls, is between 1 to 1 and 9 to 1.
2. The length of such baselines shall not exceed 100 nautical miles, exceptthat up to 3 per cent of the total number of baselines enclosing any
archipelago may exceed that length, up to a maximum length of 125
nautical miles.
3. The drawing of such baselines shall not depart to any appreciable extent
from the general configuration of the archipelago.

6 3 But see, as regards 'coastal archipelagos', article 4 of the 1958 Convention on the Territorial

64

Sea.
See e.g. Churchill and Lowe, Law ofthesea, p. 121.

" ICJ Reports, 2001, paras. 181-3.

504

I N T E R N A T I O N A L LAW

4. Such baselines shall not be drawn fromlow-tide elevations, unless light-

houses or similar installations which are permanently above sea level
have been built on them or where a low-tide elevation is situated ~vhollyor partly at a distance not exceeding the breadth of the territorial sea
from the nearest island.
5. The system of such baselines shall not be applied by an archipelagicstate in such a manner as to cut off from the high seas or the exclusive
economic zone the territorial sea of another state.
6. If a part of the archipelagic waters of an archipelagic state lies between
two parts of an immedidtely adjacent neighbouring state, existing rights
and all other legitimate interests which the latter state has traditionallyexercised in such waters and all rights stipulated by agreement between
those states shall continue and be respected.
7. For the purpose of computing the ratio ofwater to land under paragraph
1, land areas may include waters lying within the fringing reefs of islands
and atolls, including that part of a steep-sided oceanic plateau which is
enclosed or nearly ellclosed by a chain of limestone islands and drying
reefs lying on the perimeter of the plateau.
8. The baselines drawn in accordance with this article shall be shown on
charts of a scale or scales adequate for ascertaining their position. Alternatively, lists of geographic co-ordinates of points, specifying thegeodetic datum, may be substituted.
9. The archipelagic states shall give due publicity to such charts or lists ofgeographical co-ordinates and shall deposit a copy of each such chartor list with the Secretary-General of the United Nations.

All the waters within such baselines are archipelagic waters66over which
the state has sovereignty,67 but existing agreements, traditional fishingrights and existing submarine cables must be re~pected.~'In addition,
ships of all states shall enjoy the rights of innocent passage througharchipelagic w a t e d 9 and all the ships and aircraft are to enjoy a rightof archipelagic sea lanes passage through such lanes and air routes designated by the archipelagic state for 'continuous and expeditious passage:70
In response to a reported closure in 1988 of the Straits of Sunda andLombok by Indonesia, the US stressed that the archipelagic provisionsof the 1982 Convention reflected customary international law and thatthose straits were subject to the regime of archipelagic sea lanes passage.
66 Article 50 provides that within its archipelagic waters, the archipelagic state may draw
67''

closing lines for the delimitation of internal waters.
Article 49.
Article 51.
6' Article 52.
Article 53. For recent state practice, see Churchill and Lowe, Law of the Sea, pp. 125 ff.

T H E LAW O F T H E S E A

505

Accordingly, it was pointed out that any interference with such passage
would violate international law.71
The width of the territorial seai2
There has historically been considerable disagreement as to how far the
territorial sea may extend from the baselines. Originally, the 'cannonshot' rule defined the width required in terms of the range of shore-based
artillery, but at the turn of the nineteenth century, this was transmuted
into the 3-mile rule. This was especially supported by the United States andthe United Kingdom, and any detraction had to be justified by virtue ofhistoric rights and general acquiescence as, for example, the Scandinavian
claim to 4 miles.i3
However, the issue was much confused by the claims of many coastal
states to exercise certain jurisdictional rights for particular purposes: forexample, fisheries, customs and immigration controls. It was not until after the First World War that a clear distinction was made between
claims to enlarge the width of the territorial sea and claims over particularzones.
Recently the 3-mile rule has been discarded as a rule of general application to be superseded by contending assertions. The 1958 Geneva
Convention on the Territorial Sea did not include an article on the subject because of disagreements among the states, while the 1960 Geneva
Conference failed to accept a United States-Canadian proposal for a
6-mile territorial sea coupled with an exclusive fisheries zone for a further
6 miles by only one vote.i4
Article 3 of the 1982 Convention, however, notes that all states havethe right to establish the breadth of the territorial sea up to a limit notexceeding 12 nautical miles from the baselines. This clearly accords withthe evolving practice of states.75The UK adopted a 12-mile limit in the" 83 AJIL, 1989, pp. 559-61. See also Cumulative DUSPIL 1981-8, vol. 11, p. 2060.

'' See e.g. Brown, International Law of the Sea, vol. I , 17. 43; Churchill and Lowe, Law of
the Sea, pp. 71 ff., and O'Connell, International Law of the Sea, vol. I, chapter 4. See also
Opperzheirn's Internatiorlal Law, p. 6 1 1 .
7' See e.g. H. S. K. Kent, 'Historical Origins of the Three-mile Limit', 48 AJIL, 1954, p. 537,
and The Arina (1805) 165 ER 809. See also US v. Kessler 1 Baldwin's C C Rep. 15 (1829).
7"eeO'Connell, Irlternational Law of the Sca, vol. I, pp. 163-4.
75 The notice issued by the Hydrographic Department of the Royal Navy on 1 Tanuary 2002shows that 148 states or territories claim a 12-mile territorial sea, UKMIL, 72 BYIL, 2001,
pp. 634-9, with 18 states or territories claiming less than this. Only 10 states claimed
more than 12 miles. A table of National Maritime Claims issued by the UN shows that,

506

I N T E R N A T I O N A L LAW

Territorial Sea Act 1987, for instance, as did the US by virtue of Proclamation No. 5928 in December 1988.

Delimitation o f the territorial sea between states with opposite
or adjacent coasts76
Article 15 of the 1982 Convention, following basically article 12 of the
Geneva Convention on the Territorial Sea, 1958, provides that where
no agreement has been reached, neither state may extend its territorial
sea beyond the median line every point of which is equidistant from thenearest point on the baselines from which the territorial sea is measured.77
This provision, however, does not apply where it is necessary by reason ofhistoric title or other special circumstances to delimit the territorial sea ofthe two states in a different way. The Court in Qatar v. Bahrain noted that
article 15 was to be regarded as having a custoinary law character7'and
may be referred to as the 'equidistance/special circumstances' principle.
The Court went on to declare that, 'The most logical and widely practised
approach is first to draw provisionally an equidistance line and then to
consider whether that line must be adjusted in the light of the existenceof special circ~mstances."~T h e juridical nature of the territorial seaa0
There have been a number of theories as to the precise legal character of the territorial sea of the coastal state, ranging from treating theterritorial sea as part of the res cornmunis, but subject to certain rights
exercisable by the coastal state, to regarding the territorial sea as part ofthe coastal state's territorial domain subject to a right of innocent passage by foreign ve~sels.~'
Nevertheless, it cannot be disputed that thecoastal state enjoys sovereign rights over its maritime belt and extensive
as of 11 October 2002, 139 states claimed a territorial sea of 12 miles or under, with 9
states claiming a larger territorial sea: see A156158 and http://~'~w.un.orglDeptsllosl

LEGISLATIONANDTREATIESIPDFFILESIC~~~~IIS-~~~~.~~~.
Churchill and Lowe, Law of the Sea, pp. 182 ff. See be lo^, p. 527, with regard to thedelimitationof the exclusive economic zone and continental shelf.
-See also Qatar v. Bahrain, ICJ Reports, 2001, para. 177.
" See also e.g. the Dubai/Sharjah case, 91 ILR, pp. 543, 663.
79 ICJ Reports, 2001, para. 176.
See Brown, blternational Law of the Sea, vol. I, chapter 6; O'Connell, International Law of
the Sea, vol. I, chapter 3. See also Brownlie, Principles, p. 194, and Churchill and Lowe,
Law of the Sea, chapter 4.
O'Connell, International Law of the Sea, vol. I, pp. 60-7.

"'ee

''

T H E LAW O F T H E S E A

507

jurisdictional control, having regard to the relevant rules of internationallaw. The fundamental restriction upon the sovereignty of the coastal stateis the right of other nations to innocent passage through the territorialsea, and this distinguishes the territorial sea from the internal waters of
the state, which arefullywithin the unrestricted jurisdiction of the coastal
nation.
Articles 1 and 2 ofthe Convention on the Territorial Sea, 1 9 5 8 provide~~that the coastal state's sovereignty extends over its territorial sea and to
the airspace and seabed and subsoil thereof, subject to the provisionsof the Convention and of international law. The territorial sea forms an
undeniable part of the land territory to which it is bound, so that a cessionof land will automatically include any band of territorial waters.83
The coastal state may, if it so desires, exclude foreign nationals andvessels from fishing within its territorial sea and (subject to agreements
to the contrary) from coastal trading (known as cabotage), and reserve
these activities for its own citizens.
Similarly the coastal state has extensive powers of control relating to,amongst others, security and customs matters. It should be noted,
however, that how far a state chooses to exercise the jurisdiction andsovereignty to which it may lay claim under the principles of international law will depend upon the terms of its own municipal legislation,and some states will not wish to take advantage of the full extent of thepowers permitted them within the international legal system.8"

The right of innocentpassage
The right of foreign merchant ships (as distinct from warships) to passunhindered through the territorial sea of a coast has long been an accepted principle in customary international law, the sovereignty of thecoast state notwithstanding. However, the precise extent of the doctrineis blurred and open to contrary interpretation, particularly with respect
to the requirement that the passage must be 'inn~cent'.~"" See also article 2 of the 1982 Convention.

'' See the Grisbadarnu case, 11 RIAA, p. 147 (1909) and the Beagle Channel case, HMSO,
1977; 52 ILR, p. 93. See also Judge McNair, Anglo-hrorivegiail Fisheries case, ICT Reports,
1951,pp. 116, 160; 18 ILR,pp. 86, 113.
R 4 See also R v. Keyn (1876) 2 Ex.D. 63 and the consequential Territorial Waters Jurisdiction
Act 1878.
R5 See Brown, Iiztertzatiotzal Law of the Sea, vol. I, pp. 53 ff.; Churchill and Lowe, Law of
the Sea, pp. 82 ff., and O'Connell, International Law of the Sea, vol. I, chapter 7. See also
Opperzheim's International Law, p. 615.

508

I N T E R N A T I O N A L LAW

The doctrine was elaborated in article 14 of the Convention on the
Territorial Sea, 1958, which emphasised that the coastal state must nothamper innocent passage and must publicise any dangers to navigationin the territorial sea of which it is aware. Passage is defined as navigation
through the territorial sea for the purpose of crossing that sea without
entering internal waters or of proceeding to or from that sea without
entering internal waters or ofproceeding to or from internal waters. It may
include temporary stoppages, but only if they are incidental to ordinary
navigation or necessitated by distress or force r n a j e ~ r e . ~ ~The coastal state may not impose charges for such passage unless they
are in payment for specific services, and ships engaged in passages are required to comply with the coastal state's regulations covering, for example,
navigation in so far as they are consistent with international law.
Passage ceases to be innocent under article 14(4) of the 1958 Convention where it is 'prejudicial to the peace, good order or security of thecoastal state' and in the case of foreign fishing vessels when they do not
observe such laws and regulations as the coastal state may make and publish to prevent these ships from fishing in the territorial sea. In addition,submarines must navigate on the surface and show their flag.
Where passage is not innocent, the coastal state may take steps to prevent it in its territorial sea and, where ships are proceeding to internal
waters, it may act to forestall any breach of the conditions to which admission of such ships to internal waters is subject. Coastal states have thepower temporarily to suspend innocent passage of foreign vessels where
it is essential for security reasons, provided such suspension has been
published and provided it does not cover international straits.
Article 19(2) of the 1982 Convention has developed the notion of innocent passage contained in article 14(4) of the 1958 Convention by theprovision of examples of prejudicial passage such as the threat or use
of force; weapons practice; spying; propaganda; breach of customs, fiscal,
immigration or sanitary regulations; wilful and serious pollution; fishing;research or survey activities andinterference with coastal communications
or other facilities. In addition, a wide-ranging clause includes 'any activity
not having a direct bearing on passage'. This would appear to have altered
the burden ofproof from the coastal state to the other partywith regard to
innocent passage, as well as being somewhat difficult to define. By virtue
86 See articles 17 and 18 of the 1982 Convention. Passage includes crossing the territorial sea

in order to call at roadsteads or port facilities outside internal waters: article 18(1) and see
the Nicaragua case, ICT Reports, 1986, pp. 12, 111; 76 ILR, p. 1.

T H E LAW O F T H E S E A

509

of article 24 of the 1982 Convention, coastal states must not hamper the
innocent passage of foreign ships, either by imposing requirements uponthem which would have the practical effect of denying or impairing theright or by discrimination. Article 17 of the Geneva Convention on the
Territorial Sea, 1958 provided that foreign ships exercising the right ofinnocent passage were to comply with the laws and regulations enacted
by the coastal state, in particular those relating to transport and navigation. This was developed in article 21(1) of the 1982 Convention, which
expressly provided that the coastal state could adopt laws and regulations
concerning innocent passage with regard to:(a) the safety of navigation and the regulation of maritime traffic;(b) the protection of navigational aids and facilities and other facilities or
installations;(c) the protection of cables and pipelines;(d) the conservation of the living resources of the sea;(e) the prevention of infringement of the fisheries laws and regulations of
the coastal state;(f) the preservation of the environment of the coastal state and the prevention, reduction and control of pollution thereof;(g) rnariile scientific research and hydrographic surveys;(h) the prevention of infringement of the customs, fiscal, immigration or
sanitary laws and regulations of the coastal state.

Breach of such laws and regulations will render the offender liable toprosecution, but will not make the passage non-innocent as such, unlessarticle 19 has been infringed.87
One major controversy of considerable importance revolves aroundthe issue of whether the passage of warships in peacetime is or is not
innocent.88The question was further complicated by the omission of anarticle on the problem in the 1958 Convention on the Territorial Sea, andthe discussion of innocent passage in a series of articles headed 'Rules
applicable to all ships'. This has led some writers to assert that this includes warships by inference, but other authorities maintain that such animportant issue could not be resolved purely by omission and inference,
especially in view of the reservations by many states to the Convention
Under article 22 of the 1982 Convention, the coastal state may establish designated sea
lanes and traffic separation schemes in its territorial sea. See UKMIL, 64 BYIL, 1993, p. 688
for details of traffic separation schemes around the UK.
See e.g. O'Connell, International Law of the Sea, vol. I , pp. 274-97. See also OppenhelmiInternational Law, p. 618.

510

I N T E R N A T I O N A L LAW

rejecting the principle of innocent passage for warships and in the lightof comments in the various preparatory materials to the 1958 Geneva
C~nvention.~~
It is primarily the Western states, with their preponderant naval power,that have historically maintained the existence of a right of innocent passage for warships, to the opposition of the communist and Third World
nations. However, having regard to the rapid growth in their naval capacity in recent years and the ending of the Cold War, Soviet attitudes had
undergone something of a m o d i f i c a t i ~ n . ~ ~In September 1989, the US and the USSR issued a joint 'Uniform Interpretation of the Rules of International Law Governing Innocent
This reaffirms that the relevant rules of international law are stated in the1982 Convention. It then provides that:[all1 ships, including warships, regardless of cargo, armament or means ofpropulsion, enjoy the right of innocent passage through the territorial sea
in accordance with international law, for which neither prior notification
nor authorisation is required.

The statement notes that where a ship in passage through the territorial
sea is not engaged in any of the activities laid down in article 19(2), it 'isin innocent passage' since that provision is exhaustive. Ships in passage
are under an obligation to comply with the laws and regulations of thecoastal state adopted in conformity with articles 21, 22, 23 and 25 of
the 1982 Convention, provided such laws and regulations do not havethe effect of denying or impairing the exercise of the right of innocent
passage.
This important statement underlines the view that the list of activities
laid down in article 19(2)is exhaustive so that a ship passing through theterritorial sea not engaging in any ofthese activities is in innocent passage.
It also lends considerable weight to the view that warships have indeed" O'Connell, International Laiv of the Sea, vol. I, pp. 290-2. See also Brownlie, Principles,

pp. 197-8.
" See also Churchill and Lowe, Laiv of the Sea, pp. 54-6. The issue was left open at the"Third UN Conference on the Law of the Sea and does not therefore appear in the 1982
Convention. Note, however, that T17esternand communist states both proposed includinga reference to warships in early sessions of the Conference: see UNCLOS 111, Official
Records, vol. 111, pp. 183, 203, 192 and 196. See also article 29(2) of the 1975 Informal
Single Negotiating Text. The right ofwarships to innocent passage was maintained by the
US following an incident during which four US warships sailed through Soviet territorial
waters off the Crimeail coast: see The Times, 19 March 1986, p. 5.
See 84 AJIL, 1990, p. 239.

T H E LAW O F T H E S E A

511

a right of innocent passage through the territorial sea and one that does
not necessitate prior notification or a u t h ~ r i s a t i o n . ~ ~Jurisdiction over foreign ships Y"
Where foreign ships are in passage through the territorial sea, the coastal
state may only exercise its criminal jurisdiction as regards the arrest of
any person or the investigation of any matter connected with a crimecommitted on board ship in defined situations. These are enumerated inarticle 27(l) of the 1982 Convention, reaffirming article19(1) of the 1958
Convention on the Territorial Sea, as follows:(a) if the consequences of the crime extend to the coastal state; or (b) if thecrime is of a kind likely to disturb the peace ofthe country or the good orderof the territorial sea; or (c) if the assistance of the local authorities has beenrequested by the master of the ship or by a diplomatic agent or consular
officer of the country of the flag state; or (d) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or pyschotropic
substai~ces.~~

However, if the ship is passing through the territorial sea having left theinternal waters of the coastal state, then the coastal state may act in any
manner prescribed by its laws as regards arrest or investigation on board
ship and is not restricted by the terms of article 27(1). But the authoritiesof the coastal state cannot act where the crime was committed before theship entered the territorial sea, providing the ship is not entering or has
not entered internal waters.
Under article 28 of the 1982 Convention, the coastal state should notstop or divert a foreign ship passing through its territorial sea for the
purpose of exercising civil jurisdiction in relation to a person on board
ship, nor levy execution against or arrest the ship, unless obligations are" See also Cumulative DUSPIL 1981-8, vol. 11, pp. 1844 ff., and UKMIL, 65 BYIL, 1994,

pp. 642-7. See also Cumulative DUSPIL 1981-8, vol. 11, p. 1854 with regard to the claim bysome states that the passage of nuclear-powered ships or ships carrying nuclear substances
through territorial waters requires prior authorisation or prior consent. See also UKMIL,
62 BYIL, 199 1, pp. 632-3 with regardto UKviews on claims concerningprior authorisationor consent with regard to the passage of ships carrying hazardous wastes.
" See e.g. O'Connell, Irlterrlatiorlal Laiv of the Sea, vol. I, chapters 23 and 24. See also
Oppenheirn's International Law, p. 620, and Brown, International Latv o f the Sea, vol. I,
p. 62. Note that these rules are applicable to foreign ships and government commercial
ships.
The latter phrase was added by article 27(1) of the 1982 Conventioi~.

"

512

I N T E R N A T I O N A L LAW

involved which were assumed by the ship itself in the course of, or for the
purpose of, its voyage through waters of the coastal state, or unless theship is passing through the territorial sea on its way from internal waters.
The above rules do not, however, prejudice the right of a state to levy
execution against or to arrest, for the purpose of any civil proceedings, aforeign ship lying in the territorial sea or passing through the territorial
sea after leaving internal waters.95
Warships and other government ships operated for non-commercial
purposes are immune from the jurisdiction of the coastal state, although
they may be required to leave the territorial sea immediately for breach ofrules governing passage and the flag state will bear international responsibility in cases of loss or damage suffered as a result.96
International straitsyi

Article 16(4) of the 1958 Convention on the Territorial Sea declares that:
there shallbe n o suspension ofthe innocent passage offoreign ships throughstraits which are used for international navigation between one part of thehigh seas and another part of the high seas or the territorial sea of a foreignstate.

This provision should be read in conjunction with the decision in
the Corfu Channel case.98In this case, British warships passing throughthe straits were fired upon by Albanian guns. Several months later, anaugmented force of cruisers and destroyers sailed through the North Corfu
Channel and two of them were badly damaged after striking mines. This
impelled the British authorities to sweep the Channel three weeks later," See also article 20 of the 1958 Convention on the Territorial Sea and the Contiguous
Zone.
" Articles 29-32 of the 1982 Convention. See also articles 21-3 of the 1958 Co~lve~ltionon
the Territorial Sea and the Contiguous Zone.
97 See e.g. Brown, International Law of the Sea, vol. I, chapter 7; Churchill and Lowe, Law of

the Sea, chapter 5; O'Connell, International Law of the Sea, vol. I , chapter 8; R. Lapidoth,
Les Detroits en Droit International, Paris, 1972; T. L. Koh, Straits in International Navigation, London, 1982; J. N. Moore, 'The Regime of Straits and the Third United Nations
Conference on the Law of the Sea', 74 AJIL, 1980, p. 77; IT. M. Reisman, 'The Regime of
Straits and National Security', ibid., p. 48; H . Caminos, 'Le Regime des Detroits dans la
Convention des Nations Unies de 1982 sur le Droit de la Mer: 205 HR, 1987 V, p. 9; S. N.
Nandan and D. H. Anderson, 'Straits Used for International Navigation: A Commentary
on Part 111 of the UN Convention on the Law of the Sea 1982: 60 BYIL,1989, p. 159;
Opperzheim's Internutioilal Law, p. 633; Nguyen Quoc Dinh et al., Droit Irzteri~ationalPublic, p. 1168, and B. B. Jia, The Regime of Straits in International Law, Oxford, 1998.
98 ICJ Reports, 1949, y . 4; 16 AD, p. 155.

T H E LAW O F T H E S E A

5I3

and to clear it of some twenty mines of German manufacture. The Court,
in a much-quoted passage, emphasised that:states in time of peace have a right to send their warships through straits
used for international navigation between two parts ofthe high seas without
the previous authorisation of a coastal state, provided that the passage isinnocent.99

It was also noted that the minesweeping operation was in no way 'innocent' and was indeed a violation of Albania's sovereignty, although theearlier passages by British naval vessels were legal.loO
The 1982 Convention established a new regime for straits used forinternational navigation. The principle is reaffirmed that the legal statusof the waters of the straits in question is unaffected by the provisions
dealing with passage.'o'A new right of transit passage is posited with respect to straits used forinternational navigation between one part of the high seas or an exclusive
economic zone and another part ofthe high seas or an exclusive economic
zone.lo2It involves the exercise ofthe freedom of navigation and overflightsolely for the purpose of continuous and expeditious transit of the strait
and does not preclude passage through the strait to enter or leave a statebordering that strait.lU3States bordering the straits in question are not tohamper or suspend transit passage.lo4
There are three exceptions to the right: under article 36 where a route
exists through the strait through the high seas or economic zone of similarnavigational convenience; under article 38(1) in the case of a strait formedby 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 economic zoneof similar navigational convenience; and under article 45 where straits
connect an area of the high seas or economic zone with the territorial
Ibid., p. 28; 16 AD, p. 161. The Court emphasised that the decisive criterion regarding thedefinition of 'strait' was the geographical situation of the strait as connecting two parts of
the high seas, coupled with the fact that it was actually used for international navigation,
ibid. Note that article 16(4) added to the customary rights the right of innocent passage
from the high seas to the territorial sea of a state. This was of particular iillportance tothe question of access through the straits of Tiran to the Israeli port of Eilat: see further
helow, footnote 112.
loo Ibid., pp. 30-1, 33; 16 AD, pp. 163, 166. Note the final settlement of the case, UKMIL, 63
BYIL, 1992, p. 781.
lo' Articles 34 and 35.
lo' Article 37. See also R. P. Anand, 'Transit Passage and Overflight in International Straits:
26, Iildiarz Journal oflnternationul Law, 1986, p. 72, and Oppenheiin's Irzterizational Law,
p. 636.
lo'' Article 44.
lo3 Article 38.
99

j14

I N T E R N A T I O N A L LAW

sea of a third state. Ships and aircraft in transit must observe the relevant international regulations and refrain from all activities other thanthose incidental to their normal modes of continuous and expeditioustransit, unless rendered necessary by force mujeure or by distress.lOjThus,
although there is no formal requirement for 'innocent' transit passage,
the effect of articles 38 and 39 would appear to be to render transit passage
subject to the same constraints. Under article 45, the regime of innocent
passage will apply with regard to straits used for international navigation
excluded from the transit passage provisions by article 38(1) and to international straits between a part of the high seas or economic zone andthe territorial sea of a foreign state. In such cases, there shall be no suspension of the right to innocent passage.'06 The regime of transit passage
specifically allows for the passage of aircraft and probably for underwatersubmarines, while there are fewer constraints on conduct during passage
and less power for the coastal state to control passage than in the case of
innocent passage.lo7Transit passage cannot be suspended for security or
indeed any other reasons.108
It is unclear whether the right of transit passage has passed into customary law. Practice is as yet ambigu~us.'~'Some states have provided
explicitly for rights of passage through international straits. When the UK
extended its territorial sea in 1987 to 12 miles, one of the consequences
was that the high sea corridor through the Straits of Dover disappeared.
The following year an agreement was signed with France which related tothe delimitation of the territorial sea in the Straits of Dover and a joint
declaration was issued in which both governments recognised:rights of unimpeded transit passage for merchant vessels, state vessels and,in particular, warships following their normal mode of navigation, as well as
the right of overflight for aircraft, in the Straits of Dover. It is understoodthat, in accordance with the principles governing this regime under therules of international law, such passage will be exercised in a continuousand expeditious manner.' l olo5 Article 39. Under articles 41 and 42, the coastal state may designate sea lanes and traffic

separation schemes through international straits.
lo6 Article 45(2).

See articles 38-42. See also, as to the differences between the regimes of innocent passage
through the territorial sea, transit passage and archipelagic sea lanes passage, Nandan andAnderson, 'Straits', p. 169.
lox Article 44.
loo See Churchill and Lowe, Law of the Sea, p. 113, but cf. 0.
Schachter, 'International Law
in Theory and Practice: 178 HR, 1982, pp. 9,281.
' l o Crnnd 557. See also 38 ICLQ, 1989, pp. 416-17 and AFDI, 1988, p. 727.
lo'

T H E LAW O F T H E S E A

5l5

A number of straits are subject to special regimes, which are unaffected by
the above provisions.'" One important example is the Montreux Convention of 1936 governing the Bosphorus and Dardanelles Straits. This
provides for complete freedom of transit or navigation for merchant vessels during peacetime and for freedom of transit during daylight hours
for some warships giving prior notification to Turkey.'I2

The contiguous zone113
Historically some states have claimed to exercise certain rights over particular zones of the high seas. This has involved some diminution of theprinciple of the freedom of the high seas as the jurisdiction of the coastal
state has been extended into areas of the high seas contiguous to theterritorial sea, albeit for defined purposes only. Such restricted jurisdiction zones have been established or asserted for a number of reasons: for
instance, to prevent infringement of customs, immigration or sanitary
laws of the coastal state, or to conserve fishing stocks in a particular area,or to enable the coastal state to have exclusive or principal rights to theresources of the proclaimed zone.
In each case they enable the coastal state to protect what it regards as its
vital or important interests without having to extend the boundaries of its
territorial sea further into the high seas. It is thus a compromise between
the interests of the coastal state and the interests of other maritime nations
seeking to maintain the status of the high seas, and it marks a balance ofArticle 35(c).
See e.g. Churchill and Lowe, Laiv of the Sea, pp. 114 ff. See also UKI\/IIL, 57 BYIL, 1986,
p. 581, and F. A. \Tali, The Turkish Straits and NATO,Stanford, 1972. Note that the disputeas to the status of the Strait of Tiran and the Gulf of Aqaba between Israel and its Arabneighbours was specifically dealt with in the treaties of peace. Article 5(2) of the IsraelEgypt Treaty of Peace, 1979 and article 13(3) of the Israel-Jordan Treaty of Peace, 1994
both affirm that the Strait and Gulf are international waterways open to all nations for
unimpeded and non-suspendable freedom of navigation and overflight. As to the USUSSR Agreement o n the Bering Straits Region, see 28 ILM, 1989, p. 1429. See also, as
to the Great Belt dispute between Finland and Denmark, M . Koskenniemi, 'L'Affaire duPassage par le Grand-Belt: AFDI, 1992, p. 905. See, as t o other particular straits, e.g.
S. C. Truver, Gibraltar and the ,Mediterranean, Alphen, 1982; M. A. Morris, The Strait ofMagellan, Dordrecht, 1989; G . Alexander, Tlze BalticStraits, Alphen, 1982, and M. Leiffer,
Malacca, Singapore and Indonesia, Alphen, 1978.
11' See A. \I. Lowe, 'The Development of the Concept of the Contiguous Zone', 52 BYIL,
1981, p. 109; Brown, International Law of the Sea, vol. I , chapter 9; Churchill and Lowe,
Law of the Sea, chapter 7, and O'Conilell, International Law of the Sea, vol. 11, chapter 27.
See also S. Oda, 'The Concept of the Contiguous Zone: ICLQ, 1962, p. 131; OppenheinliInternational Law, p, 625, aildNguye11Quoc Dinh et al., DroitInternationalPub/i~p. 1174.
11'

516

I N T E R N A T I O N A L LAW

competing claims. The extension of rights beyond the territorial sea has,
however, been seen not only in the context of preventing the infringementof particular domestic laws, but also increasingly as a method of maintaining and developing the economic interests of the coastal state regarding
maritime resources. The idea of a contiguous zone (i.e. a zone bordering upon the territorial sea) was virtually formulated as an authoritativeand consistent doctrine in the 1930s by the French writer Gidel,'I4 andit appeared in the Convention on the Territorial Sea. Article 24 declaredthat:
In a zone of the high seas contiguous to its territorial sea, the coastal state
may exercise the control necessary to:(a) Prevent infringement of its custon~s,fiscal, immigration or sanitary
regulations within its territory or territorial sea;(b) Punish infringement of the above regulations committed within its
territory or territorial sea.

Thus, such contiguous zones were clearly differentiated from claims to fullsovereignty as parts of the territorial sea, by being referred to as part of thehigh seas over which the coastal state may exercise particular rights. Unlike
the territorial sea, which is automatically attached to the land territory of
the state, contiguous zones have to be specifically claimed.
While sanitary and immigration laws are relatively recent additions to
the rights enforceable over zones of the high seas and may be regarded asstemming by analogy from customs regulations, in practice they are really
only justifiable since the 1958 Convention. On the other hand, customs
zones have a long history and are recognised in customary internationallaw as well. Many states, including the UK and the USA, have enacted
legislation to enforce customs regulations over many years, outside theirterritorial waters and within certain areas, in order to suppress smuggling
which appeared to thrive when faced only with territorial limits of 3 or
4 miles.ll'
Contiguous zones, however, were limited to a maximum of 12 miles
from the-baselines from which the territorial sea is measured. So if thecoastal state already claimed a territorial sea of 12 miles, the question ofcontiguous zones would not arise.
'I4
11s

A. Gidel, 'La Mer Territoriale et la Zone Contigue: 48 HR, 1934, pp. 137, 241.
E.g. the British Hovering Acts of the eighteenth and nineteenth centuries. See O'Connell,

International Law of the Sea, vol. 11, pp. 1034-8, and the similar US legislation, ibid.,
pp. 1038 ff.

5I7

T H E LAW O F T H E S E AThis limitation, plus the restriction ofjurisdiction to customs, sanitaryand immigration matters, is the reason for the decline in the relevance ofcontiguous zones in international affairs in recent years. Under article 33of the 1982 Convention, however, a coastal state may claim a contiguouszone (for the same purpose as the 1958 provisions) up to 24 nautical
miles from the baselines. In view of the accepted 12 miles territorial sea
limit, such an extension was required in order to preserve the concept.
One crucial difference is that while under the 1958 system the contiguouszone was part of the high seas, under the 1982 Convention it would form
part of the exclusive economic zone c ~ r n p l e x . "This~ will clearly have an
impact upon the nature of the zone.
The exclusive economic zone''

This zone has developed out of earlier, more tentative claims, particularly
relating to fishing zone^,"^ and as a result of developments in the negotiating processes leading to the 1982 C o n ~ e n t i o n . "It~ marks a compromise
between those states seeking a 200-mile territorial sea and those wishinga more restricted system of coastal state power.
One of the major reasons for the call for a 200-mile exclusive economic zone has been the controversy over fishing zones. The 1958 Geneva
Convention on the Territorial Sea did not reach agreement on the creation of fishing zones and article 24 of the Convention does not give
exclusive fishing rights in the contiguous zone. However, increasing numbers of states have claimed fishing zones of widely varying widths. The
European Fisheries Convention, 1964, which was implemented in the
UK by the Fishing Limits Act 1964, provided that the coastal state has
See article 55,which states that the exclusive economic zone is 'an area beyond andadjacent to the territorial seas: The notice issued by the Hydrographic Department of
the Royal Navy on 1 January 2002 shows that seventy-two states or territories claim acontiguous zone: see UKMIL, 72 BYIL, 2001, pp. 634-9.
l7 See e.g. Brown, International Law oftke Sea, vol. I, chapters 10 and 11; Churchill and Lowe,
Law of the Sea, chapter 9; D. J. Attard, The Excltlsive Econotrlic Zone in Irtternational Law,
Oxford, 1986; O'Connell, Interrtatio~~alLaiv of the Sea, vol. I, chapter 15; Oppenheirn's
Internatiortal Latv, p. 782, and Nguyen Quoc Dinh et al., DroitIrtterrtatiorlalPublic, p. 11 75.
See also F. Orrego Vicuna, 'La Zone Economique Exclusive: 199 HR, 1986 IV, p. 9; Orrego
I'icufia, The Exclusive Econoritic Zone, Regime artd Legal Nature urtder Irtternational Latv,
Cambridge, 1989; B. Kwiatowska, The200~MileExclusiveEconornicZone
in t l ~ e N e Law~ v ofthe Sea, Dordrecht, 1989; R. W. Smith, Exclusive Economic Zone Claims. An Analysis andPrimary Documents, Dordrecht, 1986, and F. Rigaldies, 'La Zone Economique Exclusive
dans la Pratique des Etats', Canadian YIL, 1997, p. 3.
1 1 8 O'Coilnell, International Law of the Sea, vol. I. chapter 14.
""bid., pp, 559 ff.

"6

518

I N T E R N A T I O N A L LAW

the exclusive right to fish and exclusive jurisdiction in matters of fisheries in a 6-mile belt from the baseline of the territorial sea; while within
the belt between 6 and 12 miles from the baseline, other parties to theConvention have the right to fish, provided they had habitually fishedin that belt between January 1953 and December 1962. This was an attempt to reconcile the interests of the coastal state with those of otherstates who could prove customary fishing operations in the relevant area.
In view of the practice of many states in accepting at one time or another a 12-mile exclusive fishing zone, either for themselves or for someother states, it seems clear that there has already emerged an international
rule to that effect. Indeed, the International Court in the Fisheries Jurisdiction cases120 stated that the concept of the fishing zone, the area inwhich a state may claim exclusive jurisdiction independently of its territorial sea for this purpose, had crystallised as customary law in recent
years and especially since the 1960 Geneva Conference, and that 'the extension of that fishing zone up to a twelve mile limit from the baselines
appears now to be generally accepted'. That much is clear, but the question was whether international law recognised such a zone in excess of
12 miles.
In 1972, concerned at the proposals regarding the long-term effectsof the depletion of fishing stocks around her coasts, Iceland proclaimed
unilaterally a 50-mile exclusive fishing zone. The UK and the Federal Republic of Germany referred the issue to the ICJ and specifically requested
the Court to decide whether or not Iceland's claim was contrary to international law.
The Court did not answer that question, but rather held that Iceland's
fishing regulations extending the zone were not binding upon the UK andWest Germany, since they had in no way acquiesced in them. However, by
implication the ICJ based its judgment on the fact that there did not exist
any rule of international law permitting the establishment of a 50-milefishing zone. Similarly, it appeared that there was no rule prohibiting
claims beyond 12 miles and that the validity of such claims would depend
upon all relevant facts of the case and the degree of recognition by otherstates. The Court emphasised instead the notion of preferential rights,
which it regarded as aprinciple of customary international law. Such rights
arose where the coastal state was 'in a situation of special dependence oncoastal fisheries'.12' However, this concept was overtaken by developments''I

ICJ Reports, 1974, pp. 8, 175; 55 ILR, p. 238.
ICJ Reports, 1974, pp. 23-9; 55 ILR, p. 258.

T H E LAW O F T H E S E A

5l9

at the UN Conference and the 1982 Convention. Article 55 of 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 under the Convention.
Under article 56, the coastal state in the economic zone has inter alia:(a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living122or non-living,of the waters superjacent to the seabed and of the seabed and its subsoil
and ~ v i t hregard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water,
currents and winds;(b) jurisdiction with regard to (i) the architecture and use of artificial
islands, installations and structure^;^" (ii) marine scientific r e ~ e a r c h ; " ~(iii) the protection and preservation of the marine environment.12'

Article 55 provides that the zone starts from the outer limit of theterritorial sea, but by article 57 shall not extend beyond 200 nautical
miles from the baselines from which the breadth of the territorial sea ismeasured. Accordingly, in reality, the zone itself would be no more than
188 nautical miles where the territorial sea was 12 nautical miles, butrather more where the territorial sea of the coastal state was less than 12
miles. Where the relevant waters between neighouring states are less than
400 miles, delimitation becomes necessary.126Islands generate economic
zones, unless they consist of no more than rocks which cannot sustain
human h a b i t a t i ~ n . ' ~ ~Article 58 lays down the rights and duties of other states in the exclusive
economic zone. These are basically the high seas freedom of navigation,
overflight and laying of submarine cables and pipelines. It is also provided that in exercising their rights and performing their duties, statesshould have due regard to the rights, duties and laws of the coastal state.
In cases of conflict over the attribution of rights and jurisdiction in thezone, the resolution is to be on the basis of equity and in the light of all
the relevant circumstance^.^" Article 60(2) provides that in the exclusive
122 See also articles 61-9.

12' See also article 60.
I2"eefurther Part XI11 of the Convention and see Churchill and Lowe, Law of the Sea,
chapter 15.
12' See further Part XI1 of the Convention and see Churchill and Lowe, Law of the Sea,
chapter 14.
See further below, p. 527.
Article 121(3).See also Qatar r.Bahrain, ICJ Reports, 2001, para. 185 and above, p. 501.
12' Article 59.

520

I N T E R N A T I O N A L LAW

economic zone, the coastal state has jurisdiction to apply customs law andregulations in respect of artificial islands, installations and structures. The
International Tribunal for the Law of the Sea took the view in M / V Saiga(No. 2) (Admissibility and Merits) that a coastal state was not competent
to apply its customs law in respect of other parts of the economic zone.'29
Accordingly, by applying its customs law to a customs radius which included parts of the economic zone, Guinea had acted contrary to the Lawof the Sea onv vent ion.'^^A wide variety of states have in the last two decades claimed exclusive
economic zones of 200 miles.l3l A number of states that have not madesuch a claim have proclaimed fishing zones.'32 It would appear that suchis the number and distribution of states claiming economic zones, thatthe existence of the exclusive economic zone as a rule of customary law isfirmly established. This is underlined by the comment of the International
Court of Justice in the LibyalMalta Continental Shelf case133that 'theinstitution of the exclusive economic zone.. . is shown by the practice ofstates to have become a part of customary law:134
In addition to such zones, some other zones have been announced bystates over areas of the seas. Canada has, for example, claimed a 100-milewide zone along her Arctic coastline as a special, pollution-free zone.'"'Certain states have also asserted rights over what have been termed'" 120 ILR, pp. 143, 190.

130 Ibid., p. 192.
The Hydrographic Department of the Royal Navy noted that as of 1 January 2002, 115
states and territories had proclaimed 200-mile economic zones: see UKMIL, 72 BYIL,
2001, pp. 634-9. No state has appeared to claiin an economic zone of a different width.
See also the US Declaration of an exclusive economic zone in March 1983, which did
not, however, assert a right of jurisdiction over marine scientific research over the zone,
22 ILM, 1983, pp. 461 ff. On 22 September 1992, eight North Sea littoral states and theEuropean Coinmission adopted a Ministerial Declaration on the Coordinated Extensionof Jurisdiction in the North Sea in which it was agreed that these states would establish exclusive economic zones if they had not already done so, UKMIL, 63 BYIL, 1992,
p. 755.
13' The Hydrographic Department ofthe RoyalNavynoted that as of 1 January 2002, fifty-hvo
states and territories had proclaimed fishery zones of varying hreadths up to 200 miles:
see UKMIL, 72 AYIL, 2001, pp. 634-9.
13' ICJ Reports, 1985, p. 13; 81 ILR, p. 238.
ICJ Reports, 1985, p. 33; 81 ILR, p. 265. See also the Ttlnisicl/Libyacase, ICJ Reports, 1982,
pp. 18, 74; 67 ILR, pp. 4, 67.
See O'Connell, International Laiv ofthe Sea, vol. 11, pp. 1022-5. See also the Canadian
Arctic Water Pollution Preveiltion Act 1970. The US has objected to this jurisdiction:
see e.g. Keesing'x Contenzpornry Archives, pp. 23961 and 24129. The Canadian claim wasreiterated in September 1985, ibid., p. 33984.

T H E L AW O F T H E S E A

521

security or neutrality zones,'" but these have never been particularly
well received and are rare.
In an unusual arrangement, pursuant to a US-USSR Maritime Boundary Agreement of 1 June 1990, it was provided that each party would
exercise sovereign rights and jurisdiction derived from the exclusive economic zone jurisdiction of the other party in a 'special area' on the otherparty's side of the maritime boundary in order to ensure that all areas
within 200 miles of either party's coast would fall within the resource jurisdiction of one party or the other. It would appear that jurisdiction overthree special areas within the USSR's 200-mile economiczone and one special area within the US'S 200-mile economic zone were so t r a n ~ f e r r e d . ' ~ ~The continental shelf'"

The continental shelf is a geological expression referring to the ledges thatproject from the continental landmass into the seas and which are covered
with only a relatively shallow layer of water (some 150-200 metres) andwhich eventually fall away into the ocean depths (some thousands ofmetres deep). These ledges or shelves take up some 7 to 8 per cent of thetotal area of ocean and their extent varies considerably from place to place.
Off the western coast of the United States, for instance, it is less than fivemiles wide, while, on the other hand, the whole of the underwater area of
the North Sea and Persian Gulf consists of shelf.
The vital fact about the continental shelves is that they are rich in oil
and gas resources and quite often are host to extensive fishing grounds.
O'Coilnell, International Laiv o f the Sea, vol. I, p. 578, note 95 regarding North Korea's
proclamation of a 50-mile security zone in 1977. See also Cumulative DUSPIL 1981-8,
vol. 11, pp. 1750 ff. detailing US practice objecting to peacetime security or military 7ones.
Note also the establishment of the 'exclusion zone' around the Falkland Islands in 1982:
see 22 HC Deb., cols. 296-7,28 April 1982. See e.g. R. P. Barston and P. M'. Birnie, 'The
Falkland IslandsiIslas Malvinas Conflict. A Question of Zones', 7 Marine Policy, 1983,
p. 14.
13' 84 AJIL, 1990, pp. 885-7.
13' See e.g. Brown, International Law of the Sea, vol. I, chapters 10 and 11; O'Connell, Interrlational Law of the Sen, vol. I, chapter 13; Churchill and Lowe, Law of the Sea, chapter 8;
2. J. Slouka, Irzterrzutio~zalC~rstornand the Corztirzerztal Shelf; The Hague, 1968; C. Vallee,
Le Plateau Continental darzs le Droit Irlterl~ationalPosits Paris, 1971; V. ~MarottaRangel,'Le Plateau Continental dans la Convention de 1982 sur le Droit de la Mer: 194 HR,
1985 17, p. 269, and H. Lauterpacht, 'Sovereignty over Submarine Areas', 27 BYIL, 1950,
p. 376. See also Oppenheinz's International Law, p. 764, and Nguyen Quoc Dinh et al.,Droit Internatioilal Prlblic, p. 1183.

522

I N T E R N A T I O N A L LAW

This stimulated a round of appropriations by coastal states in the years
following the Second World War, which gradually altered the legal statusof the continental shelf from being part of the high seas and available for
exploitation by all states until its current recognition as exclusive to thecoastal state.
The first move in this direction, and the one that led to a series of similar and more extensive claims, was the Truman Proclamation of 1 9 4 5 . ' ~ ~This pointed to the technological capacity to exploit the riches of the shelfand the need to establish a recognised jurisdiction over such resources,and declared that the coastal state was entitled to such jurisdiction fora number of reasons: first, because utilisation or conservation of the resources of the subsoil and seabed of the continental shelf depended upon
co-operation from the shore; secondly, because the shelf itself could be
regarded as an extension of the land mass of the coastal state, and its
resources were often merely an extension into the sea of deposits lying
within the territory; and finally, because the coastal state, for reasons of
security, was profoundly interested in activities off its shores which would
be necessary to utilise the resources of the shelf.
Accordingly, the US government proclaimed that it regarded the 'natural resources of the subsoil and seabed of the continental shelfbeneath thehigh seas but contiguous to the coasts of the United States as appertaining
to the United States, subject to its jurisdiction and control'. However, thiswould in no way affect the status of the waters above the continental shelf
as high seas.
This proclamation precipitated a whole series of claims by states totheir continental shelves, some in similar terms to the US assertions,and others in substantially wider terms. Argentina and El Salvador, forexample, claimed not only the shelf but also the waters above and theairspace. Chile and Peru, having no continental shelf to speak of, claimed
sovereignty over the seabed, subsoil and waters around their coasts to alimit of 200 miles, although this occasioned vigorous protests by manystates.l4' The problems were discussed over many years, leading to the1958 Geneva Convention on the Continental shelf.141

140

'I

Whiteman, Digest, vol. IV, p. 756.
Ibid., pi?. 794-9 and see also Oppenheirn's International Law, pp. 768-9.
Note that in the Abu Dllabi case, the arbitrator declared that the doctrine of the continental shelf in 1951 was not yet a rule of international law, 18 ILR, p. 144. See also to
the same effect (with regard to 1949), Reference Re: The Seabed and Subsoil of the Continental ShelfOffjhore Newfoundland, 5 DLR (46), p. 385 per Supreme Court of Canada(1984).

T H E LAW O F T H E S E A

523

In the North Sea Continental ~ h e l f c a s e s , the' ~ ~Court noted that:the rights of the coastal state in respect of the area of continental shelf that
constitutes a natural prolongation of its land territory into and under thesea exist ipso fucto and ab initio, by virtue of its sovereignty over the land,
and as an extension of it in a n exercise of sovereign rights for the purposeof exploring the seabed and exploiting its natural resources. In short there
is here an inherent right.

The development of the concept of the exclusive economic zone has tosome extent confused the issue, since under article 56 ofthe 1982 Convention the coastal state has sovereign rights over all the natural resources of
its exclusive economic zone, including the seabed r e ~ o u r c e s . Accord'~~ingly, states possess two sources of rights with regard to the seabed,'44
although claims with regard to the economic zone, in contrast to the continental shelf, need to be specifically made. It is also possible, as will beseen, that the geographical extent of the shelf may be different from thatof the 200-mile economic zone.
Definition
Article 1 of the 1958 Convention on the Continental Shelf defined theshelf in terms of its exploitability rather than relying upon the accepted
geological definition, noting that the expression referred to the seabedand subsoil of the submarine areas adjacent to the coast but outside theterritorial sea to a depth of 200 metres or 'beyond that limit to where thedepth of the superjacent waters admits of the exploitation of the natural
resources of the said areas'.
This provision caused problems, since developing technology rapidly
reached a position to extract resources to a much greater depth than
200 metres, and this meant that the outer limits of the shelf, subject to thejurisdiction of the coastal state, were consequently very unclear. Article
1 was, however, regarded as reflecting customary law by the Court in
the North Sea Continental shelfcase.14' It is also important to note thatthe basis of title to continental shelf is now accepted as the geographical'" ICJ Reports, 1969, pp. 3,22; 41 ILR, pp. 29,51.
'44

14'

l"
See above, p. 517.
Note that the International Court In the Llbya/lMalta Contznentul Shelfcase, ICJ Reports,
1985, pp. 13,33;81 ILR, pp. 238,265, stated that the two concepts were 'l~nkedtogether
in modern law:
ICJ Reports, 1969, pp. 3, 39; 41 ILR, pp. 29, 68.

j24

I N T E R N A T I O N A L LAW

criterion, and not reliance upon, for example, occupation or effective
control. The Court emphasised this and declared that:
The submarine areas concerned may be deemed to be actually part of theterritory over which the coastal state already has dominion in the sense that
although covered with water, they are a prolongation or continuation ofthat territory, an extension of it under the sea.'46

This approach has, however, been somewhat modified. Article 76(1) of
the 1982 Convention provides as to the outer limit of the continental shelfthat:[tlhe continental shelf of a coastal state comprises the seabed and subsoilof the submarine areas that extend beyond its territorial sea throughout thenatural prolongation ofits land territory to the outer edge ofthe continental
margin, or to a distance of 200 nautical miles from the baselines fromwhich the breadth of the territorial sea is measured where the outer edgeof continental margin does not extend up to that d i ~ t a n c e . ' ~ 'Thus, an arbitrary, legal and non-geographical definition is provided.
Where the continental margin actually extends beyond 200 miles, geographical factors are to be taken into account in establishing the limit,
which in any event shall not exceed either 350 miles from the baselines or
100 miles from the 2,500-metre i ~ 0 b a t h . Wherel ~ ~ the shelf does not extend as far as 200 miles from the coast, natural prolongation is complemented as a guiding principle by that of distance.149Not surprisingly, thiscomplex formulation has caused
and, in an attempt to provide a mechanism to resolve problems, the Convention established a Commission on the Limits of the Continental Shelf, consisting of twenty-one
experts elected by the states parties. Article 4 ofAnnex I1 to the Convention
ICJ Reports, 1969, p. 31; 4 1 ILR, p. 60.
See article 7 6 ( 3 ) for a definition of the continental margin. See also D. N. Hutchinson,'The Seaward Limit to Continental Shelf', 56 BYIL, 1985, p. 133, and Brown, vol. I,
p. 140.
14' Article 7 6 ( 4 ) , ( j ) , ( 6 ) , ( 7 ) ,( 8 ) and ( 9 ) .See also Annex I1 to the Final Act concerning thespecial situation for a state where the average distance at which the 200-metre isobath
occurs is not more than 20 nautical miles and the greater proportion of the sedimentaryrock of the continental margin lies beneath the rise.
149 See the Libya/Malta Cotitinental Shelf case, ICJ Reports, 1985, pp. 13, 33-4; 81 ILR,
pp. 238, 265-6. See also the TunisialLibya case, ICT Reports, 1982, pp. 18, 61; 67 ILR,
pp. 4 , 54 and the Gulf of Maine case, ICJ Reports, 1984, pp. 246, 277; 7 1 ILR, pp. 57,
14'

14'

104.
'jO

See e.g. Churchill and Lowe, Law of the Sea, p. 149, and Nguyen Quoc Din11 et al., Droit
International Public, p. 1187.

T H E LAW O F T H E S E A

j25

provides that a coastal state intending to establish the outer limits to its
continental shelf beyond 200 nautical miles is obliged to submit particulars of such limits to the Commission along with supporting scientificand technical data as soon as possible but in any case within ten years of
the entry into force of the Convention for that state. The limits ofthe shelfestablished by a coastal state on the basis of these recommendations are
final and binding.'jl
Islands generate continental shelves, unless they consist of no morethan rocks which cannot sustain human hi1bitati0n.l~~T h e rights and duties of the coastal state153
The coastal state may exercise 'sovereign rights' over the continental shelf
for the purposes of exploring it and exploiting its natural resources under article 77 of the 1982 Convention. Such rights are exclusive in thatno other state may undertake such activities without the express consent
of the coastal state. These sovereign rights (and thus not territorial title
as such since the Convention does not talk in terms of 'sovereignty') do
not depend upon occupation or express proclamation.'" The Trumanconcept of resources, which referred only to mineral resources, has been
extended to include organisms belonging to the sedentary species.'55
However, this vague description did lead to disputes between France andBrazil over lobster, and between the USA and Japan over the Alaskan King
Crab in the early 1960s.'j6 The sovereign rights recognised as part of thecontinental shelf regime specifically relate to natural resources, so that,for example, wrecks lying on the shelf are not included.'j7
Is'

Article 76(8). See also http://wwcv.un,org/Depts/los/clcsnew/clcsl~ome.htm.
In
December 2001, the Russian Federation made su~bmissionsto the Comnlission: see

http://www.un.org/Depts/los/clcs~new/clcshon~e.htn~.

'" Article 121(3).See also Qatar v. Bahrain, ICJ Reports, 2001, para. 185, and above, p. 501.
Oppenheim's International Law, p. 773 and Churchill and Lowe, Law of the Sea,
p. 151.
l S 4 See also article 2 of the Continental Shelf Convention, 1958.
Is'
See article 77(4) of the 1982 Convention and article 2(4) of the 1958 Continental Shelf
Convention.
l S 6 See e.g. O'Connell, Ir~ternationalLaw of the Sea, vol. I, pp. 501-2.
l S 7 See e.g. Churchill and Lowe, Latv o f the Sea, 17. 152; E. Boesten, Archaeological and/or
Historical Valtlable Shipwrecks in International Waters, The Hague, 2002, and C. Forrest,'An International Perspective on Sunken State Vessels as Underwater Cultural Heritage:
34 Ocean Development and Intei.nationa1 Law, 2003, p. 41. See also articles 149 (protectionof cultural objects found in the International Seabed Area) and 303 (wrecks and the rights
of coastal states in the contiguous zone).
"' See526

I N T E R N A T I O N A L LAW

The Convention expressly states that the rights of the coastal state do
not affect the status of the superjacent waters as high seas, or that of theairspace above the waters.''' This is stressed in succeeding articles whichnote that, subject to its right to take reasonable measures for explorationand exploitation of the continental shelf, the coastal state may not impede
the laying or maintenance of cables or pipelines on the shelf. In addition,such exploration and exploitation must not result in any unjustifiableinterference with navigation, fishing or the conservation of the living
resources of the sea.lS9
The coastal state may, under article 80 of the 1982 on vent ion,"^construct and maintain installations and other devices necessary for exploration on the continental shelf and is entitled to establish safety zones
around such installations to a limit of 500 metres, which must be respected by ships of all nationalities. Within such zones, the state may takesuch measures as are necessary for their protection. But although under
the jurisdiction of the coastal state, these installations are not to be considered as islands. This means that they have no territorial sea of theirown and their presence in no way affects the delimitation of the territorial waters of the coastal state. Such provisions are, of course, extremely
important when considering the status of oil rigs situated, for example,
in the North Sea. To treat them as islands for legal purposes would cause
difficulties.lb1
Where the continental shelf of a state extends beyond 200 miles, article 82 of the 1982 Convention provides that the coastal state must makepayments or contributions in kind in respect of the exploitation of the
non-living resources of the continental shelf beyond the 200-mile limit.
The payments are to be made annually after the first five years of production at the site in question on a sliding scale up to the twelfth year, after
which they are to remain at 7 per cent. These payments and contributions are to be made to the International Seabed Authority, which shall
distribute them amongst state parties on the basis of 'equitable sharing
Article 78 ofthe 1982 Convention and article 3 ofthe 1958 Continental Shelf Convention.
Note that the reference to 'high seas' in the latter is omitted in the former for reasons
related to the new concept of the exclusive economic zone.
15' Articles 78 and 79 of the 1982 Convention and articles 4 and 5 of the 1958 Continental
Shelf Convention.
160 Applying rrlutatis vnntandis article 6 0 , which deals with the construction of artificial
islands, installations and structures in the exclusive economic zone. See also article 5 of
the 1958 Continental Shelf Convention.
16' See also N. Papadakis, The International Legal Regime of Artificial Islands, Leiden,
1977.
'53

T H E LAW O F T H E S E A

527

criteria, taking into account the interests and needs of developing states
particularly the least developed and the landlocked among them:16'

Maritime delimitation16'
The delimitation of the territorial sea between adjacent or opposite statesis accomplished on the basis of the 'equidistancelspecial circumstances'
rule contained in article 12 of the 1958 Convention on the Territorial Sea
and article 15 ofthe 1982 onv vent ion,'^^ while there is a close relationshipbetween the delimitation of the continental shelf and the delimitation of
the exclusive economic zone respectively between adjacent or opposite
states.165
The question ofthe delimitation ofthe continental shelf has occasioned
considerable debate and practice from the 1958 and 1982 Conventions
to case-law and a variety of treaties. While delimitation is in principle anaspect ofterritorial sovereignty, where other states are involved, agreement
is required. Most difficulties in this area are indeed resolved by agreement
and the guiding principle of international law now is that disputes overcontinental shelf boundaries are to be settled by agreement in accordancewith equitable principles.lh6
Note also that by article 82(3) a developing state which is a net importer of the mineral
resource in question is exempt from such payments and contributions.
Energy and
See Churchill and Lowe, Law of the Sea, chapter 10; E. D. Brown, S~LI-Bed
Mineral Resotlrces ar~dthe Laiv of the Sea, London, 1984-6, ~ o l sI. and 111; M. D. Evans,
Relev~lntCircumstances and Maritime Delin~itation,Oxford, 1989, and P. Weil, The Law
ofMaritiirre Delimitation -Reflections, Cambridge, 1989. See also International Maritime
Boundaries (eds. J. I. Charnep and L. M. Alexander), T47ashington,vols. 1-111, 1993-8, andibid. (eds. J. I. Charney and R. M! Smith), vol. IV, 2002; P. Cahier, 'Les Sources du Droit
Relatif a la Delimitation du Plateau Continental: Mtlanges Virally,1991, p. 175; L. D. &I.
Nelson, 'The Roles of Equity in the Delimitation of Maritime Boundaries', 84 AJIL, 1990,
p. 837; B. Kwiatowska, 'Judge Shigeru Oda's Opinions in Law-of-the-Sea Cases: Equitable
Maritime Boundary Delimitation', 36 German YIL, 1993, p. 225; H. Thirlway, 'The Law
and Procedure of the International Court of J~lstice1960-89 (Part Five)', 64 BYIL, 1993,
p. 1; J. I. Charney, 'Progress in International Maritime Boundary Delimitation Law', 88
AJIL, 1994, p. 227; Charney, 'Central East Asian Maritime Boundaries and the Law of
the Sea: 89 AJIL, 1995, p. 724; Oppenheim's International Law, p. 776, and Npuyen Quoc
Public, pp. 1178 and 1187 ff.
Dinh et al., Droit I~lter~lational
164 See above, p. 506.
'" See the Libya/Malta Contirlental Shelfcase, ICJ Reports, 1985, pp. 13, 33; 81 ILR, p. 239
and Qatar v. Bahrain, ICJ Reports, 2001, para. 226.
166 The International Court noted in the Gulf of Maine case, ICJ Reports, 1984, pp. 246,
299; 77 ILR, pp. 57, 126, that 'no maritime delimitation between states with opposite or
adjacent coasts may be effected unilaterally by one of those states. Such delimitation must
16'

528

I N T E R N A T I O N A L LAW

Article 6 of the Continental Shelf Convention, 1958 declared that in
the absence of agreement and unless another boundary line was justified by special circumstances, the boundary should be determined 'by
application of the principle of equidistance from the nearest points ofthe baselines from which the breadth of the territorial sea of each state ismeasured', that is to say by the introduction of the equidistance or medianline which would operate in relation to the sinuosities of the particular
coastlines.
This provision was considered in the North Sea Continental Shelf
cases'67 between the Federal Republic of Germany on the one side andHolland and Denmark on the other. The problem was that the application of the equidistance principle of article 6 would give Germany onlya small share of the North Sea continental shelf, in view of its concave
northern shoreline between Holland and Denmark. The question arose as
to whether the article was binding upon the Federal Republic of Germany
at all, since it had not ratified the 1958 Continental Shelf Convention.
The Court held that the principles enumerated in article 6 did notconstitute rules of international customary law and therefore Germany
was not bound by them.168The Court declared that the relevant rule wasthat:
delimitation is to be effected by agreement in accordance with equitableprinciples, and taking account of all the relevant circumstances, in sucha way as to leave as much as possible to each party all those parts of thecontinental shelf that constitute a natural prolongation of its land territory
into and under the sea, without encroachment on the natural prolongationof the land territorv of the others.16y

The Court, therefore, took the view that delimitation was based upon aconsideration and weighing of relevant factors in order to produce anequitable result. Included amongst the range of factors was the element ofa reasonable degree ofproportionality between the lengths of the coastline
and the extent of the continental shelf."'
he sought and effected by imeans of an agreement, following negotiations conducted ingood faith and with the genuine intention of achieving a positive result. Where, however,such agreement cannot be achieved, delimitation should be effected by recourse to a third
party possessing the necessary competence.'
16* See above, chapter 3, p. 73.
16' ICJ Reports, 1969, p. 3; 41 ILR, p. 29.
16' ICJ Reports, 1969, pp. 3, 53; 41 ILR, pp. 29, 83.
170 ICJ Reports, 1969, pp. 3, 52; 41 ILR, pp. 29, 82.

T H E LAW O F T H E S E A

529

In the Anglo-French Continental Shelf~ase,'~'both states were parties
to the 1958 Convention, so that article 6 applied.li2 It was held that
article 6 contained one overall rule, 'a combined equidistance-special
circumstances rule', which in effect:
gives particular expression to a general n o r m that, failing agreement, theboundary between states abutting o n the same continental shelf is to be
determined o n equitable principles.'7'

The choice of method of delimitation, whether equidistance or any othermethod, depended upon the pertinent circumstances ofthe case. The fundamental norm under both customary law and the 1958 Convention wasthat the delimitation had to be in accordance with equitable principles.174
The Court took into account 'special circumstances' in relation to thesituation of the Channel Islands which justified a delimitation other thanthe median line proposed by the UK.'~'In addition, the situation of the
Scilly Isles was considered and they were given only 'half-effect' in thedelimitation in the Atlantic area since
what equity calls for is an appropriate abatement of the disproportionate
effects of a considerable projection o n the Atlantic continental shelf of asorne~vhatattenuated projection of the coast of the United Kingdo~n.~'"In the Tunisia/Libya Continental S h e l f ~ a s e ,the
' ~ ~Court, deciding on
the basis of custom as neither state was a party to the 1958 Convention,emphasised that 'the satisfaction of equitable principles is, in the delimitation process, of cardinal importance'. The concept of natural prolongation
was of some importance depending upon the circumstances, but not on
the same plane as the satisfaction of equitable principles.li8 The Court
Cmnd 7438 (1978); 54 ILR, p. 6. See also D. It7. Bowett, 'The Arbitration between the
United Kingdom and France Concerning the Continental Shelf Boundary in the English
Channel of South-JVestern Approaches: 49 BYIL, 1978, p. 1.
17' Although subject to a French reservation regarding the Ray of Granville to which the UK
had ohjected, Cmnd 7438, p. 50; 54 ILR, p. 57.
173 Cmnd 7438, p. 48; 54 ILR, p. 55.
17"mnd7438, pp. 59-60; 54 ILR, p. 66.
17' Cmnd 7438, p. 94; 54 ILR, p. 101. This arose because ofthe presence of the British islands
close to the French coast, which if given full effect would substantially reduce the Frenchcontinental shelf. This was prima facie a circumstance creative of inequity, ibid.
176 Cmnd 7438, pp. 116-17; 54 ILR, p. 123.
177 ICJ Reports, 1982, p. 18; 67 ILR, p. 4. See also L. L. Herman, 'The Court Giveth and the
Court Taketh Away: 33 ICLQ, 1984, p. 825.
17* ICJ Reports, 1982, p. 47; 67 ILR, p. 40. See also ICJ Reports, 1982, p. 60; 67 ILR, p. 53.
"I

530

I N T E R N A T I O N A L LAW

also employed the 'half-effect' principle for the Kerkennah ~slands,"~andemphasised that each continental shelf dispute had to be considered on its
own merits having regard to its peculiar circumstances, while no attemptshould be made to 'overconceptualise the application of the principles
and rules relating to the continental shelf'.lsOThe view of the Court that'the principles are subordinate to the goal' and that '[tlhe principles tobe indicated. . .have to be selected according to their appropriateness forreaching an equitable result"" led to criticism that the carefully drawn
restriction on equity in the North Sea Continental ShelfcasesIx2had been
overturned and the element of predictability minimised. The dangers ofan equitable solution based upon subjective assessments of the facts, regardless of the law of delimitation, were pointed out by Judge Gros in his
Dissenting 0pinion.ls3
The Court in the North Sea Continental ~ h e l f c a s e s in
' ~ ~general discussed the relevance of the use of equitable principles in the context ofthe difficulty of applying the equidistance rule in specific geographicalsituations where inequity might result. In such a case, recourse may be
had to equitable principles, provided a reasonable result was reached.
In the Anglo-French Continental shelfcase,18' it was emphasised that:the appropriateness ofthe equidistance method o r any other method for the
purpose of effecting a n equitable delimitation is a function o r reflectionof the geographical a n d other relevant circumstances of each particularcase.

The methodological aspect here is particularly important, based as it isupon the requisite geographical framework.
A rigorous approach is rather less apparent in the Tunisia/Libya case,but the emphasis upon the solution, perhaps to the detriment of themethod of reaching it, was reflected in recent cases. Indeed, article 83 of
the 1982 Convention simply provides that delimitation 'shall be effectedby agreement on the basis of international law.. . in order to achieve an
equitable solution'.
ICJ Reports, 1982, p. 89; 67 ILR, p. 82. This was specified in far less constrained terms
than in the Anglo-French Continental Shelfcase, Cmnd 7438, pp. 116-17; 54 ILR, p. 123.
See e.g. Judge Gros' Dissenting Opinion, ICJ Reports, 1982, pp. 18, 150; 67 ILR, p. 143.
lX0 ICJ Reports, 1982, p. 92; 67 ILR, p. 85.
lX1 ICJ Reports, 1982, p. 59; 67 ILR, p. 52.
182 ICJ Reports, 1969, pp. 3, 49-50; 41 ILR, pp. 29, 79.
18' ICJ Reports, 1982, pp. 18, 153; 67 ILR, pp. 4, 146.
184 ICJ Reports, 1969, pp. 3, 35-6; 41 ILR, pp. 29, 64.
lX5 Cmnd 7438, p. 59; 54 ILR, p. 66.

T H E LAW O F T H E S E A

53l

In the Gulf of Maine case,'86 which dealt with the delimitation ofboth the continental shelf and fisheries zones of Canada and the Unitedstates,18' the Chamber of the ICJ produced two principles reflecting whatgeneral international law prescribes in every maritime delimitation. First,
there could be no unilateral delimitations. Delimitations had to be sought
and effected by agreement between the parties or, if necessary, with theaid of third parties. Secondly, it held that 'delimitation is to be effected by
the application of equitable criteria and by the use of practical methods
capable of ensuring, with regard to the geographic configuration of thearea and other relevant circumstances, an equitable result:'88 The Court
took as its starting point the criterion of the equal division of the areasof convergence and overlapping of the maritime projections of the coastlines ofthe states concerned, a criterion regarded as intrinsically equitable.
This, however, had to be combined with the appropriate auxiliary criteria
in the light of the relevant circumstances of the area itself. As regards thepractical methods necessary to give effect to the above criteria, like thecriteria themselves these had to be based upon geography and the suitability for the delimitation of both the seabed and the superjacent waters.
Thus, it was concluded, geometrical methods would serve.189It will be
noted that the basic rule for delimitation of the continental shelf is thesame as that for the exclusive economic zone,'" but the same boundary
need not necessarily result.'" The Chamber in the Gulf of Maine caseindeed strongly emphasised 'the unprecedented aspect of the case whichlends it its special character', in that a single line delimiting both the shelfand fisheries zone was called for by the parties.
Criteria found equitable with regard to a continental shelf delimitationneed not necessarily possess the same properties with regard to a dual de1imitati0n.l~~
The above principles were reflected in the arbitral award in
ICJ Reports, 1984, p. 246; 71 ILR, p. 74. See also J. Schneider, 'The Gulf of Maine Case:
The Nature of an Equitable Result: 79 AJIL, 1985, p. 539.
IS'
A 'single maritime boundary' was requested by the parties, ICT Reports, 1984, pp. 246,
253; 71 ILR, 17. 80. See also above p. 527.
ICJ Reports, 1984, pp. 299-300; 71 ILR, pp. 126-7. This was regarded as the fundamental
norm ofcustomary international law governing maritime delimitation, ICJ Reports, 1984,
p. 300.
lSY ICI Reports, 1984, pp. 328-9; 71 ILR, p. 155. Note that the Chamber gave 'half-effect' to
Seal Island for reasons of equity, ICT Reports, 1984, p. 337; 71 ILR, p. 164.
lY0 Article 74 of the 1982 Convention.
See e.g. the Australia-Papua New Guinea Maritime Boundaries Treaty of 1978, cited in
Churchill and Lowe, Law of the Sea, p. 160.
ICJ Reports, 1984, pp. 246,326; 71 ILR, p. 153.
lS6

'"
'"

532

I N T E R N A T I O N A L LAW

the Guinea/Guinea-Bissau Maritime Delimitation case in 1 9 8 5 . ' ~The
~ Tribunal emphasised that the aim of any delimitation process was to achieve
an equitable solution having regard to the relevant circumstance^.^^^ In
the instant case, the concepts of natural prolongation and economic factors were in the circumstances of little assistance.lg5
In the Libya/Malta Continental Shelfcase,lg6the International Court,
in deciding the case according to customary law since Libya was not a
party to the 1958 Convention on the Continental Shelf, emphasised the
distance criterion. This arose because of the relevance of the economic
zone concept, which was now held to be part of customary law, and thefact that an economic zone could not exist without rights over the seabedand subsoil similar to those enjoyed over a continental shelf. Thus the
200-mile limit of the zone had to be taken into account with regard to
the delimitation of the continental shelf.19' The fact that the law now
permitted a state to claim a shelf of up to 200 miles from its coast, irrespective of geological characteristics, also meant that there was no reason to ascribe any role to geological or geographical factors within that
distance.lg8
Since the basis of title to the shelf up to the 200-mile limit is recognised
as the distance criterion, the Court felt that the drawing of a median line
between opposite states was the most judicious manner ofproceeding witha view to the eventual achievement of an equitable result. This provisional
step had to be tested in the light of equitable principles in the context of
the relevant circumstance^.'^^ The Court also followed the example of
the Tunisia/Libya case2'' in examining the role of proportionality and intreating it as a test of the equitableness of any line.
However, the Court did consider the comparability of coastal lengths in
the case as part of the process of reaching an equitable boundary, and used
See 25 ILM, 1986, p. 251; 77 ILR, p. 636. The tribunal consisted of Judge Lachs, President
and Judges Mbaye and Bedjaoui.
194 25 ILM, 1986, p. 289; 77 ILR, pp. 675-6.
19' 25 ILM, 1986, pp. 300-2; 77 ILR, p. 686. It should be noted that the delimitation concerneda single line delimiting the territorial waters, continental shelves and economic zones of
the respective countries.
'96 ICJ Reports, 1985, p. 13; 81 ILR, p. 239.
19' The Court emphasised that this did not mean that the concept of the continental shelf
had been absorbed by that of the economic zone, but that greater importance had to be
attributed to elements, such as distance from the coast, which are common to both, ICJ
Reports, 1985, p. 33; 81 ILR, p. 265.
Ibid.
199 ICJ Reports, 1985, p. 47; 81 ILR, p. 279.
See above, p. 529.
19''"

T H E LAW O F T H E S E A

533

the disparity of coastal lengths of the parties as a reason for adjusting themedian line so as to attribute a larger shelf area to ~ i b ~ a . The~ ' l generalgeographical context in which the islands of Malta exist as a relatively
small feature in a semi-enclosed sea was also taken into account in thiscontext.202
The Court in its analysis also referred to a variety of well-known examples of equitable principles, including abstention from refashioning
nature, non-encroachment by one party on areas appertaining to theother, respect due to all relevant circumstances and the notions that
equity did not necessarily mean equality and that there could be noquestion of distributive justice.203The Court, however, rejected Libya's
argument that a state with a greater landmass would have a greater claim
to the shelf and dismissed Malta's view that the relative economic positionof the two states was of relevance.204
In conclusion, the Court reiterated in the operative provisions of its
judgment, the following circumstances and factors that needed to be taken
into account in the case:(1) the general configuration of the coasts to the parties, their oppositeness, and their relationship to each other within the general context;(2) the disparity in the lengths of the relevant coasts of the parties and the
distance between them;(3) the need to avoid in the delimitation any excessive disproportion between the extent of the continental shelf areas appertaining to thecoastal state and the length of the relevant part of its coast, measured
in the general direction of the coastlines.20i

In the St Pierre and Miquelon case,206the Court of Arbitration emphasised that the delimitation process commenced with the identification of
the geographical context of the dispute in question and indeed pointed
out that geographical features were at the heart of d e l i m i t a t i ~ n . ~The'~ICJ Reports, 1985, pp. 48-50; 81 ILR, p. 280.
ICJ Reports, 1985, p. 52; 81 ILR, p. 284.
'03 ICJ Reports, 1985, pp. 39-40; 81 ILR, p. 271.
'04 ICJ Reports, 1985, pp. 40-1; 81 ILR, p. 272. The Court also noted that an equitableboundary between the parties had in the light of the general geographical situation to be
south of a notional median line between Libya and Sicily, ICJ Reports, 1985, p. 51; 81
ILR, p. 283.
'05 ICJ Reports, 1985, pp. 56-8; 81 ILR, p. 288.
'06 31 ILM, 1992, p. 1145; 95 ILR, p. 645.
'07 31 ILM, 1992, pp. 1160-1; 95 ILR, pp. 660-3.
'02

534

I N T E R N A T I O N A L LAW

identification of the relevant coastlines in each particular case, however,generates specific problems. Accordingly, the way in which the geographical situation is described may suggest particular solutions, so that theseemingly objective process of geographical identification may indeed
constitute a crucial element in the adoption of any particular juridical
answer. In the St Pierre and Miquelon case, the Court divided the area into
two zones, the southern and western zones. In the latter case, any seaward
extension of the islands beyond their territorial sea would cause somedegree of encroachment and cut-off to the seaward projection towards
the south from points located on the southern shore of Newfoundland.
The Court felt here that any enclaving of the islands within their territorial sea would be inequitable and the solution proposed was to grant theislands an additional 12 miles from the limits of the territorial sea as an
exclusive economic z~ne.~'"n the case of the southern zone, where theislands had a coastal opening seawards unobstructed by any opposite orlaterally aligned Canadian coast, the Court held that France was entitledto an outer limit of 200 nautical miles, provided that such a projection
was not allowed to encroach upon or cut off a parallel frontal projection
ofthe adjacent segments of the Newfoundland southern coast. In order toachieve this, the Court emphasised the importance of the breadth of thecoastal opening of the islands towards the south, thus resulting in a 200mile, but narrow, corridor southwards from the islands as their economic
zone.209Having decided upon the basis of geographical considerations,the Court felt it necessary to assure itself that the delimitation proposed
was not 'radically inequitable'.210 This it was able to do on the basis offacts submitted by the parties. The Court also considered the criterion of
proportionality and satisfied itself that there was no disproportion in theareas appertaining to each of the parties.21'
In the Jan Mayen (Denmark v. Norway) ca~e,~l"hequestion of the delimitation of the continental shelf between the islands of Greenland andJan Mayen was governed in the circumstances by article 6 of the 1958 Convention, accepted as substantially identical to customary law in requiring
'08
'OY
'lo

"'
'I2

31 ILM, 1992, pp. 1169-70; 95 ILR, 17. 671.
31 ILM, 1992, pp. 1170-1; 95 ILR, pp. 671-3.
31 ILM, 1992,p. 1173; 95 ILR, 17. 675. The phrase comes from the GulfofMaine case, ICJ
Reports, 1984, pp. 246, 342; 71 ILR, pp. 74, 169, where it was defined as 'likely to entail

catastrophic repercussions for the livelihood and economic well-being of the populationof the parties concerned:
31 ILM, 1992, p. 1176; 95 ILR, p. 678.
ICJ Reports, 1993, p. 37; 99 ILR, p. 395.

T H E LAW O F T H E S E A

535

an equitable d e l i m i t a t i ~ n . The~ ' ~ International Court noted that since adelimitation between opposite coasts was in question, one needed to begin by taking provisionally the median line and then enquiring whether'special circumstance^'^^^ required another boundary line.21"n particular, one needed to take into account the disparity between the respective
coastal lengths of the relevant area and, since in this case that of Greenland
was more than nine times that of Jan Mayen, an unqualified use of equidistance would produce a manifestly disproportionate
In addition,
the question of equitable access to fish stocks for vulnerable fishing communities needed to be considered. Since the principal resource in the area
was capelin, which was centred on the southern part of the area of overlapping claims, the adoption of a median line would mean that Denmark
could not be assured of equitable access to the capelin. This was a further
reason for adjusting the median line towards the Norwegian island of Jan~ a y e n . ~However,"there was no need to consider the presence of ice as
this did not materially affect access to fishery resources,218nor the limited
population of Jan Mayen, socio-economic factors or security matters in
the circumstance^.^^^In discussing the variety of applicable principles, a distinction has traditionally been drawn between opposite and adjacent states for the purposes of delimitation. In the former case, the Court has noted that thereis less difficulty in applying the equidistance method than in the latter,
since the distorting effect of an individual geographical feature in the caseof adjacent states is more likely to result in an inequitable delimitation.

'I4

'Is

'I6

21'

ICJ Reports, 1993, p. 58; 99 ILR, p. 426. But see the Separate Opinion of Judge Oda, ICJ
Reports, 1993, pp. 102-14; 99 ILR, pp. 470-82.
The Court noted that the category of 'special circumstances' incorporated in article 6 wasessentially the same as the category of 'relevant circumstances' developed in customaryinternational law since both were designed to achieve an equitable solution, ICJ Reports,
1993, p. 62; 99 ILR, p. 430. Special circumstances were deemed to be those that 'might
modify the result produced by an unqualified application of the equidistance principle:
while relevant circumstances could be described as 'a fact necessary to be taken into
account in the delimitation process: ibid.
ICJ Reports, 1993, pp. 59-61; 99 ILR, pp. 427-9.
ICJ Reports, 1993, pp. 65-9; 99 ILR, pp. 433-7.
ICJ Reports, 1993, pp. 70-2; 99 ILR, pp. 438-40. But see the Separate Opinion of J ~ ~ d g e
Schwebel, ICJ Reports, 1993, pp. 118-20; 99 ILR, pp. 486-8.
ICJ Reports, 1993, pp. 72-3; 99 ILR, pp. 440-1.
ICJ Reports, 1993, pp. 73-5; 99 ILR, pp. 441-3. But see the Separate Opinion by Judge
Oda, ICJ Reports, 1993, pp. 114-17; 99 ILR, pp. 482-5. Note also the discussion of equity
in such situations in the Separate Opinion of Judge Weeramantry, ICJ Reports, 1993,
pp. 211 ff.; 99 ILR, pp. 579 ff.

536

I N T E R N A T I O N A L LAW

Accordingly, greater weight is to be placed upon equidistance in a delimitation of the shelf between opposite states in the context of equitableconsideration^,^^^ than in the case of adjacent states where the range ofapplicable equitable principles may be more extensive and the relative
importance of each particular principle less clear. Article 83 of the 1982
Convention, however, makes no distinction between delimitations on thebasis of whether the states are in an opposite or adjacent relationship. The
same need to achieve an equitable solution on the basis of internationallaw is all that is apparent and recent moves to a presumption in favour ofequidistance in the case of opposite coasts may well apply also to adjacentstates.
The weight to be given to the criterion of proportionality between thelength of the coastline and the area of continental shelf has also been thesubject of some consideration and opinions have varied. It is a factor thatmust be cautiously applied.221
Article 74 of the 1982 Convention provides that delimitation of the
exclusive economic zone between states with opposite or adjacent coasts
is to be effected by agreement on the basis of international'in order
to achieve an equitable solution'. Since this phrase is identical to the provision on delimitation of the continental shelf,"" it is not surprising that
See North Sea Continental Shelfcases, ICJ Reports, 1969, pp. 3, 36-7; 41 ILR, pp. 29,
65; the Anglo-French Continental Shelf case, Cmnd 7438, pp. 58-9; 54 ILR, p. 65; theTunisia-Libya Continental Shelfcase, ICJ Reports, 1982, pp. 18, 88; 67 ILR, pp. 4, 81; theGi~lfofMaine case, ICJ Reports, 1984, pp. 246, 325; 71 ILR, p. 74, and the Jan Mayen
case, ICJ Reports, 1993, p. 37; 99 ILR, p. 395. See also article 6 of the Continental Shelf
Convention, 1958.
The Court in the North Sea Contineritul Shelfcases, in discussing this issue, called fora reasonable degree of proportionality, ICJ Reports, 1969, pp. 3, 52; 41 ILR, pp. 29, 82,
while in the Anglo-French Contirlental Shelf case the Tribunal emphasised that it wasdisproportion rather than proportionality that was relevant in the context ofthe equities,
Cmnd 7438, pp. 60-1; 54 ILR, pp. 6, 67. But cf. the Tunisia-Libya Cor7tinerltal Skelfcase,
ICJ Reports, 1982, pp. 18,75; 67 ILR, pp. 4,75. See also the Libya-Malta Continental Shelf
case, ICJ Reports, 1985, pp. 48-50; 81 ILR, p. 280.
77,--As referred to in article 38 of the Statute of the ICJ.
??' Article 83. Note that the International Court declared that 'the identity of the language
which is employed, even though limited of course to the determillation of the relevant
principles and rules of international law, is particularly significant', the Gulf of Maine
case, ICJ Reports, 1984, pp. 246,295; 71 ILR, pp. 74, 122. The Court declared in the Jan
Mayen Maritime Delimitation (Denmark v. Nortvayj case, ICJ Reports, 1993, pp. 37, 59;
99 ILR, pp. 395,427, that the stateinent in article 74(1) and the corresponding provisionin article 83(1) with regard to the airn of any deliinitation process being an equitable
solution, 'reflects the requirements of customary law as regards the delimitation bothof continental shelf and of exclusive economic zones: The Tribunal in EritredYernenO'"'T H E LAW O F T H E S E A

537

cases have arisen in which states have sought a single maritime boundary,
applying both to the continental shelf and the economic zone. In the Gulfof Maine case,224the Chamber of the International Court took the viewthat the criteria for a single- maritime boundary225were those that would
apply to both the continental shelf and economic zones (in this case afisheries zone) and not criteria that relate to onl~7one of these areas.226
Nevertheless, the overall requirement for the establishment of such aboundary is the need to achieve an equitable solution and this brings
into consideration a range of factors that may or may not be deemed
relevant or decisive by the Court. It is in the eiucidatidn of such factorsthat difficulties have been encountered and it would be over-optimistic
to assert that the situation is clear, although very recent cases have moved
towards a degree of predictability.
In the GulfofMaine case, the Court emphasised that the relevant criteria had to be essentially determined 'in relation to what may be properly
called the geographical features of the area', but what these are is subject to some controversy and did not appear to cover scientific and otherfacts relating to fish stocks, oil exploration, scientific research or common
defence arrangement^.^^' In the Guinea/Guinea Bissau Maritinze Delinzitation case,228the Tribunal was called upon to draw a single line dividing
the territorial sea, economic zone and continental shelf of the two statesconcerned. In the case of the latter two zones, the Tribunal noted that theuse of the equidistance method was unsatisfactory since it exaggerated theimportance of insignificant coastal features. Rather one had to consider
the whole coastline of West ~ f r i c aThe
. ~ Tribunal~~
also considered thatthe evidence with regard to the geological and geomorphological featuresof the continental shelf was unsatisfactory,230while general economic factors were rejected as being unjust and inequitable, since they were based
upon an evaluation of data that was constantly changing.23'The question(Phase Two: Maritime Delimitationj stated in relation to articles 74 and 83 that theseprovisions resulted from a last-minute endeavour at the conference to get agreement on avery controversial matter and so 'were collsciously designed to decide as little as possible',
119 ILR, pp. 417,454.
224 ICI Reports, 1984, p. 246; 71 ILR, p. 74.
22' The Court has ernphasised that the notion of a single maritime line stems from statepractice and not from treaty law, thus underlining its position in customary law, Qatar v.
Balzrain, ICJ Reports, 2001, para. 173 and Canzeroon v. Nigeria, ICJ Reports, 2002, para.
286.
'6
Gulfof Maine case, ICJ Reports, 1984, p. 326; 71 ILR, p. 153.
227 ICJReports, 1984,p. 278; 71 ILR, p. 105.
77ILR,p. 635.
229 Ibid.,pp. 679-81.
' ' O Ibid., pp. 685-7.
231 Ibid., pp. 688-9.

538

I N T E R N A T I O N A L LAW

of a single maritime boundary arose again in the St Pierre and Miquelon(Canada/France)~ a s e , ~ ~ % h ether e Tribunal was asked to establish a singledelimitation as between the parties governing all rights and jurisdictionthat the parties may exercise under international law in these maritime
areas. In such cases, the Tribunal, following the Gulf of Maine decision,
took the view that in a single or all-purpose delimitation, article 6 of the
Geneva Convention on the Continental Shelf, 1958, which governed thedelimitation of the continental shelf, did not have mandatory force as
regards the establishment of that single maritime line.233
However, where there did not exist a special agreement between the parties asking the Court to determine a single maritime boundary applicable
both to the continental shelf and the economic zone, the Court declaredin the Jan Mayen Maritime Delimitation (Denmark v. Norway) case234
that the two strands of the applicable law had to be examined separately.
These strands related to the effect of article 6 of the Geneva Convention
on the Continental Shelf, 1958 upon the continental shelf and the rulesof customary international law with regard to the fishery zone.235
Recent cases have seen further moves towards clarity and simplicity.
In Eritrea/Yemen (Phase Two: Maritime Delimitation), the Tribunal notedthat it was a generally accepted view that between coasts that are opposite to each other, the median or equidistance line normally provided
an equitable boundary in accordance with the requirements of the 1982
It also reaffirmed earlier case-law to the effect that proportionality was not an independent mode or principle of delimitation, but
a test of the equitableness of a delimitation arrived at by other means.237
The Tribunal also considered the role of mid-sea islands in a delimitation
31 ILM, 1992, p. 1145; 95 ILR, p. 645. See also M. D. Evans, 'Less Than an Ocean Apart:
The St Pierre and Miquelon and Jan Mayen Islands and the Delimitation of Maritime
Zones', 43 ICLQ, 1994, p. 678; K. Highet, 'Delimitation of the Maritime Areas Between
Canada and France', 87 AJIL, 1993, p. 452, and H. Ruiz Fabri, 'Sur la Delimitation desEspaces Maritimes entre le Canada et la France: 97 RGDIP, 1993, p. 67.
'j2 31 ILM, 1992, p. 1163; 95 ILR, p. 663.
'j4 ICJ Reports, 1993, p. 37; 99 ILR, 17.395.See also M. D. Evans, 'Case Concerning Maritime
Delimitation in the Area Between Greenland and Jan hfayen (Denmark v. Noru~ay)',43
ICLQ, 1994, p. 697.
But see the Separate Opinion of Judge Oda, who took the view that the regime of thecontinental shelf was independent of the concept of the exclusive economic zone and thatthe request to draw a single maritime boundary was misconceived, ibid., pp. 96-7; 99
ILR, pp. 464-5.
2'6 119 ILR, pp. 417,457.
'37 Ibid., p. 465. See also the North Sea Continental Shelfcases, ICJ Reports, 1969, pp. 3, 52;
41 ILR, p. 29 and the Anglo-French Continental Shelfcase, Cmnd 7438; 54 ILR, p. 6.
"2

"'

539

T H E LAW O F T H E S E A

between opposite states and noted that to give them full effect would produce a disproportionate effect.238Indeed, no effect was given to some of
the islands in question.239
In Qatar v. Bahrain, the Court emphasised the close relationship between continental shelf and economiczone delimitations240and held thatthe appropriate methodology was first to provisionally draw an equidistance line and then to consider whether circumstances existed whichmust lead to an adjustment of that line.24' Further, it was noted that'the equidistancelspecial circumstances' rule, applicable to territorial sea
delimitation, and the 'equidistancelrelevant circumstances' rule as developed since 1958 in case-law and practice regarding the delimitation of thecontinental shelf and the exclusive economic zone were 'closely related'.242
The Court did not consider the existence of pearling banks to be a circumstance justifying a shift in the equidistance linez4-' nor was the disparity
in length of the coastal fronts of the states.244It was also considered thatfor reasons of equity in order to avoid disproportion, no effect could begiven to Fasht a1 Jarim, a remote projection of Bahrain's coastline in the
Gulf area, which constituted a maritime feature located well out to sea
and most of which was below water at high tide.245
This approach was reaffirmed by the Court in Cameroon v. Nigeria,
where it was noted that 'the applicable criteria, principles and rules ofdelimitation' concerning a line 'covering several zones of coincident jurisdiction' could be expressed in 'the so-called equitable principleslrelevant
circumstances method'. This method, 'which is very similar to the equidistancelspecial circumstances method' concerning territorial sea delimitation, 'involves first drawing an equidistance line, then considering
whether there are factors calling for the adjustment or shifting of thatline in order to achieve an "equitable result"'.246 Such a line had to beconstructed on the basis of the relevant coastlines of the states in question
and that excluded taking into account the coastlines of third states andthe coastlines of the parties not facing each other.247Further, the Court
emphasised that 'equity is not a method of delimitation, but solely an aim'" 119 ILR, 454.
''' bid., p. 461. N o t e that t h e Tribunal rejected t h e enclaving o f s o m e islands as had occurredi n t h e Anglo-French Continental Shelfcase, ibid., p. 463.
'" ICJ Reports, 2001, para. 226. '" Ibid., para. 230. '" Ibid., para. 231.
17.

Ibid., para. 236.
Ibid., para. 243. T h i s was i n v i e w o f t h e recognition that Bahrain had sovereignty overt h e Hawar Islands, a factor w h i c h mitigated any serious disparity.
24' Ibid., para. 248.
ICT Reports, 2002, para. 288.
Ibid., para. 291.
243

244

'"

'"

540

I N T E R N A T I O N A L LAW

that should be borne in mind in effecting the delimitation',248thus putting
an end to a certain trend in previous decades to put the whole emphasis in delimitation upon an equitable solution, leaving substantially open
the question of what factors to take into account and how to rank them.
The geographical configuration of the maritime area in question was animportant element in this case and the Court stressed that while certain
geographical peculiarities of maritime areas could be taken into account,
this would be solely as relevant circumstances for the -purpose,
if necessary, of shifting the provisional delimitation line. In the present case, theCourt did not consider the configuration of the coastline a relevant circumstance justifying altering the equidistance line.249Similarly the Court
did not feel it necessary to take into account the existence of Bioko, anisland off the coast of Cameroon but belonging to a third state, Equatorial
Guinea, nor was it concluded that there existed 'a substantial differencein the lengths of the parties' respective coastlines' so as to make it a factor
to be considered in order to adjust the provisional delimitation line.250
Accordingly, there is now a substantial convergence of applicable principles concerning maritime delimitation, whether derived from customary
law or treaty. In all cases, whether the delimitation is of the territorial sea,continental shelf or economic zone (or of the latter two together), theappropriate methodology to be applied is to draw an equidistance linez5'
and then see whether any relevant or special circumstances exist which
maywarrant a change in that line. The presumption in favour of that line isto be welcomed as a principle of value and clarity. Any circumstances that
may change the linewould exclude any notion of distributive justice andequitable sharing, but would be rigorously examined. Configuration of
the relevant respective coastlines, length of relevant coastlines, existenceof islands, security consideration^^^^ and the prior conduct of partieszs3
may all be pertinent factors in the particular circumstances of the case.2s4" V b i d . , para. 294.
Ibid., paras. 295-7.
"O
Ibid., paras. 299-301. See also, as to the relevance of oil practice by the parties, ibid., paras.
302-4, and EritrealYenlen (Phase nro: Maritime Delimitation), 119 ILR, pp. 417,443 ff.

"' Whether this principle can be stated equally strongly with regard to adjacent states is
unclear, hut likely.
"' See e.g. Libya/Malta Continental Shelfcase, ICJ Reports, 1985, pp. 13, 42; 81 ILR, p. 238,"'
2'4

and the Jan ~Lfayerz(Denmark v. Norway) case, ICJ Reports, 1993, pp. 37, 74-5; 99 ILR,
p. 395.
E.g. oil coilcessioils where based on express or tacit agreement between the parties,
Curneroon v. Nigeria, ICJ Reports, 2002, para. 304, or in an alternative formulation where
there existed a modus viveizdi, see E~nisialLibya,ICJ Reports, 1982, pp. 18, 84; 67 ILR,
p. 4, and the GtllfofM(zine case, ICJ Reports, 1982, pp. 246, 310-11; 71 ILR, p. 57.
See e.g. Churchill and Lowe, Law of the Sea, pp. 188 ff.

T H E LAW O F T H E S E A

Landlocked states255
Article 3 of the Geneva Convention on the High Seas, 1958 provided
that 'in order to enjoy freedom of the seas on equal terms with coastal
states, states having no sea coast should have free access to the sea'."6
Article 125 of the 1982 Convention on the Law of the Sea is formulated asfollows:
1. Land-locked states shall have the right of access to and from the sea
for the purpose of exercising the rights provided for in this Convention
including those relating to the freedom of the high seas and the conlmon
heritage of mankind. To this end, land-locked states shall enjoy freedom oftransit through the territory of transit states by all means of transport.
2. The terms and modalities for exercising freedom of transit shallbe agreed between the land-locked states and the transit state concerned
through bilateral, subregional or regional agreements.
3. Transit states, in the exercise of their full sovereignty over their territory, shall have the right to take all measures necessary to ensure that therights and facilities provided for in this Part for land-locked states shall in
n o way infringe their legitimate interests.

It will thus be seen that there is no absolute right of transit, but rather
that transit depends upon arrangements to be made between the landlocked and transit states. Nevertheless, the affirmation of a right of accessto the sea coast is an important step in assisting landlocked states. Articles
127 to 130 of the 1982 Convention set out a variety of terms for the operation of transit arrangements, while article 131 provides that ships flying
the flag of landlocked states shall enjoy treatment equal to that accorded toother foreign ships in maritime ports. Ships of all states, whether coastal
states or landlocked states, have the right of innocent passage in the territorial sea and freedom of navigation in the waters beyond the territorial
sea.'"'" See e.g. S. C. Vasciannie, Land-Locked and Geographically Disadvantaged States in tlzeInternational Law oftlze Sea, Oxford, 1990; 1. Symonides, 'Geographically Disadvantaged
States in the 1982 Convention on the Law of the Sea', 208 HR, 1988, p. 283; M. I. Glassner,
Bibliography on Land-Locked States, 4th edn, The Hague, 1995; L. Caflisch, 'Land-locked
States and their Access to and from the Sea', 49 BYIL, 1978, p. 71, and I. Delupis, 'Landlocked States and the Law of the Sea', 19 Scandinaviarz Studies in Law, 1975, p. 101. See
also Churchill and Lowe, Law of the Sea, chapter 18.
2s6 See also the Convention on Transit Trade of Land-Locked States, 1965.
"' See e.g. article 14(1) ofthe Geneva Convention on the Territorial Sea, 1958; articles 2(1)and 4 of the Geneva Convention on the High Seas, 1958 and articles 17, 38(1), 52(1),53(2),5 8 ( l ) ,87 and 90 of the 1982 Convention.

542

I N T E R N A T I O N A L LAW

It is also to be noted that landlocked states have the right to participate upon an equitable basis in the exploitation of an appropriate partof the surplus of the living resources of the economic zones of coastal
states of the same subregion or region, taking into account relevant economic and geographical factors.258Geographically disadvantaged states
have the same right.'"' The terms and modalities of such participation are
to be established by the states concerned through bilateral, subregionalor regional agreements, taking into account a range of factors, including
the need to avoid effects detrimental to fishing communities or fishingindustries of the coastal state and the nutritional needs of the respective
states.260
With regard to provisions concerning the international seabed regime,
article 148 ofthe 1982 Convention provides that the effective particip ationof developing states in the International Seabed Area shall be promoted,
having due regard to their special interests and needs, and in particular
to the special need of the landlocked and geographically disadvantaged
among them to overcome obstacles arising from their disadvantaged location, including remoteness from the Area and difficulty of access to andfrom it.261
The high seas262
The closed seas concept proclaimed by Spain and Portugal in the fifteenthand sixteenth centuries, and supported by the Papal Bulls of 1493 and1506 dividing the seas of the world between the two powers, was replaced'"Article 69(1) of the 1982 Convention.
Article 70(1). Geographically disadvantaged states are defined in article 70(2) as 'coastal
states, including states bordering enclosed or semi-enclosed seas, whose geographicalsituation makes them dependent upon the exploitation of the lip-ing resources of the
exclusive economic zones of other states in the subregion or region for adequate supplies
of fish for the nutritional purposes of their populations or parts thereof, and coastal states
which can claim no exclusive economic zone of their own:
260 See articles 69(2) and 70(2). Note also articles 69(4) and 70(5) restricting such rightsof participation of developed landlocked states to developed coastal states of the same
subregion or region. By article 71, the provisions of articles 69 and 70 do not apply in thecase of a coastal state whose economy is overwhelmingly dependent on the exploitationof the living resources of its exclusive economic zone.
261 See also articles 152, 160 and 161.
'62 See e.g. Brown, International Law of the Sea, vol. I , chapter 14; O'Connell, International
Laiv of the Sea, vol. 11, chapter 21, and Churchill and Lowe, Laiv of the Sea, chapter 11.
See also Oppenheirn'5 International Laiv, pp. 710 ff. and Nguyen Quoc Dinh et al., Droit
International Public, p. 1194.
2i9

T H E LAW O F T H E S E A

543

by the notion of the open seas and the concomitant freedom of the highseas during the eighteenth century.
The essence of the freedom of the high seas is that no state may acquire
sovereignty over parts of them.26"his is the general rule, but it is subject
to the operation of the doctrines of recognition, acquiescence and prescription, where, by long usage accepted by other nations, certain areasof the high seas bounding on the territorial waters of coastal states may
be rendered subject to that state's sovereignty. This was emphasised in the
Anglo-Norwegian Fisheries case.264
The high seas were defined in Article 1 of the Geneva Convention on
the High Seas, 1958 as all parts of the sea that were not included in the
territorial sea or in the internal waters of a state. This reflected customaryinternational law, although as a result of developments the definition inarticle 86 of the 1982 Convention includes: all parts of the sea that are notincluded in the exclusive economic zone, in the territorial sea or in theinternal waters of a state, or in the archipelagic waters of an archipelagicstate.
Article 87 of the 1982 Convention (developing article 2 of the 1958
Geneva Convention on the High Seas) provides that the high seas are open
to all states and that the freedom of the high seas is exercised under theconditions laid down in the Convention and by other rules ofinternationallaw. It includes inter alia the freedoms of navigation, overflight, the laying
of submarine cables and pipelines,265the construction of artificial islands
and other installations permitted under international
fishing, andthe conduct of scientific research.267Such freedoms are to be exercisedwith due regard for the interests of other states in their exercise of thefreedom of the high seas, and also with due regard for the rights under
the Convention regarding activities in the International Seabed ~ r e a . ~ ~ ~Australia and New Zealand alleged before the ICJ, in the Nuclear Tests
case,'69 that French nuclear testing in the Pacific infringed the principle of16"ee article 2 of the 1958 High Seas Convention and article 89 of the 1982 Convention.
264 ICJ Reports, 1951, p. 116; 18 ILR, p. 86. See above, p. 496.
26' Subject to Part VI of the Convention, dealing with the continental shelf.
266 Subject to Part VI of the Convention, dealing with the continental shelf.
267 Subject to Part VI of the Convention, dealing with the continental shelf, and Part XIII,
dealing with marine scientific research.
See below, p. 560.
26' ICJ Reports, 1974, pp. 253 and 457; 57 ILR, pp. 350, 605. See also the Order of the International Court of rustice of 22 September 1995 in the Request for an Examination of
the Situation in Accordance with Paragraph 63 of the Court's Judgment of 20 December
1974 in the h'uclear Tests (New Zealand v. France) case, ICr Reports, 1995, p. 288, where544

I N T E R N A T I O N A L LAW

the freedom of the seas, but this point was not decided by the Court. The
1963 Nuclear Test Ban Treaty prohibited the testing of nuclear weapons on
the high seas as well as on land, but France was not a party to the treaty, andit appears not to constitute a customary rule binding all states, irrespectiveof the treaty.2i0 Nevertheless, article 88 of the 1982 Convention provides
that the high seas shall be reserved for peaceful purposes.
Principles that are generally acknowledged to come within article 2
include the freedom to conduct naval exercises on the high seas and thefreedom to carry out research studies.
The freedom of navigation271is a traditional and well-recognised facetof the doctrine of the high seas, as is the freedom of fishing.272This was
reinforced by the declaration by the Court in the Fisheries Jurisdiction
cases273that Iceland's unilateral extension of its fishing zones from 12 to
50 miles constituted a violation of article 2 of the High Seas Convention,
which is, as the preamble states, 'generally declaratory of established principles of international law: The freedom of the high seas applies not only
to coastal states but also to states that are l a n d l ~ c k e d . ~ ' ~The question of freedom of navigation on the high seas in times ofarmed conflict was raised during the Iran-Iraq war, which during its
latter stages involved attacks upon civilian shipping by both belligerents.
Rather than rely on the classical and somewhat out-of-date rules of thelaws of war at sea,275the UK in particular analysed the issue in terms of
the UN Charter. The following statement was made:276
the Court refused to accede to a request by New Zealand to re-examine the 1974 judgment in view of the resumption by France of underground nuclear testing in the South
Pacific.
Note, however, the development of regional agreements prohibiting nuclear weapons:see the Treaty of Tlatelolco for the Prohibition of Nuclear Weapons in Latin America,
1967, which extends the nuclear weapons ban to the territorial sea, airspace and anyother space over which a state party exercises sovereignty in accordance with its own
legislation; the Treaty of Rarotonga establishing a South Pacific Nuclear-Free Zone, 1985;
the African Nuclear \\7eapon-Free Treaty, 1996 and the Treaty on the Southeast Asia
Nuclear l17eapon-FreeZone, 1995.
2" See the Corfu Channel case, ICT Reports, 1949, pp. 4,22; 16 AD, p. 155, and Nicaragua v.
United States, ICJ Reports, 1986, pp. 14, 111-12; 76 ILR, pp. 349,445.
2 i 2 See the Anglo-Norwegian Fisheries case, ICJ Reports, 1951, pp. 116, 183; 18 ILR, pp. 86,"'

131. See also below, p. 556.

"' ICJ Reports, 1974, p. 3.
"5"6

2'4 See above, p. 541.
See e.g. Cl~urcl~ill
and Lowe, Latv of the Sea, chapter 17, and C. J. Colombos, International
Laiv of the Sea, 6th edn, London, 1967, part 11.
Parliamentary Papers, 1987-8, HC, Paper 179-11, p. 120 and UKMIL, 59 BYIL, 1988,
p. 581.

T H E LAW O F T H E S E A

545

The UK upholds the principle of freedom of navigation o n the high seas
and condelnns all violations of the law of armed conflicts including attacks
o n merchant shipping. Under article 51 of the UN Charter, a state actively
engaged in armed conflict (as in the case of Iran and Iraq) is entitled in
exercise of its inherent right of self-defence to stop and search a foreign
merchant ship o n the high seas if there is reasonable ground for suspectingthat the ship is taking arms to the other side for use in the conflict. This isan exceptional right: if the suspicion proves to be unfounded and if the ship
has not committed acts calculated to give rise to suspicion, then the ship's
owners have a good claim for compensation for loss caused by the delay.
This right would not, however, extend to the imposition of a maritime
blockade or other forms of economic warfare.

Jurisdiction on the high seas277
The foundation of the maintenance of order on the high seas has rested
upon the concept of the nationality of the ship, and the consequent jurisdiction of the flag state over the ship. It is, basically, the flag state that will
enforce the rules and regulations not only of its own municipal law but ofinternational law as well. A ship without a flag will be deprived of manyof the benefits and rights available under the legal regime of the high seas.
Each state is required to elaborate the conditions necessary for the
grant of its nationality to ships, for the registration of ships in its territory
and for the right to fly its flag2" The nationality of the ship will depend
upon the flag it flies, but article 91 of the 1982 Convention also stipulates
that there must be a 'genuine link' between the state and the ship.279This
provision, which reflects 'a well-established rule of general international
law',280was intended to check the use of flags of convenience operated bystates such as Liberia and Panama which would grant their nationality toships requesting such because of low taxation and the lack of applicationof most wage and social security agreements. This enabled the ships tooperate at very low costs indeed.
277 See e.g. Oppenkeim' bitertlational Law, p. 731.

2'%rticle 5 of the 1958 High Seas Convention and article 91 of the 1982 Convention.
279 Article 5 of the High Seas Convention, 1958 had added to this the requirement that 'in
particular the state must effectively exercise its jurisdiction and control in administrative,
technical and social matters over ships flying its flag'. This requirement appears in article
94 of the 1982 Convention.
280 See the 1999 decision of the International Tribunal for the Law of the Sea in M/VSaiga(No. 2), 120 ILR, pp. 143, 175.

546

I N T E R N A T I O N A L LAW

However, what precisely the 'genuine link' consists of and how one
may regulate any abuse of the provisions of article 5 are unresolved questions. Some countries, for example the United States, maintain that therequirement of a 'genuine link' really only amounts to a duty to exercise
jurisdiction over the ship in an efficacious manner, and is not a precondition for the grant, or the acceptance by other states of the grant, ofnati~nality.~~'An opportunity did arise in 1960 to discuss the meaning of the provision in the IMCO case.28' The International Court was called upon todefine the 'largest ship-owning nations' for the purposes of the constitution of a committee of the Inter-Governmental Maritime Consultative
Organisation. It was held that the term referred only to registered tonnage
so as to enable Liberia and Panama to be elected to the committee. Unfortunately, the opportunity was not taken of considering the problems offlags of convenience or the meaning of the 'genuine link' in the light of thetrue ownership of the ships involved, and so the doubts and ambiguities
remain.
The UN Conference on Conditions of Registration of Ships, held under the auspices of the UN Conference on Trade and Development, convened in July 1984 and an agreement was signed in 1986. It attempts
to deal with the flags of convenience issue, bearing in mind that nearly
one-third of the world's merchant fleet by early 1985 flew such flags. It
specifies that flag states should provide in their laws and regulations forthe ownership of ships flying their flags and that those should include
appropriate provision for participation by nationals as owners of suchships, and that such provisions should be sufficient to permit the flagstate to exercise effectively its jurisdiction and control over ships flying its
flag.283
The issue of the genuine link arose in the context of the Iran-Iraq war
and in particular Iranian attacks upon Kuwaiti shipping. This prompted
Kuwait to ask the UK and the USA to reflag Kuwaiti tankers. The USA
agreed in early 1987 to reflag eleven such tankers under the US flag and toprotect them as it did other US-flagged ships in the ~ u l fThe
. ~UK
~ also~See Churchill and Lowe, Law ofthe Seu, pp. 213 ff.
ICJ Reports, 1960, p. 150; 30 ILR, p. 426.
283 Keesiilg's Conternporury Archives, p. 33952.
2x4 See 26 ILM, 1987, pp. 1429-30,1435-40 and 1450-2. See also 37 ICLQ, 1988, pp. 424-45,
and M. H. Nordquist and M. G. M achenfeld, 'Legal Aspects of Reflagging Kuwaiti Tankers
and Laying of Mines in the Persian Gulf', 31 Gerinan YIL, 1988, p. 138.
T

T H E LAW O F T H E S E A

547

agreed to reflag some Kuwaiti tankers, arguing that only satisfaction of
Department of Trade and Industry requirements was necessary.285Bothstates argued that the genuine link requirement was satisfied and, in viewof the ambiguity of state practice as to the definition of genuine link insuch instances, it is hard to argue that the US and UK acted unlawfully.
The International Tribunal for the Law of the Sea in M/V Saiga (No. 2)
has underlined that determination of the criteria and establishment of theprocedures for granting and withdrawing nationality to ships are matterswithin the exclusive jurisdiction of the flag state, although disputes concerning such matters may be subject to the dispute settlement proceduresof the 1982 Convention. The question of the nationality of a ship was aquestion of fact to be determined on the basis of evidence adduced by theparties.286The conduct of the flag state, 'at all times material to the dispute', was an important consideration in determining the nationality or
registration of a ship.'" The Tribunal has also confirmed that the requirement of a genuine link was in order to secure effective ilnple~nentationof the duties of the flag state and not to establish criteria by reference
to which the validity of the registration of ships in a flag state may bechallenged by other states.288
Ships are required to sail under the flag of one state only and are subject
to its exclusive jurisdiction (save in exceptional cases). Where a ship does
sail under the flags of more than one state, according to convenience,
it may be treated as a ship without nationality and will not be able toclaim any of the nationalities concerned.289A ship that is stateless, anddoes not fly a flag, may be boarded and seized on the high seas. This
point was accepted by the Privy Council in the case of Naim Molvan
v. Attorney-General for ~alestine,~"which concerned the seizure by the
British navy of a stateless ship attempting to convey immigrants into
Palestine.

"' See e.g. 119 HC Deb., col. 645, 17 July 1987.
286 120 ILR, pp. 143,

175-6. See also the decision by the International Tribunal for the
Law of the Sea in the Grand Prince case, 2001, paras. 81 ff. See http://~mvcl~.itlos.
org/start2_en.html.
MIVSniga, 120 ILR, pp. 143, 176 and the Grand Prince case, 2001, para. 89.
M/VSuiga, 120 ILR, pp. 143, 179.
289 Article 6 of the 1958 Conveiltion and article 92 of the 1982 Convention.
'90 119481 AC 351; 13 AD, p. 51. See also e.g. US v. Dorniilgt~ez
604 F.2d 304 (1979); L'S v.
Cortes588 F.2d 106 (1979); US v. Monroy614 F.2d61 (1980) and US v. Marino-Garcia679
F.2d 1373 (1982). In the latter case, the Court referred to stateless vessels as 'internationalpariahs: ibid., p. 1383.

548

I N T E R N A T I O N A L LAW

The basic principle relating to jurisdiction on the high seas is thatthe flag state alone may exercise such rights over the ship.291This was
elaborated in the Lotus case,292where it was held that 'vessels on the highseas are subject to no authority except that of the state whose flag theyfly'.293This exclusivity is without exception regarding warships and ships
owned or operated by a state where they are used only on governmental
non-commercial service. Such ships have, according to articles 95 and 96
of the 1982 Convention, 'complete immunity from the jurisdiction of any
state other than the flag state'.294

Exceptions to the exclusivity ofjlag-state jurisdiction
However, this basic principle is subject to exceptions regarding othervessels, and the concept of the freedom of the high seas is similarly limitedby the existence of a series of exceptions.
Right of visit
Since the law of the sea depends to such an extent upon the nationality ofthe ship, it is well recognised in customary international law that warships
have a right of approach to ascertain the nationality of ships. However,this right of approach to identify vessels does not incorporate the rightto board or visit ships. This may only be undertaken, in the absence of
hostilities between the flag states of the warship and a merchant vessel andin the absence of special treaty provisions to the contrary, where the ship
is engaged in piracy or the slave trade, or, though flying a foreign flag or
no flag at all, is in reality of the same nationality as the warship or of nonationality. But the warship has to operate carefullyin such circumstances,since it maybe liable to pay compensation for any loss or damage sustained
if its suspicions are unfounded and the ship boarded has not committed
any act justifying them. Thus, international law has settled for a narrow
exposition ofthe right of approach, in spite of earlier tendencies to expand
this right, and the above provisions were incorporated into article 22 of theHigh Seas Convention. Article 110 of the 1982 Convention added to thislist a right of visit where the ship is engaged in unauthorised broadcasting
291 See article 6 of the 1958 Convention and article 92 of the 1982 Convention.

*" PCIJ, Series A, No. 10, 1927, p. 25; 4 AD, p. 153. See also Sellers v. Maritime Safety Inspector[I9991 2 NZLR 44,46-8; 120 ILR, p. 585.

*" Note that duties of the flag state are laid down in articles 94, 97, 98, 99, 113 and 115 of
the 1982 Convention.

'" See articles 8 and 9 of the High Seas Convention, 1958.

T H E LAW O F T H E S E A

549

and the flag state of the warship has under article 109 of the Convention
jurisdiction to prosecute the offender.

The most formidable of the exceptions to the exclusive jurisdiction of theflag state and to the principle of the freedom of the high seas is the conceptof piracy. Piracy is strictly defined in international law and was declaredin article 101 of the 1982 Convention to consist of any of the following
acts:(d) Any illegal acts ofviolence, detention or any act of depredation, c o ~ n ~ n i t ted for private ends by the crew or the passengers of a private ship or private
aircraft and directed: (i) o n the high seas, against another ship or aircraft,or against persons or property o n board such ship or aircraft; (ii) against
a ship, aircraft, persons or property in a place outside the jurisdiction of
any state; (b) Any act of voluntary participation in the operation of a ship
or of an aircraft with knowledge of facts making it a pirate ship or aircraft;(c) Any act of inciting or of intentionally facilitating an act described insubparagraph (a) or (b).19"

The essence of piracy under international law is that it must be committed for private ends. In other words, any hijacking or takeover for politicalreasons is automatically excluded from the definition of piracy. Similarly,
any acts committed on the ship by the crew and aimed at the ship itself
or property or persons on the ship do not fall within this category.
Any and every state may seize a pirate ship or aircraft whether on thehigh seas or on terra nullius and arrest the p ersons and seize the property
on board. In addition, the courts of the state carrying out the seizure
have jurisdiction to impose penalties, and may decide what action totake regarding the ship or aircraft and property, subject to the rights ofthird parties that have acted in good faith.297The fact that every state
may arrest and try persons accused of piracy makes that crime quite2"

See e.g. Brown, International Law of the Sea, vol. I, p. 299; Oppenlleim' International Latv,
p. 746, and B. H. Dubner, The Law of Interrzational Sea Piracy, The Hague, 1979.
See also article 15 of the High Seas Convention, 1958. Note that article 105 of the 1982
Convention deals with the seizure of pirate boats or aircraft, while article 106 provides forcompensation in the case of seizure without adequate grounds. See also Atheris Maritime
Enterprises Corporation v. Hellerlic Muttla1 W a r Risks Association [I9831 1 All ER 590; 78
ILR, p. 563.
See article 19 of the 1958 Convention and article 105 of the 1982 Convention. See also
the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime
Navigation, 1988 and Protocol, 1989.

550

I N T E R N A T I O N A L LAW

exceptional in international law, where so much emphasis is placed upon
the sovereignty and jurisdiction of each particular state within its own
territory.
The slave trade298
Although piracy may be suppressed by all states, most offences on the highseas can only be punished in accordance with regulations prescribed by
the municipal legislation of states, even where international law requires
such rules to be established. Article 99 of the 1982 Convention provides
that every state shall take effective measures to prevent and punish thetransport of slaves in ships authorised to fly its flag and to prevent the
unlawful use of its flag for that purpose. Any slave taking refuge on board
any ship, whatever its flag, shall ipso facto be free.299Under article 110,
warships may board foreign merchant ships where they are reasonably
suspected of engaging in the slave trade; offenders must be handed overto the flag state for trial.300
Unauthorised broadcasting3''
Under article 109 of the 1982 Convention, all states are to co-operate in
the suppression of unauthorised broadcasting from the high seas. This isdefined to mean transmission of sound or TV from a ship or installationon the high seas intended for reception by the general public, contrary
to international regulations but excluding the transmission of distresscalls. Any person engaged in such broadcasting may be prosecuted by theflag state of the ship, the state of registry of the installation, the state ofwhich the person is a national, any state where the transmission can bereceived or any state where authorised radio communication is sufferinginterference.
2yx

See e.g. Brown, Iriter7iatioi~alLatv of the Sea, vol. I , 1). 309.

'" See also article 13 of the High Seas Convention, 1958.

See also article 22 of the High Seas Convention, 1958. Several international treaties exist
with the aim of suppressing the slave trade and some provide for reciprocal rights ofvisits and search on the high seas: see e.g. Churchill and Lowe, Law of the Sea, pp. 171-2.
Note also that under article 108 of the 1982 Convention all states are to co-operate in the
suppression of the illicit drug trade.
'01 See e.g. J. C. I'oodliffe, 'The Demise of Unauthorised Broadcasting from Ships in International Mkters: 1 Journal of Estuarine and Coastal Law, 1986, p. 402, and Brown,
International Laiv of the Sea, vol. I , p. 312.
-'0°

T H E LAW O F T H E S E A

55l

Any of the above states having jurisdiction may arrest any person or
ship engaging in unauthorised broadcasting on the high seas and seize
the broadcasting apparatus.302
Hot pursuit N0"
The right of hot pursuit of a foreign ship is a principle designed to ensurethat a vessel which has infringed the rules of a coastal state cannot escapepunishment by fleeing to the high seas. In reality it means that in certain
defined circumstances a coastal state may extend its jurisdiction onto
the high seas in order to pursue and seize a ship which is suspected of
infringing its laws. The right, which has been developing in one form or
another since the nineteenth century,304was comprehensively elaborated
in article 11 1 of the 1982 Convention, building upon article 23 of the High
Seas Convention, 1958.
It notes that such pursuit may commence when the authorities of thecoastal state have good reason to believe that the foreign ship has violated
its laws. The pursuit must start while the ship, or one of its boats, is within
the internal waters, territorial sea or contiguous zone of the coastal stateand may only continue outside the territorial sea or contiguous zone if
it is uninterrupted. However, if the pursuit commences while the foreign
ship is in the contiguous zone, then it may only be undertaken if there
has been a violation of the rights for the protection of which the zone
was established. The right may similarly commence from the archipelagic
waters. In addition, the right will apply mutatis mutandis to violations in
the exclusive economic zone or on the continental shelf (including safetyzones around continental shelf installations) of the relevant rules andregulations applicable to such areas.
~ opursuitonlytbegins when the pursuing ship has satisfied itself thatthe ship pursued or one of its boats is within the limits of the territorial
sea or, as the case may be, in the contiguous zone or economic zone oron the continental shelf. It is essential that prior to the chase a visualor auditory signal to stop has been given at a distance enabling it to be
seen or heard by the foreign ship and pursuit may only be exercised by-'02 See also article 110 ofthe 1982 Convention. In addition, see the European Agreement for

the Prevention of Broadcasting transmitted from Stations outside National Territories.
See e.g. N. Poulantzas, The Right of Hot Pursuit in International Latv, 2nd edn, The Hague,
2002, and Oppenheim's International Law, p. 739. See also It'. C. Gilmore, 'Hot Pursuit:
The Case of R v. Mills and Others: 44 ICLQ, 1995, p. 949.
'04 See e.g. the I'm Alone case, 3 RIAA, p. 1609 (1935); 7 AD, p. 203.
'O'

552

I N T E R N A T I O N A L LAW

warships or military aircraft or by specially authorised government ships
or planes. The right of hot pursuit ceases as soon as the ship pursued hasentered the territorial waters of its own or a third state. The International
Tribunal for the Law of the Sea has emphasised that the conditions laid
down in article 111 are cumulative, each one of them having to be satisfied
in order for the pursuit to be lawful."-' In stopping and arresting a shipin such circumstances, the use of force must be avoided if at all possible
and, where it is unavoidable, it must not go beyond what is reasonable
and necessary in the c i r c ~ m s t a n c e s . ~ ~ "Collisions
Where ships are involved in collisions on the high seas, article 11 of
the High Seas Convention declares, overruling the decision in the Lotus
case,307that penal or disciplinary proceedings may only be taken against
the master or other persons in the service of the ship by the authorities of either the flag state or the state of which the particular person
is a national. It also provides that no arrest or detention of the ship,even for investigation purposes, can be ordered by other than the authorities of the flag state. This was reaffirmed in article 97 of the 1982
Convention.
Treaty rights3''
In many cases, states may by treaty permit each other's warships to exercise
certain powers of visit and search as regards vessels flying the flags of thesignatories to the treaty. For example, most of the agreements in thelast century relating to the suppression of the slave trade provided thatwarships of the parties to the agreements could search and sometimes
detain vessels suspected of being involved in the trade, where such vessels
were flying the flags ofthe treaty states. The Convention for the Protectionof Submarine Cables of 1884 gave the warships of contracting states the
MIVSaiga, 120 ILR, pp. 143, 194.
Ibid.,p. 196. See also the I'mAlonecase, 3 RIAA, p. 1609 (1935); 7 AD, p. 203, and the Red
Crusader case, 35 ILR, p. 485. Note that article 22(1)f ofthe Straddling Stocks Convention,
1995 provides that an inspecting state shall avoid the use of force except when and to
the degree necessary to ensure the safety of the inspectors and where the illspectors are
obstructed in the execution of their duties. In addition, the force used must not exceedthat reasoilably required in the circumstances.
'07 PCIJ, Series A, No. 10, 1927, p. 25; 4 AD, p. 153.
'08 See e.g. Churchill and Lowe, Law of the Sea, pp. 218 ff.
'Os

306

T H E LAW O F T H E S E A

553

right to stop and ascertain the nationality of merchant ships that weresuspected ofinfringing the terms ofthe Convention, and other agreements
dealing with matters as diverse as arms trading and liquor smuggling
contained like powers.309

Article 24 ofthe 1958 Convention on the High Seas called on states to draw
up regulations to prevent the pollution of the seas by the discharge of oilor the dumping of radioactive waste, while article 1 of the Convention on
the Fishing and Conservation of the Living Resources of the High Seas,of the same year, declared that all states had the duty to adopt, or cooperate with other states in adopting, such measures as may be necessary
for the conservation of the living resources of the high seas. Althoughthese provisions have not proved an unqualified success, they have been
reinforced by an interlocking series of additional agreements covering theenvironmental protection of the seas.
The International Convention relating to Intervention on the High Seas
in Cases of Oil Pollution Casualties, signed in 1969 and in force as of June
1975, provides that the parties to the Convention may take such measureson the high seas:
as may be necessary to prevent, mitigate or eliminate grave and imminent
danger to their coastline or related interests from pollution or threat ofpollution of the sea by oil, following upon a maritime casualty or acts
related to such a casualty, which may reasonably be expected to result inmajor harnlfi~lconsequences.

This provision came as a result of the Torrey Canyon incident in 1967~"
in which a Liberian tanker foundered off the Cornish coast, spilling massive quantities of oil and polluting large stretches of the UK and French
See the UK-US Agreement on Vessels Trafficking in Drugs, 1981 and US v, Biermann, 83
AJIL, 1989, p. 99. See also e.g. the Vienna Convention Against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances, 1988 and the Council of Europe Agreement on Illicit
Traffic by Sea, 1995.
" O See Brown, Irlternntional Law of the Sea, vol. I, chapter 15; Churchill and Lowe, Law of
the Sea, chapter 15, and O'Connell, Interrzatioilul Law ofthe Sea, vol. 11, chapter 25. See
below, chapter 15.
311 6 ILM, 1967, p. 480. See also the Amoco Cadizincident in 1978, e.g. Churchill and Lowe,
Law of the Sea, p. 241, and the Aegean Sea and Braer incidents in 1992-3, e.g. G. Plant,'"S(zfer Ships, Cleaner Seas": Lord Donaldson's Inquiry, UK Government's Response andInternational Law', 44 ICLQ, 1995, p. 939.
'09

554

I N T E R N A T I O N A L LAW

coastlines. As a last resort to prevent further pollution, British aircraft
bombed the tanker and set it ablaze. The Convention on Intervention on
the High Seas provided for action to be taken to end threats to the coasts ofstates, while the Convention on Civil Liability for Oil Pollution Damage,also signed in 1969 and which came into effect in June 1975, stipulated
that the owners of ships causing oil pollution damage were to be liable topay compensation.
The latter agreement was supplemented in 1971 by the Convention
on the Establishment of an International Fund for Compensation for Oil
Pollution Damage which sought to provide for compensation in circumstances not covered by the 1969 Convention and aid shipowners in theiradditional financial obligations.
These agreements are only a small part of the web of treaties covering the preservation of the sea environment. Other examples include
the 1954 Convention for the Prevention of Pollution of the Seas by Oil,with its series of amendments designed to ban offensive discharges; the1972 Oslo Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft and the subsequent London Convention
on the Dumping of Wastes at Sea later the same year; the 1973 Convention for the Prevention of Pollution from Ships; and the 1974 Paris
Convention for the Prevention of Marine Pollution from Land-Based
Under the 1982 Convention nearly fifty articles are devoted to the protection of the marine environment. Flag states still retain the competence
to legislate for their ships, but certain minimum standards are imposed
upon
It is also provided that states are responsible for the fulfilment of their international obligations concerning the protection andpreservation of the marine environment and are liable in accordance withinternational law. States must also ensure that recourse is available in accordance with their legal systems for prompt and adequate compensationor other relief regarding damage caused by pollution of the marine environment by persons under their j u r i ~ d i c t i o n . ~ ' ~States are under a basic obligation to protect and preserve the marine
e n v i r ~ n m e n t .Article~ ' ~ 194 of the 1982 Convention also provides that:
Also avariety of regional and bilateral agreements have been signed, Churchill and Lowe,
Law of the Sea, pp. 263-4.
313 See article 211. See also generally articles 192-237, covering inter alia global and regional
co-operation, technical assistance, monitory and environmental assessment, and the development of the enforcement of international and domestic law preventing pollution.
"4 Article 235,
Article 192.
'I2

T H E LAW O F T H E S E A

555

1. States shall take, individually or jointly as appropriate, all measuresconsistent with this Convention that are necessary to prevent, reduce andcontrol pollution of the marine environment from any source, using forthis purpose the best practicable means at their disposal and in accordancewith their capabilities, and they shall endeavour to harmonise their policies
in this connection.
2. States shall take all measures necessary to ensure that activities under
their jurisdiction or control are so conducted as not to cause damage bypollution to other States and their environment, and that pollution arisingfrom incidents or activities under their jurisdiction or control does not
spread beyond the areas where they exercise sovereign rights in accordancewith this Convention.
3. The measures taken pursuant to this Part shall deal with all sources ofpollution of the marine environment. These measures shall include, interalia, those designed to minimise to the fullest possible extent:(a) the release of toxic, harmful, or noxious substances, especially thosewhich are persistent, from land-based sources, from or through theatmosphere or by dumping;(b) pollution from vessels, in particular measures for preventing accidents
and dealing with emergencies, ensuring the safety of operations atsea, preventing intentional and unintentional discharges, and regulating the design, construction, equipment, operation and manning ofvessels;(c) pollution from installations and devices used in exploitation of thenatural resources of the seabed and subsoil, in particular measuresfor preventing accidents and dealing with emergencies, ensuring thesafety of operations at sea, and regulating the design, construction,equipment, operation and manning of such installations or devices;(d) pollution from other installations and devices operating in the marine
environment, in particular for preventing accidents and dealing withemergencies, ensuring the safety of operations at sea, and regulating
the design, construction, equipment, operation and manning of such
installations or devices.
4. In taking measures to prevent, reduce or control pollution of themarine environment, states shall refrain from unjustifiable interferencewith activities carried out by other states in the exercise of their rights andin pursuance of their duties in conformity with this C ~ n v e n t i o n . ~ ~ ~'I6

See also the ~Moxcase, the International Tribunal for the Law of the Sea, Provisionaland ongoing
Measures Order of 3 December 2001, http://~ww.itlos.orgistart2~e11.11tml
arbitration, see http:/iwcvcl,.itlos.orgistart2-en.htm1.

556

I N T E R N A T I O N A L LAW

Straddling stocks3"
The freedom to fish on the high seas is one of the fundamental freedomsof the high seas, but it is not total or a b s ~ l u t e . ~The
' ' development of
exclusive economic zones has meant that the area of high seas has shrunk
appreciably, so that the bulk of fish stocks are now to be found within theeconomic zones of coastal states. In addition, the interests of such coastal
states have extended to impinge more clearly upon the regulation of thehigh seas.
Article 56(1) of the 1982 Convention provides that coastal states havesovereign rights over their economic zones for the purpose of exploring and exploiting, conserving and managing the fish stocks of the zones
concerned. Such rights are accompanied by duties as to conservation andmanagement measures in order to ensure that the fish stocks in exclusive economic zones are not endangered by over-exploitation and thatsuch stocks are maintained at, or restored to, levels which can produce
the maximum sustainable yield.319Where the same stock or stocks ofassociated species occur within the exclusive economic zones of two or
more coastal states, these states shall seek either directly or through appropriate subregional or regional organisations to agree upon the measures
See e.g. Brown, International Laiv of the Sea, vol. I, p. 226; Churchill and Lowe, Law of
the Sea, p. 305; F. Orrego Vicuna, The Changing International Law of High Seas Fisheries,
Cambridge, 1999; It'. T. Burke, The New International Law of Fisheries, Oxford, 1994;
H . Gherari, 'L'Accord de 4 aodt 1995 sur les Stocks Chevauchants et les Stocks de Poisson Grands Migrateurs', 100 RGDIP, 1996, p. 367; B. Kwiatowska, 'Creeping J~~risdiction
beyond 200 Miles in the Light of the 1982 Law of the Sea Convention and State Practice',
22 Ocearl Developvnent and International Law, 1991, p. 167; E. Miles and W. T. Burke,'Pressures on the UN Convention on the Law of the Sea 1982 Arising from New Fisheries
Conflicts: The Problem of Straddling Stocks: 20 Ocean Developnzent and InternationalLaw, 1989, p. 352; E. Meltzer, 'Global Overview of Straddling and Highly Migratory Fish
Stocks: The Nonsustainable Nature of High Seas Fisheries', 25 Ocean Developinent andInternatioilal Law, 1994, p. 256; P. G. G. Davies and C. Redgwell, 'The International
Legal Regulation of Straddling Fish Stocks', 67 BYIL, 1996, p. 199; D. H. Anderson, 'The
Straddling Stocks Agreement of 1995 - An Initial Assessment', 45 ICLQ, 1996, p. 463,
and D. Freestone and Z. Makuch, 'The New International Environmental Law of Fisheries: The 1995 United Nations Straddling Stocks Agreement', 7 Yearbook ofInternationa1
Environrrlental Law, 1996, p. 3.
See article 2 of the High Seas Convention, 1958 and articles 1 and 6 of the Geneva
Convention on Fishing and Conservation of the Living Resources of the High Seas, 1958,
and article 116 of the 1982 Convention. In particular, the freedom to fish is subject to astate's treaty obligations, to the interests and rights ofcoastal states and to the requirementsof conservation. See generally on international fisheries law, http://w~.oceai~law,net/
and above, p. 518, with regard to the Fisheries Jurisdiction case.
""rticle
61. See also article 62.

'I7

T H E LAW O F T H E S E A

557

necessary to co-ordinate and ensure the conservation and developmentof such stocks.320
Article 116(b) of the 1982 Convention states that the freedom to fishon the high seas is subject to the rights and duties as well as the interestsof coastal states as detailed above, while the 1982 Convention lays downa general obligation upon states to co-operate in taking such measures
for their respective nationals as may be necessary for the conservation of
the living resources of the high seas and a variety of criteria are laid down
for the purpose of determining the allowable catch and establishing otherconservation measures.321
A particular problem is raised with regard to straddling stocks, that isstocks offish that straddle both exclusive economic zones and high seas, for
ifthe latter were not in some way regulated, fishery stocks regularlypresent
in the exclusive economic zone could be depleted by virtue of unrestrictedfishing of those stocks while they were present on the high seas. Article
63(2) of the 1982 Convention stipulates that where the same stock orstocks of associated species occur both within the exclusive economic
zone and in an area beyond and adjacent to the zone (i.e. the high seas),
the coastal state and the states fishing for such stocks in the adjacent area
shall seek, either directly or through appropriate subregional or regionalorganisations, to agree upon the measures necessary for the conservationof these stocks in the adjacent area.
The provisions in the 1982 Convention, however, were not deemed
to be fully comprehensive322and, as problems of straddling stocks grew
more apparent,323a Straddling Stocks Conference was set up in 1993 andproduced an agreement two years later. The Agreement emphasises theneed to conserve and manage straddling fish stocks and highly migratory' l o Article 63(1). This is without prejudice to the other provisions of this Part of the 1982

Convention.

'" See articles 117-20. A series of provisions in the 1982 Convention apply with regard
to particular species, e.g. article 64 concerning highly migratory species (such as tuna);
article 65 concerning marine mammals (such as whales, for which see also the workof the International Whaling Commission); article 66 concerning anadromous species(such as salmon); article 67 concerning catadromous species (such as eels) and article 68
concerning sedentary species (which are regarded as part of the natural resources of acoastal state's continental shelf: see article 77(4)).
'22 See e.g. Burke, New Irlterrlational Law o f Fisheries, pp. 348 ff., and B. Kwiatowska, 'TheHigh Seas Fisheries Regime: At a Point of No Return?',8 International Jourrlal of Marine
and Coastal Law, 1993, p. 327.
323 E.g. with regard to the Grand Banks of Newfoundland, the Bering Sea, the Barents Sea,
the Sea of Okhotsk and off Patagonia and the Falklands, see Anderson, 'Straddling Stocks
Agreement', p. 463.

558

I N T E R N A T I O N A L LAW

species and calls in particular for the application of the precautionary
approach.324Coastal states and states fishing on the high seas shall pursue
co-operation in relation to straddling and highly migratory fish stocks
either directly or through appropriate subregional or regional organisations and shall enter into consultations in good faith and without delay at
the request of any interested state with a view to establishing appropriatearrangements to ensure conservation and management of the stocks.325
Much emphasis is placed upon subregional and regional organisations
and article 10 provides that in fulfilling their obligation to co-operate
through such organisations or arrangements, states shall inter alia agree
on measures to ensure the long-term sustainability of straddling andhighly migratory fish stocks and agree as appropriate upon participatory rights such as allocations of allowable catch or levels of fishing effort.
In particular, the establishment of co-operative mechanisms for effective monitoring, control, surveillance and enforcement, decision-making
procedures facilitating the adoption of such measures of conservation andmanagement, and the promotion of the peaceful settlement of disputes
are called for. The focus in terms of implementation is upon the flag state.
Article 18 provides that flag states shall take such measures as may be necessary to ensure that their vessels comply with subregional and regional
conservation and management measures, while article 19 provides thatflag states must enforce such measures irrespective of where violations
occur and investigate immediately any alleged violation. Article 21 deals
specifically with subregional and regional co-operation in enforcement
and provides that in any area of the high seas covered by such an organisation or arrangement, a state party which is also a member or participant
in such an organisation or arrangement may board and inspect fishingvessels flying the flag of another state party to the Agreement. This applies whether that state party is or is not a member of or a participant insuch a subregional or regional organisation or arrangement. The boarding
and visiting powers are for the purpose of ensuring compliance with theconservation and management measures established by the organisation
See articles 5 and 6 of the Straddling Stocks Agreement. See also, with regard to
this approach, below, chapter 15, p. 776. See generally o n the agreement which cameinto force o n 11 December 2001, http://wwcv.un.org/Depts/los/convention~agreements/
convention-overview-fish-stocks.htm.
325 Article 8. Note that by article l ( 3 ) the agreement 'applies mutatis rnutandis to otherfishing entities whose vessels fish o n the high seas'. This was intended to refer to Taiwan:
see e.g. Orrego Vicufia, High Seas Fisheries, p. 139, and Anderson, 'Straddling Stocks
Agreement: p. 468.
'24

T H E LAW O F T H E S E A

559

or arrangement. Where, following a boarding and inspection, there areclear grounds for believing that a vessel has engaged in activities contrary
to the relevant conservation and management measures, the inspecting
state shall secure evidence and promptly notify the flag state. The flag statemust respond within three working days and either fulfil its investigationand enforcement obligations under article 19 or authorise the inspecting state to investigate. In the latter case, the flag state must then takeenforcement action or authorise the inspecting state to take such action.
Where there are clear grounds for believing that the vessel has committed
a serious violation and the flag state has failed to respond or take action
as required, the inspectors may remain on board and secure evidence andmay require the master to bring the vessel into the nearest appropriate
port."' Article 23 provides that a port state has the right and duty to takemeasures in accordance with international law to promote the effectiveness of subregional, regional and global conservation and management~neasures.~~'One ofthe major regional organisations existingin this area is the North
Atlantic Fisheries Organisation (NAFO), which came into being following the Northwest Atlantic Fisheries Convention, 1978. The organisation
has established a Fisheries Commission with responsibility for conservation measures in the area covered by this Convention. The European
Community is a party to the Convention, although it has objected on
occasions to NAFO's total catch quotas and the share-out of such quotas
among state parties. In particular, a dispute developed with regard to theshare-out of Greenland halibut, following upon a decision by NAFO to~ ~ ~EC formally objected
reduce the EC share of this fishery in 1 9 9 5 . The
to this decision using NAFO procedures and established its own halibut
quota, which was in excess of the NAFO quota. In May 1994, Canada
had amended its Coastal Fisheries Protection Act 1985 in order to enable it to take action to prevent further destruction of straddling stocks
and by virtue of which any vessel from any nation fishing at variancewith good conservation rules could be rendered subject to Canadian action. In early 1995, regulations were issued in order to protect Greenland
halibut outside Canada's 200-mile limit from overfishing. On 9 March
1995, Canadian officers boarded a Spanish vessel fishing on the high seas
"6
327

3'8

See also article 22.
Note that by article 17(3) the fishing entities referred to in article l ( 3 ) may be requested
to co-operate with the organisations or arrangements in question.
See e.g. P. G. G. Davies, 'The ECiCanadian Fisheries Dispute in the Northwest Atlantic',
44 ICLQ, 1995, p. 927.

560

I N T E R N A T I O N A L LAW

on the Grand Banks some 245 miles off the Canadian coast. The captain
was arrested and the vessel seized and towed to a Canadian harbour. Spain
commenced an application before the International Court, but this failed
on jurisdictional grounds.329In April 1995, an agreement between the
EC and Canada was reached, under which the EC obtained an increased
quota for Greenland halibut and Canada stayed charges against the vessel
and agreed to repeal the provisions of the regulation banning Spanish andPortuguese vessels from fishing in the NAFO regulatory area. Improved
control and enforcement procedures were also agreed.330
Problems have also arisen in other areas: for example, the 'Donut Hole',
a part of the high seas in the Bering Sea surrounded by the exclusive
economic zones of Russia and theand the 'Peanut Hole', a partof the high seas in the Sea of Okhotsk surrounded by Russia's economic
zone. In 2001, the Convention on the Conservation and Management ofHighly Migratory Fish Stocks in the Western and Central Pacific Ocean
was signed. This agreement establishes a Commission to determine interalia the total allowable catch within the area and to adopt standards forfishing operations.332
The international seabed333

Introduction
In recent years the degree of wealth contained beneath the high seas has
become more and more apparent. It is estimated that some 175 billion
dry tonnes of mineable manganese nodules are in existence, scattered over"9

ICJ Reports, 1998, p 432.

""See European C o m m ~ s s ~ oPressn Release, WE/15195,20 Aprll 1995"' See the Convention on the Conservation and Management of Pollock Resources In theCentral Berlne Sea. 1994.
'" Note also the existence of other agreements with regard to specific species of fish, e.g. theuInternational Convention for the Conservation ofAtlantic Tuna, 1966; the Convention for
the Conservation of Southern Bluefin Tuna, 1993 and the Indian Ocean Tuna Commission
Agreement, 1993.
""eee.g. Brown, International Law of the Sea, vol. I , chapter 17; O'Connell, Internatiorzal
Law of the Sea, vol. I , chapter 12; Churchill and Lowe, La141of the Sea, chapter 12; E. Luard,
The Control of the Seabed, Oxford, 1974; B. Buzan, Seabed Politics, New York, 1976; T. G.
Kronmiller, The Lawfulness of Deep Seabed Mining, New York, 2 vols., 1980; E. D. Brown,
Sea-Bed Energy ar~dMineral Resourcec arld the Law of the Sea, London, 3 vols., 1986;
A. M. Post, Deepsea Mining and the Latv of the Sea, The Hague, 1983; A. D. Henchoz,

Riglernentations Nationalec et Internationales de 1'Exploration et de 1'Exploitation des Grans
Fonds Marins, Zurich, 1992; Oppenheim's International Law, p. 812, and Nguyen Quoc
Dinh et al., Droit InternationalPublic, p. 1210.

T H E L AW O F T H E S E A

561

some 15 per cent of the seabed. This far exceeds the land-based reserves ofthe metals involved (primarily manganese, nickel, copper andWhile this source of mineral wealth is of great potential importance tothe developed nations possessing or soon to possess the technical capacity to mine such nodules, it poses severe problems for developing states,
particularly those who are dependent upon the export earnings of a few
categories of minerals. Zaire, for example, accounts for over one third of
total cobalt production, while Gabon and India each account for around
8 per cent of total manganese production.335By the early 1990s, there appeared to be six major deep sea mining consortia with the participationof numerous American, Japanese, Canadian, British, Belgian, German,
Dutch and French companies.336The technology to mine is at an advanced stage and some basic investment has been made, although it isunlikely that there will be considerable mining activity for several years tocome.
In 1969, the UN General Assembly adopted resolution 2574 (XXIV)
calling for a moratorium on deep seabed activities and a year later a
Declaration of Principles Governing the Seabed and Ocean Floor andthe Subsoil Thereof, beyond the Limits of National Jurisdiction ('theArea') was adopted. This provided that the Area and its resources werethe 'common heritage of mankind' and could not be appropriated, andthat no rights at all could be acquired over it except in conformity withan international regime to be established to govern its exploration andexploitation.

The 1982 Law of the Sea Convention (Part X I )Under the Convention, the Area'" and its resources are deemed to be
the common heritage of mankind and no sovereign or other rights may
be recognised. Minerals recovered from the Area in accordance with theConvention are alienable, however.33s 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 (the Authority) established under thee.g. Seabed Mineral Resotlrce Development, UN Dept. of International Economic andSocial Affairs, 1980, STIESAI107, pp. 1-2.
Ibid., p. 3.
336 bid., pp. 10-12.
337 Defined in article 1 as the 'seabed and ocean floor and subsoil thereof beyond national
jurisdiction: This would start at the outer edge of the continental margin or at least at a
distance of 200 nautical miles from the baselines.
Articles 136 and 137.

""ee

"'

"'

j62

I N T E R N A T I O N A L LAW

on vent ion."^ The Authority is to provide for the equitable sharing ofsuch benefits.340Activities in the Area are to be carried out under article 153 by the Enterprise (i.e. the organ of the Authority establishedas its operating arm) and by states parties or state enterprises, or persons possessing the nationality of state parties or effectively controlled
by them, acting in association with the Authority. The latter 'qualified
applicants' will be required to submit formal written plans of work to
be approved by the Council after review by the Legal and TechnicalCommission."'This plan of work is to specify two sites of equal estimated commercial
value. The Authority may then approve a plan of work relating to oneof these sites and designate the other as a 'reserved site' which may only
be exploited by the Authority, via the Enterprise or in association with
developing states.342
Resolution I of the Conference established a Preparatory Commission
to make arrangements for the operation of the Authority and the International Tribunal for the Law of the
Resolution I1 of the Conference made special provision for eight 'pioneer investors', four from France, Japan, India and the USSR and four
from Belgium, Canada, the Federal Republic of Germany, Italy, Japan, theNetherlands, the UK and the USA, and possibly others from developing
states, to be given pioneer status. Each investor must have invested atleast $30 million in preparation for seabed mining, at least 10 per centof which must be invested in a specific site. Sponsoring states must provide certification that this has happened.344Such pioneer investors are to
be able to carry out exploration activities pending entry into force of theConvention with priority over the other applicants (apart from the Enterprise) in the allocation of exploitation contract^.^" India, France, Japanand the USSR were registered as pioneer investors in 1987 on behalf of"'See below, p. 566. Note that certain activities in the Area do not need the consent of the
Authority, e.g. pipeline and cable laying and scientific research not concerning seabedresources: see articles 112, 143 and 256.
Article 140. See also article 150.
j4' See also Annex 111, articles 3 and 4. Highly controversial requirements for transfer oftechnology are also included, ibid., article 5.
'42 Illid., articles 8 and 9. The production policies of the Authority are detailed in article 151of the Convention.
3" 21(4) U N Chronicle, 1984, pp. 44 ff. See also 25 ILM, 1986, p. 1329 and 26 ILM, 1987,
p. 1725.
3" See Churchill and Lowe, Law of the Sea, p. 230.
'45 See 21(4) UN Chronicle, 1984, pp. 45-7.

"'

T H E LAW O F T H E S E A

563

various con~ortia."~
China was registered as a pioneer investor in March
1 9 9 1 , while~ ~ ~ the multinational Interoceanmetal Joint Organisation was
registered as a pioneer investor in August that year.34"everal sites havebeen earmarked for the Authority, all on the Clarion-Clipperton Ridgein the North-Eastern Equatorial Pacific.
The regime for the deep seabed, however, was opposed by the UnitedStates in particular and, as a consequence, it voted against the adoptionof the 1982 Convention. The UK also declared that it would not sign
the Convention until a satisfactory regime for deep seabed mining wasestablished.349Concern was particularly expressed regarding the failure toprovide assured access to seabed minerals, lack of a proportionate voicein decision-making for countries most affected, and the problems thatwould be caused by not permitting the free play of market forces in thedevelopment of seabed resources.350

The Reciprocuting Stutes Regime
As a result of developments in the Conference on the Law of the Sea, manystates began to enact domestic legislation with the aim of establishingan interim framework for exploration and exploitation of the seabedpending an acceptable international solution. The UIZ Deep Sea Mining(Temporary Provisions) Act 1981, for example, provides for the grantingof exploration licences (but not in respect of a period before 1 July 1981)
and exploitation licences (but not for a period before 1 January 1988).
'4"ee

j4'

'"

34'

'"

LOSlPCNl97-99 (1987). See also the Understanding of 5 September 1986 making
various changes to the rules regarding pioneer operations, including extending the deadline by which the $30 million investment had to be made and establishing a Group of~ V .also~ . Brown, Internatioilal Law of the Sea,
Technical Experts, L O S I P C N I L . ~ ~ I R See
vol. I , pp. 448-54. An Understanding of 30 Ailgust 1990 dealt with training costs, transfer
of technology, expenditure on exploration and the development of a mine site for the
Authority, ibid., pp. 454-5, while an Understanding of 22 February 1991 dealt with the
avoidance of overlapping claims signed by China on the one hand and seven potential
pioneer investor states on the other (Belgium, Canada, Italy, the Netherlands, Germany,
the UK and the US), ibid., p. 455.
Brown, Internatiorlal Law of the Sea, vol. I, p. 455.
Ibid., p. 456. This organisation consisted of Bulgaria, Czechoslovakia, Poland, theRussian Federation and Cuba. See, for the full list of registered pioneer investors,
http:ll~v.isa,org.jmlenldefa~~lt.htn~.
The first fifteen-year contracts for exploration forpolymetallic nodules in the deep seabed were signed at the headquarters of the International Seabed Authority in Jamaica in March 2001, ibid.
See e.g. The Times, 16 February 1984, p. 4, and 33 HC Deb., col. 404,2 December 1982.
See e.g. the US delegate, UNChronicle, Tulle 1982, p. 16.

564

I N T E R N A T I O N A L LAW

The Act also provides for a Deep Sea Mining Levy to be paid by theholder of an exploitation licence into a Deep Sea Mining Fund. This fund
may be paid over to an international organisation for the deep seabed if
an agreement to create this has come into force for the UK. If this has
not occurred within ten years, the fund will be wound up and paid into
the Consolidated Fund. Section 3(1) provides that countries with similarl e g i ~ l a t i o n may~ ~ ' be designated as 'reciprocating countries', which would
allow for mutual recognition of licences.
A 1982 ~ g r e e m e ncallst ~ ~for~ consultations to avoid overlapping claims
under national legislation and for arbitration to resolve any dispute, whilea 1984 ~ g r e e m e n provides
t ~ ~ ~ that no party shall issue an authorisationin respect of an application or seek registration of an area included inanother application properly filedfi4 and under consideration by anotherparty; or within an area claimed in another application filed in conformity
with national law and the instant Agreement before 3 April 1984 or earlier
than the application or request for registration and which is still underconsideration by another party; or within an authorisation granted byanother party in conforming with the instant Agreement.
It is also provided that no party shall itself engage in deep seabed
operations in an area for which it shall not issue an authorisation or seekregistration, in accordance with the above provisions of the Agreement.
The Preparatory Commission, however, adopted a declaration in 1985
stating that any claim, agreement or action regarding the Area and its
resources undertaken outside the Commission itself, which is incompatible with the 1982 Convention and its related resolutions, 'shall not bere~ognised'.~'~
Nevertheless, the Agreement on the Resolution of Practical Problems with respect to Deep Sea Mining Areas was signed in 1987
between Belgium, Italy, the Netherlands, Canada and the USSR, to which" Anumber of countries adopted similar, unilateral legislation, e.g. the US in 1980,19 ILhl,
1980, p. 1003; 20 ILM, 1981, p. 1228 and 21 ILM, 1982, p. 867; West Germany, 20 ILM,
1981, p. 393 and 21 ILM, 1982, p. 832; the USSR, 21 ILM, 1982, p. 551; France, 21 ILM,
1982, p. 808; Japan, 22 ILM, 1983, p. 102, and Italy in 1985: see Brown, International Lawof the Sea, vol. I, pp. 456 ff'j2 The 1982 Agreement Concerning Interim Arrangements Relating to Polymetallic Nodulesof the Deep Seabed (France, Federal Republic of Germany, UK, US), 21 ILM, 1982, p. 950.
"' Provisional Understanding Regarding Deep Seabed Mining (Belgium, France, Federal
Republic of Germany, Italy, Japan, Netherlands, UK, US), 23 ILM, 1984, p. 1354. Thiswas signed on 3 August 1984 and entered into force on 2 September 1984.
"4 1.e. in conformity with the agreement for voluntary conflict resolution reached on 18
May 1983 and 15 December 1983.
See Lazv o f t h e Sea Btllletin, no. 6 , October 1985, p. 85.

"'

T H E LAW O F T H E S E A

565

were attached Exchanges of Notes involving also the USA, UK and theFederal Republic of
It constituted an attempt to prevent
overlapping claims as between states within the Convention system andother states with regard to the Clarion-Clipperton Zone of the NorthEastern Equatorial Pacific, there being a particular problem, for example,
between overlapping French and USSR claims."'

The 1994 Agreement on Implementation of the Seabed Provisionsof the Convention on the Law of the s ~ K ' ' ~Attempts to ensure the universality of the 1982 Convention system andthus prevent the development of conflicting deep seabed regimes began inearnest in 1990 in consultations sponsored by the UN Secretary-General,with more flexibility being shown by states.359Eventually, the 1994 Agreement emerged. The states parties undertake in article 1 to implement PartXI of the 1982 Convention in accordance with the Agreement. By article 2, the Agreement and Part XI are to be interpreted and applied together
as a single instrument and, in the event of any inconsistency, the provisions in the former document are to prevail. States can only express theirconsent to become bound by the Agreement if they at the same time orpreviously express their consent to be bound by the Convention. Thus,
conflicting systems operating with regard to the seabed became impossible. The Agreement also provides in article 7 for provisional application
if it had not come into force on 16 November 1994 (the date on which
the Convention came into force).360The Agreement was thus able tobe provisionally applied by states that had consented to its adoption in
the General Assembly, unless they had otherwise notified the depositary(the UN Secretary-General) in writing; by states and entities signing the" 26 ILhl, 1987, p. 1502.

'"

See also 25 ILhl, 1986, p. 1326 and26 ILhl, 1987, p. 1725.
33 ILM, 1994, p. 1309. See also B. H. Oxman, 'The 1994 Agreement and the Convention',
88 AJIL, 1994, p. 687; L. B. Sohn, 'International Law Implications of the 1994 Agreement',
ibid.,17. 696; J. I. Charney, 'US Provisional Application of the 1994 Deep Seabed Agreement: ibid.,p. 705; D.H. Anderson, 'Further Efforts to Ensure Universal Participation in
the United Nations Convention on the Law ofthe Sea', 43 ICLQ, 1994, p. 886, and Reportof the UN Secretary-General, Al501713, 1 November 1995.
ji9 See e.g. D. H. Anderson, 'Efforts to Ensure Universal Participation in the United Nations
Convention o n the Law of the Sea', 42 ICLQ, 1993, p. 654, and Brown, International Lawof the Sea, vol. I, p. 462.
The Agreement came into force o n 28 J~tly1996, being thirty days after the date o n which
forty states had established their consent to be bound under procedures detailed in articles
4 and 5.
j5'

'"

566

I N T E R N A T I O N A L LAW

agreement, unless they had otherwise notified the depositary in writing;by states and entities which had consented to its provisional application
by so notifying the depositary in writing; and by states which had accededto the Agreement.
The Annex to the Agreement addresses a number of issues raised bydeveloped states. In particular, it is provided that all organs and bodies
established under the Convention and Agreement are to be cost-effective
and based upon an evolutionary approach taking into account the functional needs of such organs or bodies; a variety of institutional arrangements are detailed with regard to the work of the International Seabed
Authority (section 1); the work of the Enterprise is to be carried out initially by the Secretariat of the Authority and the Enterprise shall conduct
its initial deep seabed mining operations through joint ventures that accord with sound commercial principles (section 2); decision-making in
the Assembly and Council of the Authority is to comply with a series of
specific rules361(section 3); the Assembly upon the recommendation of
the Council may conduct a review at any time of matters referred to inarticle 155(1) of the Convention, notwithstanding the provisions of that
article as a whole (section 4); and transfer of technology to the Enterpriseand developing states is to be sought on fair and reasonable commercial terms on the open market or through joint-venture arrangements(section 5).362

The International Seabed ~ u t h o r i t ~ ~ ~ ~The Authority is the autonomous organisation which the states parties
to the 1982 Convention have agreed is to organise and control activities
in the Area, particularly with a view to administering its resource^."^It became fully operational in June 1996. The principal organs of theNote especially the increase in the role of the Council vis-a-vis the Assembly with regard
to general policy matters. Note also that the Agreement guarantees a seat on the Council
for the state 'on the date of entry into force of the Convention having the largest economy
in terms of gross domestic product', i.e. the US (section 3, para. l j a ) , and establishesgroups of states on the Council of states with particular interests (section 3, paras. 10
and 15).
'62 Thus, the provisions in the Convention on the mandatory transfer of technology are
not to apply (section 5, para. 2 ) . Note also that provisions in the Convention regarding
production ceilings and limitations, participation in commodity agreements, etc. are not
to apply (section 6, para. 7 ) .
363 Details of the Authority may be found at http://uw.isa.org.jm/en/default.htm.
'64 Article 157.
j6'

T H E LAW O F T H E S E A

567

Authority are the Assembly, the Council and the Secretariat. Also to be
noted are the Legal and Technical Commission and the Finance Committee. The Assembly is composed of all members of the Authority, i.e.
all states parties to the Convention, and is currently 141 strong."' The
Assembly is the supreme organ of the Authority with powers to elect interalia the Council, Secretary-General and the members of the Governing
Boards of the Enterprise and its Director-General, to establish subsidiaryorgans and to assess the contributions of members to the administrative
budget. It has the power to establish the general policy ofthe ~ u t h o r i t ~ . ~ ~ ~The Council consists of thirty-six members elected by the Assembly inaccordance with certain criteria3" The Council is the executive organ of
the Authority and has the power to establish the specific policies to be
pursued by the Authority."' The Council has two organs, an Economic
365 AS at December 2002. See article 159(1).

Article 160. However, the effect of the 1994 Agreement on Implementation has been to
reduce the poTver of the Assembly in favour of the Council by providing in Annex, section
3 that decisions ofthe Assembly in areas for which the Co~ulcilalso has competence or on
any administrative, budgetary or financial matter be based upon the recommendations of
the Council, and ifthese recomineildatioils are not accepted, the matter has to be returnedto the Council. Further, this section also provides that, as a general rule, decision-making
in the organs of the Authority should be by consensus.
?" Article 161(1) provides for members to be elected in the following order: (a) four members from among those states parties which, during the last five years for which statistics
are available, have either consumed more than 2 per cent of total world consumption or
have had net imports of more than 2 per cent of total world imports of the commodities
produced from the categories of minerals to be derived from the Area, and in any case one
state from the Eastern European (Socialist) region, as well as the largest consumer; (b)four members from among the eight states parties which have the largest investments in
preparation for and in the conduct of activities in the Area, either directly or through theirnationals, including at least one state from the Eastern European (Socialist) region; (c)four members from among states parties which, on the basis of production in areas under
their jurisdiction, are major net exporters of the categories of minerals to be derived fromthe Area, including at least two developing states wllose exports of such minerals havea substantial bearing upon their economies; (d) six members from among developing
states parties, representing special interests. The special interests to be represented shall
include those of states with large populations, states which are landlocked or geographically disadvantaged, states which are major importers of the categories of minerals to be
derived from the Area, states which are potential producers of such minerals, and least
developed states; (e) eighteen members elected according to the principle of ensuring an
eq~litablegeographical distribution of seats in the Council as a whole, provided that eachgeographical region shall have at least one member elected under this subparagraph. For
this purpose, the geographical regions shall be Africa, Asia, Eastern European (Socialist),
Latin America and \4Testeri1 European and Others.
368 Article 162. In some cases, Council decisions have to be adopted by consensus and inothers by two-thirds majority vote: see article 161.
'66

568

I N T E R N A T I O N A L LAW

Planning Commission and a Legal and TechnicalThe
organ of the Authority actually carrying out activities in the Area is the~nterprise."~Settlement of disputes 3"
The 1982 Convention contains detailed and complex provisions regarding
the resolution of law of the sea disputes. Part XV, section 1 lays down thegeneral provisions. Article 279 expresses the fundamental obligation tosettle disputes peacefully in accordance with article 2(3) ofthe UN Charterand using the means indicated in article 33,372but the parties are able tochoose methods other than those specified in theStates of
the European Union, for example, have agreed to submit fisheries disputes
amongst member states to the European Court of Justice under the EEC
Treaty. Article 283 of the Convention provides that where a dispute arises,
the parties are to proceed 'expeditiously to an exchange of views regarding
its settlement by negotiation or other peaceful means' and article 284
states that the parties may resort if they wish to conciliation procedures,in which case a conciliation commission will be established, whose reportwill be n ~ n - b i n d i nWhere~ . ~ ~ no
~ settlement is reached by means freely
chosen by the parties, the compulsory procedures laid down in Part XV,
section 2 become ~perative.~"Upon signing, ratifying or acceding to
the Convention, or at any time thereafter, a state may choose one of thefollowing means of dispute settlement: the International Tribunal for the
Law ofthe
the International Court of ~ustice,~"an arbitral tribunal
j6'

Articles 163-5. As to the secretariat, see articles 166-9.

170 See article 170 and Annex IV.

See e.g. J. G. Merrills, Internatior~alUisp~~teSettlement, 3rd edn, Cambridge, 1998, chapter
8; Churchill and Lowe, Law ofthe Sen, chapter 19; 1. Collier and A. V. Lowe, The Settlementof Disputes in lnternatiorlal Lmv, Oxford, 1999, chapter 5; A. E. Boyle, 'Dispute Settlement and the Law ofthe Sea Convention: Problems of Fraglnentation and rurisdiction: 46
ICLQ, 1997, p. 37; R. Ranjeva, 'Le Reglement des Diffkrends' in Trnite du iVouverzu Droit
de laA4er (eds. R. J.Dupuy and D. Vignes), Paris, 1985, p. 1105; J. P. Qukneudec, 'Le Choix
des Prockdures de RPglement des Diffkrends selon la Convention des NU sur le Droit dela Mer' in Melanges Virally, Paris, 1991, p. 383, and A. 0.Adede, The System for the Settlement ofDisputes under the United Nations Coizvention orz the Law ofthe Sea, Dordrecht,
1987.
373 Article 280.
3'2 See further below, chapter 18.
37"eeAnnex V, Section 1.
'75 See articles 286 and 287.
z76 Annex VI. See further o n the Interndtiond Tribunal, below, chapter 19.
'" See below, chapter 19.

T H E LAW O F T H E S E A

569

under Annex ~ 1 1 or~ a' special~
arbitral tribunal under Annex VIII for
specific disputes.379
There are some exceptions to the obligation to submit a dispute to oneof these mechanisms in the absence of a freely chosen resolution processby the parties. Article 297(1) provides that disputes concerning the exercise by a coastal state of its sovereign rights or jurisdiction in the exclusive
economic zone may only be subject to the compulsory settlement procedure in particular cases.380Article 297(2) provides that while disputes
concerning marine scientific research shall be settled in accordance withsection 2 of the Convention, the coastal state is not obliged to accept thesubmission to such compulsory settlement of any dispute arising out of
the exercise by the coastal state of a right or discretion to regulate, authorise and conduct marine scientific research in its economic zone oron its continental shelf or a decision to order suspension or cessationof such research.381Article 297(3) provides similarly that while generally
disputes with regard to fisheries shall be settled in accordance with section 2, the coastal state shall not be obliged to accept the submission tocompulsory settlement of any dispute relating to its sovereign rights withrespect to the living resources in the exclusive economic zone or their
exercise, including its discretionary powers for determining the allowable
378 This procedure covers both disputes concerning states and those concerninginternationalorganisations, such as the European Union. A five-person Tribunal is chosen by the parties
from a panel to which each state party may make up to four nominations.
1.e. relating to fisheries, protection and preservation of the marine environment, rnarine scientific research, or navigation, including pollution from vessels and by dumping:see article 1, Annex VIII. The nomination process is slightly different from Annex VII
situations.
jX0 That is, with regard to an allegation that a coastal state has acted in contravention of theprovisions ofthe Convention in regard to the freedoms and rights of navigation, overflightor the laying of submarine cables and pipelines, or in regard to other internationally la~.vful
uses of the sea specified in article 58; or when it is alleged that a state in exercising these
freedoms, rights or uses has acted in contravention of the Convention or of laws or
regulations adopted hy the coastal state in conformity with the Convention and otherrules ofinternational law not incompatible with the Convention; or when it is alleged thata coastal state has acted in contravention of specified international rules and standards forthe protection and preservation of the marine environment ~vhichare applicable to thecoastal state and which have been established by the Convention or through a competentinternational organisation or diplomatic conference in accordance with the Convention.
In such a case, the dispute is to be subnlitted to the compulsory conciliation provisions
under Annex V, section 2, provided that the conciliation commission shall not call inquestion the exercise by the coastal state of its discretion to designate specific areas
as referred to in article 246, paragraph 6, or of its discretion to withhold consent inaccordance with article 246, paragraph 5.

"'

570

I N T E R N A T I O N A L LAW

catch, its harvesting capacity, the allocation of surpluses to other states
and the terms and conditions established in its conservation and management laws and regulation^."^^ There are also three situations with regard
to which states may opt out of the compulsory settlement procedures.383
The Convention also provides for a Seabed Disputes Chamber of theInternational Tribunal for the Law of the Sea,"' which under article 187
shall have jurisdiction with regard to matters concerning the Deep Seabedand the International Seabed Authority. By article 188, inter-state disputes
concerningthe exploitation ofthe international seabed are to be submitted
only to the Seabed Disputes Chamber.
One problem that has arisen has been where a dispute arises under one
or more conventions including the 1982 Law of the Sea Convention, andthe impact that this may have upon dispute settlement. In the Southern
Bluefin Tuna case between Australia and New Zealand on the one hand
and Japan on the other,385the arbitration tribunal had to consider theeffect of the 1993 Convention for the Conservation of Southern Bluefin
Tuna, the binding settlement procedures of which require the consent
of all parties to the dispute. However, these states were also parties tothe 1982 Convention, the provisions of which concerning highly migratory fish stocks (which included the southern bluefin tuna) referred tocompulsory arbitration.386The parties were unable to agree within theCommission established by the 1993 Convention and the applicants invoked the compulsory arbitration provisions of the 1982 Convention. The
International Tribunal for the Law of the Sea indicated provisional meas u r e ~ and~ ~ 'the matter went to arbitration. Japan argued that the dispute
was one under the 1993 Convention so that its consensual settlement procedures were a p p l i ~ a b l e and' ~ ~ not the compulsory procedures under the1982 Convention. The tribunal held that the dispute was one common toboth Conventions and that there was only one dispute. Article 281(1) of
the 1982 Convention provides essentially for the priority of procedures
agreed to by the parties, so that the 1982 Convention's provisions would"> In such a case, the dispute in certain cases is to be submitted to the compulsory conciliation
provisions under Annex 17, section 2: see further article 297(3)(b).
3' Disputes concerning delimitation and claims to historic waters; disputes concerning military and law enforcement activities, and disputes in respect ofwhich the Security Council
is exercising its functions: see article 298(1).
386 See Part XLr and Annex VII.
384 See Annex VI, section 4.
385 119 ILR, p. 508.
117 ILR, p. 148. The International Tribunal called for arbitration and stated that the latter
tribunal u,ould prirna facie have jurisdiction.
See article 16 of the 1993 Convention.

'"'"

T H E LAW O F T H E S E A

57l

only apply where no settlement had been reached using the other meansagreed by the parties and the agreement between the parties does not exclude any further procedure. Since article 16 of the 1993 Convention fellwithin the category of procedures agreed by the parties and thus within
article 281(1), the intent and thus the consequence of article 16 was to remove proceedings under that provision from the reach of the compulsory
procedures of the 1982 onv vent ion.'^^ Accordingly, the extent to which
the compulsory procedures of the 1982 Convention apply depends on thecircumstances and, in particular, the existence and nature of any otheragreement between the parties relating to peaceful settlement.390
Outside the framework of the 1982 Convention, states may adopt avariety of means of resolving disputes, ranging from negotiations, i n q ~ i r i e s , ~ "conciliation,3v2arbitration,""?nd submission to the International Courtof ~ u s t i c e . ~ ~ ~Suggestions for further reading
R. Churchill and A. V. Lowe, Tlze Law of the Sea, 3rd edn, Manchester, 1999
International Maritime Boundaries (eds. J. I. Charney and L. M. Alexander), Washington, vols. 1-111, 1993-8, and ibid., (eds. J. I. Charney and R. W. Smith),

vol. IV, 2002
389 See 119 ILR, pp. 549-52.

See also B. Oxman, 'Complementary Agree~nentsand Compulsory Jurisdiction: 95 AJIL,
2001, p. 277. Note that the Arhitral Trihunal established under AnnexVII of the Convention in the Mox case, between Ireland and the UK, suspended hearings on 13 June 2003
due to uncertainty as to whether relevant provisions of the Convention fell within thecompetence of the European Community or member states. Thus issues as to the relative
jurisdiction of the Tribunal and the EC Court of Justice were raised and clarification was
therefore required: see press release of 17 June 2003.
E.g. the Red Crinsader incident, 35 ILR, p. 485. See further on these mechanisms, below,
chapters 18 and 19.
192 E .g. the Jan Mayen Island Continental Shelfdispute, 20 ILM, 1981, p. 797; 62 ILR, p. 108.
j90

'"
j9'

E.g. the Anglo-French Continental Shelfcase, Cmnd 7438; 54 ILR, p. 6.

'" E.g. the Anglo-Norwegiaiz Fisheriescase, ICT Reports, 1951, p. 116; 18 ILR, p. 84; the North
Sea Coiltineiital Shelfcases, ICJ Reports, 1969, p. 16; 41 ILR, p. 29 and others referred toin this chapter.

Jurisdiction

Jurisdiction concerns the power of the state to affect people, property
and circumstances and reflects the basic principles of state sovereignty,
equality of states and non-interference in domestic affairs.' Jurisdiction isa vital and indeed central feature of state sovereignty, for it is an exercise
of authority which may alter or create or terminate legal relationships
and obligations. It may be achieved by means of legislative action or by
executive action or by judicial action. In each case, the recognised authorities of the state as determined by the legal system of that state perform
certain functions permitted them which affect the life around them invarious ways. In the UK, Parliament passes binding statutes, the courts
make binding decisions and the administrative machinery of government
has the power and jurisdiction (or legal authority) to enforce the rulesof law. These differences, particularly between the capacity to make law(the prescriptive jurisdiction) and the capacity to ensure compliance withsuch law (the enforcement jurisdiction), are basic to an understanding of
the legal competence of a state. This is to some extent because jurisdiction, although primarily territorial, may be based on other grounds, forexample nationality, while enforcement is restricted by territorial factors.
To give an instance, if a man kills somebody in Britain and then manages to reach the Netherlands, the British courts have jurisdiction to try' See e.g. M. Akehurst, 'Jurisdiction in International Law', 46 BYIL, 1972-3, p. 145; F. A.
Mann, 'The Doctrine of J~lrisdictionin International Law', 111 HR, 1964, p. 1, and Mann,'The Doctrine of Jurisdiction in International Law Revisited After Twenty Years', 186 HR,
1984, p. 9; D. W. Bowett, 'J~lrisdiction:Changing Problems of Authority over Activities
and Resources', 53 BYIL, 1982, 17. 1; R. Y. Jennings, 'Extraterritorial Jurisdiction and theUnited States Antitrust Laws', 33 BYIL, 1957, p. 146; Oppenheittl's Iriternatiotlal Law (eds.
R. Y. Jennings and A. D. Watts), 9th edn, London, 1992, pp. 456 ff.; I. Brownlie, Principlesof Ptlblic Irlterrlational Law, 5th edn, Oxford, 1998, chapters 14 and 15; L. Henkin, R. C.
Pugh, 0 . Schachter and H. Smit, International Law Cases and ~Materials,3rd edn, St Paul,
1993, chapter 12; 0.Schachter, International Law in Theory and Practice, Dordrecht, 1991,
chapter 12, and R. Higgins, Problems and Process, Oxford, 1994, chapter 4. See also Third
US Restatement of Foreign Relations Law, 1987, vol. I, part IV.

him, but they cannot enforce it by sending officers to the Netherlands
to apprehend him. They must apply to the Dutch authorities for his arrest and dispatch to Britain. If, on the other hand, the murderer remains
in Britain then he may be arrested and tried there, even if it becomesapparent that he is a ~ e r m a nnational. Thus, while prescriptive jurisdiction (or the competence to make law) may be exercised as regards events
happening within the territorial limits irrespective of whether or not theactors are nationals, and may be founded on nationality as in the case of a
British subject suspected of murder committed abroad who may be tried
for the offence in the UK (if he is found in the UK, of course), enforcement
jurisdiction is another matter entirely and is essentially restricted to thepresence of the suspect in the territorial l i m i k 2
However, there are circumstances in which it may be possible to apprehend a suspected murderer, but the jurisdictional basis is lacking. For
example, if a Frenchman has committed a murder in Germany he cannot
be tried for it in Britain, llotwithstandi~lghis presence in the country, although, of course, both France and Germany may apply for his extradition
and return to their respective countries from Britain.
Thus, while jurisdiction is closely linked with territory it is not exclusively so tied. Many states have jurisdiction to try offences that have takenplace outside their territory, and in addition certain persons, property
and situations are immune from the territorial jurisdiction in spite of being situated or taking place there. Diplomats, for example, have extensive
immunity from the laws of the country in which they are working3 andvarious sovereign acts by states may not be questioned or overturned in
the courts of a foreign country.4
The whole question of jurisdiction is complex, not least because of therelevance also of constitutional issues and conflict of laws rules. International law tries to set down rules dealing with the limits of a state's exerciseof governmental functions while conflict of laws (or private internationallaw) will attempt to regulate in a case involving a foreign element whether
they articular country has jurisdiction to determine the question, and secondly, if it has, then the rules ofwhich country will be applied in resolving
the dispute.
The grounds for the exercise of jurisdiction are not identical in thecases of international law and conflict of laws rules. In the latter case,
Reference has also been made to the jurisdiction to adjudicate, whereby persons or things
are rendered subject to the process of a state's court system: see Third US Restatement of
Foreign Relations Law, p. 232.
See below, chapter 13, p. 668.
'' Ibid., p. 621.

574

I N T E R N A T I O N A L LAW

specific subjects may well be regulated in terms of domicile or residence(for instance as regards the recognition of foreign marriages or divorces)
but such grounds would not found jurisdiction where international law
matters were concerned.' Although it is by no means impossible or in
all cases difficult to keep apart the categories of international law andconflict of laws, nevertheless the often different definitions of jurisdiction
involved are a confusing factor.
One should also be aware ofthe existence of disputes as to jurisdictional
competence within the area of constitutional matters. These problems
arise in federal court structures, as in the United States, where conflicts
as to the extent of authority of particular courts may arise.
While the relative exercise of powers by the legislative, executive andjudicial organs of government is a matter for the municipal legal andpolitical system, the extraterritorial application ofjurisdiction will depend
upon the rules of international law, and in this chapter we shall examine
briefly the most important of these rules.

The principle of domestic jurisdiction6
It follows from the nature of the sovereignty of states that while a stateis supreme internally, that is within its own territorial frontiers, it must
not intervene in the domestic affairs of another nation. This duty of
non-intervention within the domestic jurisdiction of states provides forthe shielding of certain state activities from the regulation of international law. State functions which are regarded as beyond the reach ofinternational legal control and within the exclusive sphere of state management include the setting of conditions for the grant of nationality
and the elaboration of the circumstances in which aliens may enter thecountry.
However, the influence of international law is beginning to make itself
felt in areas hitherto regarded as subject to the state's exclusive jurisdiction.
For example, the treatment by a country of its own nationals is now viewed
in the context of international human rights regulations, although inpractice the effect of this has often been d i ~ a p p o i n t i n ~ . ~' See generally, G. C. Cheshire and P. M. North, Private International Latv, 13th edn, London,'

1999. Questions also arise as to the conditions required for leave for service abroad: see e.g.
Al-Adsani v. Government of Kuwait and Others, 100 ILR, p. 465.
See e.g. Brownlie, Principlec, p. 293, and M. S. Rajan, United Nations and Domestic Jurisdiction, 2nd edn, London, 1961. See further above, chapter 4.
See above, chapters 6 and 7.

Domestic jurisdiction is a relative concept, in that changing principles
of international law have had the effect of limiting and reducing its extent8
and in that matters of internal regulation may well have international
repercussions and thus fall within the ambit of international law. Thislatter point has been emphasised by the International Court of Justice.
yIn the Anglo-Norwegian Fisheries case it was stressed that:[allthough it is true that the act of delimitation [of territorial waters] isnecessarily a unilateral act, because only the coastal state is competent toundertake it, the validity of the delimitation with regard to other states
depends upon international law."

The principle was also noted in the Nottebohm case,'' where the Court
remarked that while a state may formulate such rules as it wished regarding
the acquisition of nationality, the exercise of diplomatic protection upon
the basis of nationality was within the purview of international law.
In addition, no state may plead its municipal laws as a justification forthe breach of an obligation of international law.12
Accordingly, the dividing line between issues firmly within domestic
jurisdiction on the one hand, and issues susceptible to international legal
regulation on the other, is by no means as inflexible as at first may appear.
Article 2(7) of the UN Charter declares that:[nlothing contained in the present Charter shall authorise the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the members to submit such mattersto settlement under the present Charter.

This paragraph, intended as a practical restatement and reinforcementof domestic jurisdiction, has constantly been reinterpreted in the decades
since it was first enunciated. It has certainly not prevented the United
Nations from discussing or adopting resolutions relating to the internal
policies of member states and the result of over fifty years of practice has
been the further restriction and erosion of domestic jurisdiction.
I11 the late 1940s and 1950s, the European colonial powers fought a losing battle against the United Nations debate and adoption of resolutions
concerning the issues of self-determination and independence for their
Whether a matter is or is not within the domestic jurisdiction of states is itself a questions Morocco case, PCIJ, Series B,
for international law: see Nationality Decrees in T ~ n i andNO. 4, 1923, pp. 7,23-4; 2 AD, pp. 349, 352.
ICJ Reports, 1951, p. 116; 18 ILR, p. 86.
l o ICJ Reports, 1951, p. 132; 18 ILR, p. 95.
l 1 ICJ Reports, 1955, pp. 4, 20-1; 22 ILR, pp. 349, 357.
l 2 See above, chapter 4, p. 124.

'

576

I N T E R N A T I O N A L LAW

colonies. The involvement of the United Nations in human rights matters
is constantly deepening and, until their disappearance, South Africa's domestic policies of apartheid were continually criticised and condemned.
The expanding scope of United Nations concern has succeeded in further
limiting the extent of the doctrine of domestic juri~diction.'~
Nevertheless, the concept does retain validity in recognising the basic fact that statesovereignty within its own territorial limits is the undeniable foundationof international law as it has evolved, and of the world political and legal
system.14

Legislative, executive and judicial jurisdiction
Legislative jurisdiction'" refers to the supremacy of the constitutionallyrecognised organs of the state to make binding laws within its territory.
Such acts of legislation may extend abroad in certain ~ircumstances.'~
The state has legislative exclusivity in many areas. For example, a statelays down the procedural techniques to be adopted by its various organs,such as courts, but can in no way seek to alter the way in which foreign
courts operate. This is so even though an English court might refuse torecognise a judgment of a foreign court on the grounds of manifest bias.
An English law cannot then be passed purporting to alter the procedural
conditions under which the foreign courts operate.
International law accepts that a state may levy taxes against persons notwithin the territory of that state, so long as there is some kind of real link
between the state and the proposed taxpayer, whether it be, for example,
nationality or domicile.'' A state may nationalise foreign-owned property
situated within its borders," but it cannot purport to take over foreignowned property situated abroad. It will be obvious that such a regulation
could not be enforced abroad, but the reference here is to the prescriptive
jurisdiction, or capacity to pass valid laws.
The question of how far a court will enforce foreign legislation is acomplicated one within, basically, the field of conflict of laws, but in" See e.g. R. Higgins, The Developrnerlt of Internatiorlal Latv Through the Political Organ5 o f

the United Nutioris, Oxford, 1963. See also the view of the British Foreign Secretary on 27
ranuary 1993 that article 2 ( 7 ) was 'increasingly eroded as humanitarian concerns prevailover the respect for each nation's right to manage or mis-manage its affairs and its subjects',
UKMIL, 64 BYIL, 1993, p. 599.
'"ote
also the importance of the doctrine of the exhaustion of domestic remedies: see
above, chapter 6, p. 254.
' j See e.g. Akehurst, 'Jurisdiction', pp. 179 ff.
l6 See further below, p. 611.
l7 Akehurst, 'Jurisdiction', pp. 179-80.
l8 See below, chapter 14, p. 737.

practice it is rare for one state to enforce the penal or tax laws of anotherstate.19
Although legislative supremacy within a state cannot be denied, it may
be challenged. A state that adopts laws that are contrary to the provisionsof international law, for example as regards the treatment of aliens or
foreign property within the country, will render itself liable for a breachof international law on the international scene, and will no doubt finditself faced with protests and other action by the foreign state concerned. It
is also possible that a state which abuses the rights it possesses to legislate
for its nationals abroad may be guilty of a breach of international law.
For example, if France were to order its citizens living abroad to drive
only French cars, this would most certainly infringe the sovereignty andindependence of the states in which such citizens were residing and would
constitute an illegitimate exercise of French legislative j~risdiction.~'Executive jurisdiction relates to the capacity of the state to act within
the borders of another state.21Since states are independent of each otherand possess territorial sovereignty,22it follows that generally state officials
may not carry out their functions on foreign soil (in the absence of express
consent by the host state)23and may not enforce the laws of their state
upon foreign territory. It is also contrary to international law for stateagents to apprehend persons or property abroad. The seizure of the Nazi
criminal Eichmann by Israeli agents in Argentina in 1960 was a clear
breach ofargentha's territorial sovereignty and an illegal exercise of Israeli
j ~ r i s d i c t i o n . ~ ~ i m i l a rthel y , unauthorised entry into a state of militaryforces of another state is clearly an offence under international law.
l9 See e.g. Cheshire and North, Private International Law, chapter 8. English courts in general~villnot enforce the penal laws of foreign states. It will be for the court to decide what aforeign penal law is. See also Hzliztington v. Attrill 118931 AC 150, and Marshall CJ, The
Antelope 10 Wheat 123 (1825). As far as taxlaws are concerned, see Government ofIndia v.
Taylor 119551 AC 491; 22 ILR, p. 286. See in addition Attorney-General of New Zealaizd v.
Ortiz 119821 3 All ER 432; 78 ILR,p. 608, particularly Lord Denning, and ibid. 119831 3
All ER 93 (House of Lords); 78 ILR, p. 631. See also Willianzs ch Humbert v. I V ei- H Trade
Marks [I9851 2 All ER 619 and 119861 1 All ER 129 (House of Lords); 75 ILR, 17.269, andRe State ofLVor~uay's
Application [1986] 3 WLR 452 and [1989] 1 All ER 745,760-2 (Houseof Lords). See also above, 17. 167.
20 See Mann, 'Doctrine of rurisdiction: pp. 36-62.
21 See Akehurst, 'Jurisdiction', 17. 147.
22 See e.g. Lotus case, PCIJ, Series A, No. 10,1927, p. 18; 4 AD, p. 153, and the Islarid ofPalrnas
case, 2 RIAA, pp. 829,838 (1928); 4 AD, p. 103.
2' This cannot, of course, be taken too far. An official would still be entitled, for example, tosign a contract: see Akehurst, 'Jurisdiction', p. 147.
24 See further below, p. 604.

578

I N T E R N A T I O N A L LAW

Judicial jurisdiction2' concerns the power of the courts of a particularcountry to try cases in which a foreign factor is present. There are anumber of grounds upon which the courts of a state may claim to exercise
such jurisdiction. In criminal matters these range from the territorial
principle to the universality principle and in civil matters from the mere
presence of the defendant in the country to the nationality and domicile
principles. It is judicial jurisdiction which forms the most discussed aspectof jurisdiction and criminal questions are the most important manifestation of this.
Civil j ~ r i s d i c t i o n ~ ~Although jurisdiction in civil matters is enforced in the last resort by
the application of the sanctions of criminal law, there are a number ofdifferences between civil and criminal issues in this context.
In general it is fair to say that the exercise of civil jurisdiction has
been claimed by states upon far wider grounds than has been the case incriminal matters, and the resultant reaction by other states much more
muted.27 This is partly due to the fact that public opinion is far moreeasily roused where a person is tried abroad for criminal offences than if
a person is involved in a civil case.
In common law countries, such as the United States and Britain, theusual basis for jurisdiction in civil cases remains service of a writ upon
the defendant within the country, even if the presence of the defendantis purely temporary and coincidental." In continental European countries on the other hand, the usual ground for jurisdiction is the habitualresidence of the defendant in the particular state.
Many countries, for instance the Netherlands, Denmark and Sweden,
will allow their courts to exercise jurisdiction where the defendant inany action possesses assets in the state, while in matrimonial cases thecommonly accepted ground for the exercise of jurisdiction is the domicile
or residence of the party bringing the action.29'' See e.g. Akehurst, 'Jurisdiction', pp. 152 ff.
l6 Ibid., pp. 170 ff.; Mann, 'Doctrine of Turisdiction: pp. 49-51, and Brownlie, Principles, p.

302. See also Bowett, 'Jurisdiction: pp. 1-4.

*' See e.g. Akehurst, 'Jurisdiction', pp. 152 ff.
'9

See e.g. Muharanee ofBurodu v. Iliildenstein [I9721 2 All ER 689. See also the Civil Jurisdiction and Tudgments Act 1982.
See, for example, the 1970 Hague Convention on the Recogllitioll of Divorces and Legal
Separations.

In view of, for example, the rarity of diplomatic protests and the relative
absence of state discussions, some writers have concluded that customaryinternational law does not prescribe any particular regulations as regards
the restriction of courts' jurisdiction in civil matters.30

Criminal jurisdiction3'
The application by municipal courts of their own powers and the rulesof their state to cases involving foreign persons, property or events is a
crucial topic although complicated by the convergence of principles frominternational law and conflict of laws. A number of definite principles
upon which to base jurisdiction have emerged, with varying degrees of
support and of different historical legitimacy.

T h e territorial principle
This concept reflects one aspect of the sovereignty exercisable by a state
in its territorial home, and is the indispensable foundation for the application of the series of legal rights that a state possesses.32That a country
should be able to prosecute for offences committed upon its soil is a logical manifestation of a world order of independent states and is entirely
reasonable since the authorities of a state are responsible for the conductof law and the maintenance of good order within that state. It is also highly
convenient since in practice the witnesses to the crime will be situated in
the country and more often than not the alleged offender will be there
too.33See e.g. Akehurst, 'Jurisdiction', p. 177. Cf. Rlann, 'Doctrine of Jurisdiction', pp. 49-51,
pp. 3-4.
and see also Brownlie, Principles, p. 303, and Bowett, 'J~~risdiction',
See e.g. Akehurst, 'Jurisdiction', pp. 152 ff.; hlann, 'Doctrine of Jurisdiction', pp. 82 ff., and
D. P. O'Connell, International Law, 2nd edn, London, 1970, vol. 11, pp. 823-31.
'j See Lord hlacmillan, Cotnpania Akzviera Vascongado v. Cristina SS [I9381 AC 485,496-7;
9 AD, pp. 250, 259. Note also Bowett's view that the 'dynamism and adaptability of theprinciple in recent years has been quite remarkable: 'rurisdiction: p. 5, and hfarshall CJ
in The Schooner Excllar~gev. lMcFaddori 7 Cranch 116, 136 (1812) to the effect that '[t] hejurisdiction of the nation within its own territory is necessarily exclusive and absolute'.
Donaldson Lr also pointed to the general presumption in favour of the territoriality ofjurisdiction, R v. West Yorkshire Coroner, ex parte Srnitll [I9831 QB 335, 358. See also,
for the view that the concept of jurisdiction is essentially territorial, BankoviC v. Belgium,
European Court of Human Rights, Judgment of 12 December 2001, paras. 63,67 and 71.
3 3 See e.g. the Separate Opinion of Judge Guillaume in Congo v. Belgiurn, ICJ Reports, 2002,
para. 4.
'O

580

I N T E R N A T I O N A L LAW

Thus, all crimes committed (or alleged to have been committed) within
the territorial jurisdiction of a state may come before the municipal courts
and the accused if convicted may be sentenced. This is so even where theoffenders are foreign- citizens.j4
The principle whereby criminal jurisdiction is based upon the territoryof the state claiming to try the offence is the principal ground for the
exercise of jurisdiction, although not the exclusive one. There are others,
such as nationality, but the majority of prosecutions occurring where acrime has been involved take place because the crime was committed
within the territory of the state.
However, the territorial concept is more extensive than at first appears
since it encompasses not only crimes committed on the territory of astate but also crimes in which only part of the offence has occurred in
the state, for example where a person fires a weapon across a frontier
killing somebody. Both the state where the gun was fired and the state
where the injury actually took place have jurisdiction to try the offender,
the former under the so-called objective territorial principle. Of course,which of the states will in the event exercise its jurisdiction will depend
upon where the offender is situated, but the point remains that both thestate where the offence was commenced and the state where the offence
was concluded may validly try the ~ f f e n d e r . ~For
' example, the Scottish
Solicitor General made it clear that Scottish courts had jurisdiction withregard to the alleged bombers of the airplane which exploded over the
Scottish town of Lockerbie as the locus of the offences.36Such a situation
would also apply in cases of offences against immigration regulations andin cases of conspiracy where activities have occurred in each of two, or
See e.g. Holrnes v. Brz~zgladeshBinani Corporrztion [I9891 1 AC 1112, 1137; 87 ILR, pp. 365,
380-1, per Lord Griffiths and Lord Browne-ltTililkinsonin Exparte Pinochet (No. 3) [2000]
1 AC 147, 188.
See e.g. the Lotus case, PCIJ, Series A, No. 10, 1927, pp. 23, 30; 4 AD, pp. 153, 159, andJudge Moore, ibid., p. 73; the Harrard Research Draft Convention on Jurisdiction with
Respect to Crime, 29 AJIL, 1935, Supp., p. 480 (article 3), and Akehurst, 'Jurisdiction: pp.
152-3. See Lord Wilberforce, DPP v. Doot [I9731 AC 807, 817; 57 ILR, pp. 117, 119 andR v. Berry [I9841 3 All ER 1008. See also Strassheirn v. Dailey 221 US 280 (1911); US v.
Colurnba-Colella 604 F.2d 356 and US v. Perez-Herrera 610 F.2d 289.
'6 Before the International Court in oral pleadings at the provisional illeasures phase of
the Lockerbie case, CR 9213, pp. 11-12, UKMIL, 63 BYIL, 1992, p. 722. The trial of thetwo accused took place in the Netherlands, but in a facility that was deemed to be a
Scottish court, with Scottish judges and lawyers and under Scots law: see e.g. A. ALIS~,'Lockerbie: The Other Case: 49 ICLQ, 2000, p. 278, and for the verdict, see 94 AJIL, 2000,
p. 405.

j4''

more, countries.37Accordingly, courts are likely to look at all the circumstances in order to determine in which jurisdiction the substantial or moresignificant part of the crime in question was committed.j8
The nature of territorial sovereignty in relation to criminal acts was
examined in the Lotus case.39The relevant facts may be summarised asfollows. The French steamer, the Lotus, was involved in a collision on thehigh seas with the Boz-Kourt, a Turkish collier. The latter vessel sank andeight sailors and passengers died as a result. Because of this the Turkishauthorities arrested the French officer of the watch (at the time of theincident) when the Lotus reached a Turkish port. The French officer was
charged with manslaughter and France protested strongly against thisaction, allegingthat Turkey did not have the jurisdiction to try the offence.
The case came before the Permanent Court of International Justice, which
was called upon to decide whether there existed an international ruleprohibiting the Turkish exercise of jurisdiction.
Because the basis of international law is the existence of sovereignstates, the Court regarded it as axiomatic that restrictions upon the independence of states could not be p r e ~ u m e d . ~However,'a state was not able
to exercise its power outside its frontiers in the absence of a permissiverule of international law. But, continued the Court, this did not meanthat 'international law prohibits a state from exercising jurisdiction in
its own territory, in respect of any case which relates to acts which havetaken place abroad and in which it cannot rely on some permissive ruleof international law: In this respect, states had a wide measure of discretion limited only in certain instances by prohibitive rules." Because of
See e.g. Board of Trade v. Owen [I9571 AC 602, 634 and DPP v. Stonehouse [I9771 2 All
ER 909, 916; 73 ILR, p. 252. See also the Home Secretary speaking as to the Criminal
Justice Bill on 14 April 1993, and noting that the effect of the proposed legislation would
be to ensure that where a fraud had a significant connection with the UK, British courts
would have jmisdiction, ~vhetheror not the final element of the crime occurred ~vithin
the country, UKMIL, 64 BYIL, 1993, pp. 646-7. See G. Gilbert, 'Crimes Sans Frontieres:
Jurisdictional Problems in English Law', 63 BYIL, 1992, pp. 415,430 ff. Note also Akehmst,
who would restrict the operation of the doctrine so that jurisdiction could only be claimedby the state where the primary effect is felt, 'Jurisdiction', p. 154.
'8 See e.g. La Forest J in Librnan v. The Qfneeli (1985) 21 CCC (3d) 206 and Lord Griffiths in
Sornchai Liarigsiriprasert v. The LTnited States [I9911 1 AC 225.
'"CIJ,
Series A, No. 10, 1927; 4 AD, p. 153. See e.g. Mann, 'Doctrine of Jurisdiction: pp.
33-6, 39, 92-3; J. W. Verzijl, The Jtrrisprude~zceof the World Court, Leiden, vol. I, 1965, pp.
73-98, and Schachter, 'International Law', p. 250. See also Opperiheirn's Iriternational Law,
p. 478.
40 PCIJ, Series A, No. 10, 1927, pp. 18-19; 4 AD, p. 155.
PCIJ, Series A, No. 10, 1927, p. 19; 4 AD, p. 156.
j7

"

j82

I N T E R N A T I O N A L LAW

this, countries had adopted a number of different rules extending theirjurisdiction beyond the territorial limits so that 'the territoriality of criminal law, therefore, is not an absolute principle of international law andby 110 means coincides with territorial sovereignty'.42The Court rejected
the French claim that the flag state had exclusive jurisdiction over theship on the high seas, saying that no rule to that effect had emerged ininternational law, and stated that the damage to the Turkish vessel was
equivalent to affecting Turkish territory so as to enable that country to
exercise jurisdiction on the objective territorial principle, unrestricted byany rule of international law prohibiting this.43
The general pronouncements by the Court leading to the dismissal of
the French contentions have been criticised by writers for a number ofyears, particularly with respect to its philosophical approach in treatingstates as possessing very wide powers of jurisdiction which could only be
restricted by proof of a rule of international law prohibiting the action
concerned.44It is widely accepted today that the emphasis lies the otherway around.45It should also be noted that the Lotus principle as regards
collisions at sea has been overturned by article l l ( 1 ) of the High Seas
Convention, 1958, which emphasised that only the flag state or the stateof which the alleged offender was a national has jurisdiction over sailors
regarding incidents occurring on the high seas. The territorial principle
covers crimes committed not only upon the land territory of the state but
also upon the territorial sea and in certain cases upon the contiguous andother zones and on the high seas where the state is the flag state of thevessel.46
As modern communications develop, so states evolve new methods ofdealing with new problems. In the case of the Channel Tunnel, for example, providing a land link between the UK and France, these countries
entered into an agreement whereby each state was permitted to exercise
jurisdiction within the territory of the other. The Protocol concerning
Frontier Controls and Policing, Co-operation in Criminal Justice, Public Safety and Mutual Assistance relating to the Channel Fixed Link was'' PCIJ, Series A, No. 10, 1927, p. 20.

" Xhid., p. 24; 4 AD, p. 158.

44 See e.g. G. Fitzmaurice, 'The General Principles of International Law Considered from theStandpoint ofthe Rule of La~7:92 HR, 1957, pp. 1,56-7, and H. Lauterpacht, filternational
Laiv: Collected Papers, Cambridge, 1970, vol. I, pp. 488-9.
4' See e.g. the Anglo-Norwegian Fisheries case, ICJ Reports, 1951, p. 116; 18 ILR, p. 86 andthe Nottebohm case, ICJ Reports, 1955, p. 4; 22 ILR, p. 349.
46 See above, chapter 11, p. 552.

signed on 25 November 1991.~' Under this Protocol, French and UK
frontier control officers are empowered to work in specified parts of one
another's territory. These areas are termed 'control zones' and are locatedat Cheriton, Coquelles, on board through trains and at international railway stations. The frontier control laws and regulations of one state thus
apply and may be enforced in the other. In particular, the officers of theadjoining state shall in their exercise of national powers be permitted in
the control zone in the host state to detain or arrest persons in accordancewith the frontier control laws and regulations of the adjoining state. Article 38(2) of the Protocol provides that within the Fixed Link (i.e. theTunnel), each state shall have jurisdiction and shall apply their own law
when it cannot be ascertained with certainty where an offence has beencommitted or when an offence committed in the territory of one stateis related to an offence committed on the territory of the other state orwhen an offence has begun in or has been continued in its own territory." However, it is also provided that the state which first receives the
person suspected of having committed such an offence shall have priority
in exercising jurisdiction.
Another example of such cross-state territorial jurisdictional arrangements may be found in the Israel-Jordan Treaty of Peace, 1994. Annex
I(b) and (c) of the Treaty, relating to the NaharayimIBaqura Area andthe ZofarIAl-Ghamr Area respectively, provides for a special regime ona temporary basis. Although each area itself is recognised as under Jordan's sovereignty, with Israeli private land ownership rights and property
interests, Jordan undertakes to grant unimpeded entry to, exit from, land
usage and movement within the area to landowners and to their invitees
or employees and not to apply its customs or immigration legislation
to such persons. In particular, Jordan undertakes to permit with minimum formality the entry of uniformed Israeli police officers for the
purpose of investigating crime or dealing with other incidents solely
involving the landowners, their invitees or employees. Jordan undertakes also not to apply its criminal laws to activities in the area involving
only Israeli nationals, while Israeli laws applying to the extraterritorial activities of Israelis may be applied to Israelis and their activities" The Protocol was brought into force in the UK by the Channel Tunnel (International"

Arrangements) Order 1993: see e.g. UKMIL, 64 BYIL, 1993, p. 647. See also the Protocolof 29 May 2000, UKMIL, 71 BYIL, 2000, p. 589.
This is in addition to the normal territorial jurisdiction of the states within their own
territory up to the frontier in the Tunnel under the sea, article 38(1).

584

I N T E R N A T I O N A L LAW

in the area. Israel could also take measures in the area to enforce suchlaws.49
Thus although jurisdiction is primarily and predominantly territorial,
it is not inevitably and exclusively so and states are free to consent toarrangements whereby jurisdiction is exercised outside the national territory and whereby jurisdiction by other states is exercised within thenational territory.''

The nationality principle j'Since every state possesses sovereignty and jurisdictional powers and since
every state must consist of a collection of individual human beings, it isessential that a link between the two be legally. established. That linkconnecting the state and the people it includes in its territory is provided
by the concept of n a t i ~ n a l i t y . ~ ~By virtue of nationality, a person becomes entitled to a series of rights
ranging from obtaining a valid passport enabling travel abroad to being
49 See also e.g, the treaties of 1903 and 1977 between the US and Panama concerning juris-

dictional rights over the Panama Canal Zone and the NATO Status of Forces Agreement,
1951 regulating the exercise of jurisdiction of NATO forces based in other NATO states.
The Bo~uldaryCommission in Eritrea/Ethiopia noted that it was not unknown for states
to locate a checkpoint or customs post in the territory of a neighbouring state, Decisionof 13 April 2002, para. 6.31 and l~ttp://pca-cpa.orgiPDF/EEBC/EEBCWDecisioi~-L.pdf.
jn Jurisdiction, and its concomitant international responsibility for acts done in the exerciseof that jurisdiction, may also exist on the basis of the acts of officials committed abroadand on the basis of actual control of the territory in question in specific contexts. See e.g.
Loizidou v. Turkey (Preli~riinizryObjections), European Court of Human Rights, Series A,
No. 310,1995, p. 20; 103 ILR, p. 621. For the European Convention on Human Rights, seeabove, chapter 7 and for international responsibility, see below, chapter 14.
Akehurst, 'Jurisdiction: pp. 156-7; Harvard Research Draft Conliention on Jurisdiction
wit11 Respect to Crime, 29 AJIL, 1935, Supp., pp. 519 ff.; hl. \\%iteman, Digest of International Law, Washington, DC, 1967, vol. VIII, pp. 1-22, 64-101, 105-13, 119-87; R.
Donner, The Regulation of Nationality in International Laut, 2nd edn, New York, 1995;
D. Campbell and J. Fisher, International Immigration and Nationality Law, The Hague,
1993; M. J. Verwilghen, 'Conflits de Nationalite, Plurinationaliti. et Apatridie: 277 HR,
1999, p. 9; J. F. Rezek, 'Le Droit International de la Nationalite: 198 HR, 1986 II1,p. 333;
H. Silving, 'Nationality in Comparative Law', 5 Anzerican Jourrzal o f Comparative Law,
1956, p. 410, and Brownlie, Principles, p. 306 and chapter 19. See also Nguyen Quoc Dinh,
P. Daillier and A. Pellet, Droit Iv~ternationalPtlblic, 7th edn, Paris, 2002, pp. 492 ff., andbelow, chapter 14, p. 721.
Note that several instruments provide for a right to a nationality; see e.g. the Universal
Declaration on Human Rights, 1948; the International Covenant on Civil and Political
Rights, 1966; the Convention on the Rights of the Child, 1989 and the European Convention on Nationality, 1997. See also A. Grossman, 'Nationality and the UnrecognisedState', 50 ICLQ, 2001, p. 849.

"''

able to vote. In addition, nationals may be able to undertake various
jobs (for example in the diplomatic service) that a non-national may bebarred from. Nationals are also entitled to the protection of their state
and to various benefits prescribed under international law. On the other
hand, states may not mistreat the nationals of other states nor, ordinarily,
conscript them into their armed forces, nor prosecute them for crimes
committed outside the territory of the particular state.
The concept of nationality is important since it determines the benefits
to which persons may be entitled and the obligations (such as conscription) which they must perform. The problem is that there is no coherent,
accepted definition of nationality in international law and only conflicting
descriptions under the different municipallaws ofstates. Not onlythat, but
the rights and duties attendant upon nationality vary from state to state.
Generally, international law leaves the conditions for the grant of nationality to the domestic jurisdiction of states.
This was the central point in the Nationality Decrees in Tunis andMorocco case.j3This concerned a dispute between Britain and France overFrench nationality decrees which had the effect of giving French nationality to the children of certain British subjects. The Court, which had beenrequested to give an advisory opinion by the Council of the League of
Nations, declared that:[tlhe question of whether a certain matter is or is not solely within thejurisdiction of a state is an essentially relative question, it depends upon
the development of international relations. Thus, in the present state ofinternational law, questions of nationality are, in the opinion of this court,
in principle within this reserved d ~ m a i n . ~ "However, although states may prescribe the conditions for the grant of
nationality, international law is relevant, especially where other states are
involved. As was emphasised in article 1 of the 1930 Hague Convention
on the Conflict of Nationality Laws:
it is for each state to determine under its own law who are its nationals.
This law shall be recognised by other states in so far as it is consistent withinternational conventions, international custom and the principles of law
generally recognised xvith regard to nationality.

The International Court of Justice noted in the Nottebohm cases5 that,
according to state practice, nationality was:j3

i5

PCIJ, Series B, No. 4, 1923; 2 AD, p. 349.
j4 PCIJ, Series B, No. 4, 1923, p. 24.
ICJ Reports, lY55, pp. 4,23; 22 ILR, pp. 349, 360. See also be1ow.p. 725.

586

I N T E R N A T I O N A L LAW

a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existenceof reciprocal rights and duties.

It was a legal manifestation of the link between the person and the state
granting nationality and a recognition that the person was more closely
connected with that state than with any other.56
Since the concept of nationality provides the link between the individual and the benefits of international law, it is worth pointing to some of
the basic ideas associated with the concept, particularly with regard to its
a~~uisition."~In general, the two most important principles upon which nationality
is founded in states are first by descent from parents who are nationals( jus sanguinis) and second by virtue of being born within the territory of
the state ( j u s soli).
It is commonly accepted that a child born of nationals of a particularstate should be granted the nationality of that state by reason of descent.
This idea is particularly utilised in continental European countries, forexample, France, Germany and Switzerland, where the child will receive
the nationality of his father, although many municipal systems do provide that an illegitimate child will take the nationality of his mother. On
the other hand, in common law countries such as Britain and the US thedoctrine of the jtis sanguinis is more restricted, so that where a father has
become a national by descent it does not always follow that that fact alone
will be sufficient to make the child a national.
The common law countries have tended to adopt the jus soli rule,
whereby any child born within the territorial limits of the state automatically becomes a national thereof.58 The British Nationality Act of 1948,
for example, declared that 'every person born within the United Kingdom
and Colonies . . . shall be a citizen of the United Kingdom and Colonies bybirth'.j9 There is an exception to this, however, which applies to virtually
every country applying the jus soli rule, and that is with regard to persons
entitled to immunity from the jurisdiction of the state. In other words,
the children of diplomatic personnel born within the country do not
See below, chapter 14, p. 727, as to dual nationality and state responsibility for injuries toaliens.
" See e.g. Brownlie, Principles, p. 390; P. Weiss, Nationality and Statelessness in InternationalLaw, 2nd edn, Germantown, 1979 and H. F. \'an Panhuys, The Role of Nationality inInternational Laiv, Leiden, 1959.
j8 See e.g. United States v. WongKirn Ark 169 US 649 (1898).
"'ut
see now the British Nationality Act of 1981.
'6

automatically acquire its nati~nality.~'
Precisely how far this exception
extends varies from state to state. Some countries provide that this rule
applies also to the children of enemy alien fathersb1 born in areas underenemy ~ c c u p a t i o n . ~ ~Nationality may also be acquired by the wives of nationals, although
here again the position varies from state to state. Some states provide
for the automatic acquisition of the husband's nationality, others for theconditional acquisition of nationality and others merely state that themarriage has no effect as regards nationality. Problems were also caused in
the past by the fact that many countries stipulated that a woman marrying
a foreigner would thereby lose her nationality.
The Convention of 1957 on the Nationality ofMarried Women provides
that contracting states accept that the marriage of one of their nationals
to an alien shall not automatically affect the wife's nationality, although awife may acquire her husband's nationality by special procedures should
she so wish.
It should be noted also that article 9 of the Convention on the Elimination of All Forms of Discrimination against Women, 1979 provides thatstates parties shall grant women equal rights with men to acquire, changeor retain their nationality and that in particular neither marriage to analien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless or force
upon her the nationality of the husband. It is also provided that womenshall have equal rights with men with respect to the nationality of theirchildren. As far as children themselves are concerned, article 24(3) of theInternational Covenant on Civil and Political Rights, 1966 stipulated thatevery child has the right to acquire a nationality, while this is reaffirmed
in article 7 of the Convention on the Rights of the Child, 1989.
Nationality may be obtained by an alien by virtue of a naturalisation
process usually involving a minimum period of residence, but the conditions under which this takes place vary considerably from country tocountry. 63
60 See e.g. In re Tllerlault 47 F.Supp. 952 (1942) and article 12, Convention o n Conflict of

Nationality Law, 1930. See also article 11, Optional Protocol o n Acquisition of Nationality(UN Conference o n Diplomatic Law), 1961.
61 But see Iuglis v. Sailor's SnugHarbour 3 Peters 99 (1830), US Supreme Court.
6' Note the various problems associated with possible extensions of the jus soli rule, e.g.
regarding births o n ships: see Brownlie, Principles, p. 392. See also Lam Mow v. Nagle 24
F.2d 316 (1928); 4 AD, pp. 295, 296.
See e.g. Weiss, Nationality, p. 101.

588

I N T E R N A T I O N A L LAW

Civil jurisdiction, especially as regards matters of personal status, in a
number of countries depends upon the nationality of the parties involved.
So that, for example, the appropriate matrimonial law in any dispute fora Frenchman anywhere would be French law. However, common law
countries tend to'base the choice of law in such circumstances upon thelaw of the state where the individual involved has his permanent home(domicile).
Many countries, particularly those with a legal system based upon thecontinental European model, claim jurisdiction over crimes committed
by their nationals, notwithstanding that the offence may have occurredin the territory of another state.64Common law countries tend, however,to restrict the crimes over which they will exercise jurisdiction over theirnationals abroad to very serious ones, in the UK generally limited to treason, murder and bigamy committed by British nationals abroad.65Undersection 21 of the Antarctic Act 1994, when a British national does or omits
to do anything in Antarctica which would have constituted an offence if
committed in the UK, then such person will be deemed to have committed an offence and be liable to be prosecuted and punished if convicted.
In addition, the War Crimes Act 1991 provides for jurisdiction against
a person who was on 8 March 1990 or subsequently became a British
citizen or resident in the UK. Proceedings for murder, manslaughter or
culpable homicide may be brought against that person in the UK, irrespective of his nationality at the time of the alleged offence, if the offence
was committed during the Second World War in a place that was part ofGermany or under German occupation and constituted a violation of thep. 417. See also Re Gutierrez 24 ILR,p. 265, Public Prosecutor v.
Antoni 32 ILII, p. 140 and Serre et Xegnier, Recueil Ualloz Sirey (jurisprudence), 1991, p.
395.
See e.g. the Official Secrets Acts 1911 (s. 101, 1970 (s. 8) and 1989 (s. 15); the Offences
Against the Person Act 1861 ss. 9 and 57; the Merchant Shipping Act 1894 s. 686(1) andR v. Kelly [I9821 AC 665; 77 ILR, p. 284 and the Suppression of Terrorism Act 1978 s. 4.
See P. Arnell, 'The Case for Nationality-Based Jurisdiction', 50 ICLQ, 2001, p. 955. This
has now been extended to cover various sexual offences committed ahroad: see the Sexual
Offences (Conspiracy and Incitement) Act 1996 and the Sex Offenders Act 1997. Notethat in Skiriotes v. Florida 313 US 69, 73 (1941); 10 AD, pp. 258,260, Hughes CJ declaredthat 'the United States is not debarred by any rule of international law from governing the
conduct of its own citizens upon the high seas or even in foreign countries when the rights
of other ilatioils or their ilatioilals are not infringed: See also DUSPIL, 1976, pp. 449-57,
regarding legislation to subject US nationals and citizens to US district court jurisdiction
for crimes committed outside the US, particularly regarding Antarctica.

64 See e.g. Gilbert, 'Crimes:''laws and customs of war.66Further, the common law countries have neverprotested against the extensive use of the nationality principle to foundjurisdiction in criminal matters by other states.
It should be finally noted that by virtue of article 91 of the 1982 Convention on the Law of the Sea, ships have the nationality ofthe state whose
flag they are entitled to fly. Each state is entitled to fix the conditions forthe grant of its nationality to ships, for the registration of ships in its territory and for the right to fly its flag. However, there must be a genuine link
between the state and the ship.67By article 17 of the Chicago Convention
on International Civil Aviation, 1944, aircraft have the nationality of thestate in which they are registered, although the conditions for registration
are a matter for domestic law.68
The passive personality principle 69
Under this principle, a state may claim jurisdiction to try an individualfor offences committed abroad which have affected or will affect nationalsof the state.
The leading case on this particular principle is the Ctittingcase in 1886"
which concerned the publication in Texas of a statement defamatory ofa Mexican by an American citizen. Cutting was arrested while in Mexicoand convicted of the offence (a crime under Mexican law) with Mexico
maintaining its right to jurisdiction upon the basis of the passive personality principle. The United States strongly protested against this, but there
was an inconclusive end to the incident, the charges being withdrawn by
the injured party.i1
A strong attack on this principle was made by Judge Moore, in a Dissenting Opinion in the Lotus case,72since the Turkish criminal code provided" See also, with regard to the nationality of ships and aircraft, above, chapter 11, p. 545,and

below, p. 601, and as to the nationality of corporations, below, p. 727. See further, as tothe nationality of claims, below, chapter 14, p. 721.
67 See also article 5 of the Geneva Convention on the High Seas, 1958.
See article 19.
69 See e.g. Akehurst, 'Jurisdiction: pp. 162-6; Mann, 'Doctrine of Jurisdiction', pp. 40-1;
E. Beckett, 'The Exercise of Criminal J~~risdiction
over Foreigners', 6 BYIL, 1925, p. 44
and Beckett, 'Criminal Jurisdiction over Foreigners: 8 BYIL, 1927, p. 108; Mr. W. Bishop,'General Course of Public International Law, 1965; 115 HR, 1965, pp. 151, 324, andHiggins, Problems and Process, p. 65. See also the Eichmann case, 36 ILR, pp. 5,49-57,304.
70 1. B. Moore, Digest ofInternationa1 Laiv, Washington, 1906, vol. 11, p. 228.
See US Foreign Relations, 1886, p. riii; 1887, p. 757; and 1888, rol. 11, p. 1114.
72 PCIJ, Series A, No. 10, 1927, p. 92; 4 AD, p. 153.

590

I N T E R N A T I O N A L LAW

for jurisdiction where harm resulted to a Turkish national. However, theCourt did not resolve the issue and concentrated upon the objective territorial jurisdiction prin~iple.'~The overall opinion has been that the passive personality principle israther a dubious ground upon which to base claims to jurisdiction underinternational law and it has been strenuously opposed by theandthe UK, although a number of states apply it.
However, article 9 of the International Convention against the Takingof Hostages, 1979, in detailing the jurisdictional bases that could be established with regard to the offence, included the national state of a hostage'if that state considers it appropriate'." The possibility of using the passive
personality concept was taken up by the US in 1984 in the Comprehensive' ~ alia implementing the Convention and in the
Crime Control A C ~ interprovision extending the special maritime and territorial jurisdiction of
the US to include '[alny place outside the jurisdiction of any nation withrespect to an offence by or against a national of the UnitedIn
1986, following the Achille Lauro incident,78the US adopted the Omnibus
Diplomatic Security and Anti-Terrorism ~ c tinserting, ~ ~ into the criminal
code a new section which provided for US jurisdiction over homicide andphysical violence outside the US where a national of the US is the victim.
The section is less sweeping than it appears, since the written certificationof the Attorney General is required, before a prosecution may commenceby the US, to the effect that the offence was intended to coerce, intimidate
or retaliate against a government or a civilian population.
" PCIJ, Series A, No. 10, 1927, pp. 22-3. See also O'Connell, Internatioi~alLaw, vol. 11, pp.

901-2, and Higgins, Problevns and Process, pp. 65-6.
See, for example, US protests to Greece, concerning the service of summonses by Greek
Consuls in the US on US nationals involved in accidents with Greek nationals occurringin the United States, DUSPIL, 1973, pp. 197-8 and DUSPIL, 1975, pp. 3 3 9 4 0 .
-" See Rees v. Secretary of State for the HoffleDepartrllent [I9861 2 All ER 321. See generally, J. J. Lambert, Terrorism and Hostages in International Law, Cambridge, 1990. See also
article 3 ( l ) c of the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, 1973 and article 5(1)cof the Convention against Torture,
1984.
76 See new section 1203 of the Criminal Code, 18 USC para. 1203, Pub. L. No. 98-473,
ch. 19, para. 2002(a), 98 Stat. 1976,2186.
77 Pub. L. NO. 98-473, para. 1210, 98 Stat. at 2164. Note also article 689(1) of the French
Code of Criminal Procedure adopted in 1975.
" See below, p. 603.
79 Pub. L. No. 99-399, tit. XII, para. 1202(a),100 Stat. 853, 896. See e.g. C. Blakesley, 'Jurisdictional Issues and Conflicts of rurisdiction' in Legal Responses to International Terrorism(ed. M . C. Bassiouni), Charlottesville, 1988. See also article 689 of the French Code of
Criminal Procedure 1975.
'4

In US v. Yunis (No. 2)80 the issue concerned the apprehension of a
Lebanese citizen by US agents in international waters and his prosecution in the US for alleged involvement in the hijacking of a Jordanian
airliner. The only connection between the hijacking and the US was thefact that several American nationals were on that flight. The Court accepted that both the universality principle8' and the passive personality
principle provided an appropriate basis for jurisdiction in the case. It wasstated that although the latter principle was the most controversial of thejurisdictional principles in international law, 'the international community recognises its
It was pointed out that although the US
had historically opposed the passive personality principle, it had been
accepted by the US and the international community in recent years inthe sphere of terrorist and other internationally condemned crimes.83

The protective principle

g4This principle provides that states may exercise jurisdiction over aliens
who have committed an act abroad which is deemed prejudicial to thesecurity of the particular state concerned. It is a well-established concept, although there are uncertainties as to how far it extends in practiceand particularly which acts are included within the net of the claimed
juri~diction.~~The principle is justifiable on the basis of protection of a state's vitalinterests, since the alien might not be committing an offence under thelaw of the country where he is residing and extradition might be refused
if it encompassed political offences.

'"681 F.Supp. 896 (1988);82 ILR, p. 344. See also CTS v. Yunis (No. 3 ) 924 F.2d 1086, 1091;
88 ILR, pp. 176, 181.
" See below, p. 592.

82681 F.Supp. 896, 901; 82 ILR, p. 349.

" 681 F.Supp. 896, 902; 82 ILR, p. 350. Note that a comment to paragraph 402 of the Third

US Restatenlent of Foreign Relations Law, vol. I , p. 240, states that the passive personality
principle 'is increasingly accepted as applied to terrorist and other organised attacks on astate's nationals by reason of their nationality, or to assassinations of a state's diplomatic
representatives or other officials'. See also US v. Betlitez 741 F.2d 1312, 1316 (1984), cert.
denied, 471 US 1137, 105 S. Ct. 2679 (1985) and the Joint Separate Opinion in Congo v.
Belgitntl, ICJ Reports, 2002, para. 47.
S4 See e.g. Akehurst, 'Jurisdiction: pp. 157-9; Harvard Research, pp. 543-63, and M. Sahovic
and W. Th! Bishop, 'The Authority of the State: Its Range with Respect to Persons andPlaces' in Manual of Public International Latv (ed. M . Sorensen), London, 1968, pp. 311,362-5. See also M. S. McDougal, H. Lasswell and V. l7lasic, Law and Public Order in Space,
New Haven, 1963, pp. 699-701.
See e.g. In re Urios1 AD, p. 107 and article 694(1) ofthe French Code ofCrinlinalProcedure.

''

5g2

I N T E R N A T I O N A L LAW

However, it is clear that it is a principle that can easily be abused, although usually centred upon immigration andvarious economic offences,since far from protecting important state functions it could easily be manipulated to subvert foreign governments. Nevertheless, it exists partly inview of the insufficiency of most municipal laws as far as offences against
the security and integrity of foreign states are c ~ n c e r n e d . ~ ~This doctrine seems to have been applied in the British case of Joyce v.
Director of Public ~rosecutions,~~
involving the infamous pro-Nazi propagandist 'Lord Haw-Haw'. Joyce was born in America, but in 1933 fraudulently acquired a British passport by declaring that he had been born in
Ireland. In 1939, he left Britain and started working for German radio.
The following year, he claimed to have acquired German nationality. The
case turned on whether the British court had jurisdiction to try him after
the war, on a charge of treason. The House of Lords decided that jurisdiction did exist in this case. Joyce had held himself out to be a British
subject and had availed himself of the protection (albeit fraudulently)of a British passport. Accordingly he could be deemed to owe allegianceto the Crown, and be liable for a breach of that duty. The fact that thetreason occurred outside the territory of the UK was of no consequencesince states were not obliged to ignore the crime of treason committed
against them outside their territory. Joyce was convicted and suffered thepenalty for his actions.88
The protective principle is often used in treaties providing for multiple
jurisdictional grounds with regard to specific offences.89
The universality principle

g0

Under this principle, each and every state has jurisdiction to try particularoffences. The basis for this is that the crimes involved are regarded as
86 See e.g. Rocha v. US 288 F.2d 545 (1961); 32 ILR, p. 112; US v. Pizzarusso 62 AJIL, 1968,

p. 975, and US v. Rodriguez 182 F.Supp. 479 (1960). See also the Italian South Tyrol
Terrorism case, 71 ILR, p. 242.
[I9461 AC 347; 15 AD, p. 91.
See, with regard to US practice, Rocha v. United States 182 F.Supp. 479 (1960); UnitedStates v. Pizzarusso 388 F.2d 8 (1968) and United States v. Layton 509 F.Supp. 212 (1981).
See also Third US Restatement ofForeign Relations Law, vol. I , pp. 237 ff. and the Omnibus
Diplomatic Security and Anti-Terrorism Act 1986.
89 See e.g. the Hostages Convention, 1979; the aircraft hijacking con~rentionsand the Safetyof United Nations and Associated Personnel Convention, 1994: see below, pp. 600-2.
90 See e.g. Akehurst, 'Jurisdiction', pp. 160-6; Bowett, 'rurisdiction: pp. 11-14; Harrard
Research, pp. 563-92; reniliilgs, 'Extraterritorial Jurisdiction: p. 156; Gilbert, 'Crimes',

particularly offensive to the international community as a whole. There are
two categories that clearly belong to the sphere of universal jurisdiction.
These are piracy and war crimes. However, there are a growing numberof other offences which by international treaty may be subject to thejurisdiction of contracting parties and which form a distinct category
closely allied to the concept of universal jurisdiction.
PiracyUniversal jurisdiction over piracy has been accepted under internationallaw for many centuries and constitutes a long-established principle of theworld ~ o m m u n i t y . ~All' states may both arrest and punish pirates, provided of course that they have been apprehended on the high seas92or
within the territory of the state concerned. The punishment of the offenders takes place whatever their nationality and wherever they happened tocarry out their criminal activities.
Piracy under international law (or piracy jtlregentitim) must be distinguished from piracy under municipal law. Offences that may be characterised as piratical under municipal laws do not necessarily fall within thedefinition of piracy in international law, and thus are not susceptible touniversal jurisdiction (depending of course upon the content and formof international conventions). Piracy jure gentium was defined in article
15 of the High Seas Convention, 1958 (and reaffirmed in article 101 of
the 1982 Convention on the Law of the Sea) as illegal acts of violence,
detention or depredation committed for private ends by the crew or passengers of a private ship or private aircraft and directed against anothership or aircraft (or persons or property therein) on the high seas or termp. 423, and K. C. Randall, 'Universal Jurisdiction under International Law', 66 Texas Laiv
Review, 1988, p. 785. See also M. C. Bassiouni, Crirnes Against Huuzanity in International
Criminal Law, Dordrecht, 1992; L. Reydams, Universal J~~risdictiorl,
Oxford, 2003; A. H.
Butler, The Doctrine of Universal Jurisdiction: A Review of the Literature, 11 Crirrlinal Law
Forum, 200 1 , p. 353; M. Henzelin, Le Principe de I'Uni'niversalite en Droit Penal International,
Brussels, 2000; L. Benvenides, 'The Universal Jurisdiction Principle: Nature and Scope: 1
Anntlario Mexicano de Derecho International, 2001, p. 58, and the Princeton Principles on
CTlziversal Jurisdiction, Princeton, 2001. Note also H. Kissinger, 'The Pitfalls of Universal
Jurisdiction: Foreign Afairs, JulyIAugust 2001.
" See e.g. In re Piracy Jt~reGentium [I9341 AC 586; 7 AD, p. 213. See also D. H. Johnson,'Piracy in Modern International Law', 43 Transactions of the Grotius Society, 1957, 17. 63,
and G. E. White, 'The Marshall Court and International Law: The Piracy Cases: 83 AJIL,
1989, p. 727. See also the Separate Opinion of Judge Guillaume in Congo r. Belgiurn, ICJ
Reports, 2002, para. 5.
9' Article 105 of the 1982 Convention on the Law of the Sea (reproducing article 19 of the
Geneva Convention on the High Seas, 1958).

594

I N T E R N A T I O N A L LAW

n~llius.'~Attempts to commit such acts are sufficient to constitute piracy
and it is not essential for the attempt to have been successful.94
War crimes, crimes against peace and crimes against humanity
In addition to piracy, war crimes are now accepted by most authorities as
subject to universal jurisdiction, though of course the issues involved are
extremely sensitive and highly p~litical.~'While there is little doubt about
the legality and principles of the war crimes decisions emerging after theSecond World War, a great deal of controversy arose over suggestions of
war crimes guilt appertaining to American personnel connected with theVietnam war,9hand Pakistani soldiers involved in the Bangladesh war of1971.
Article 6 of the Charter of the International Military Tribunal of 1945
referred to crimes against peace, violations of the law and customs of
war and crimes against humanity as offences within the jurisdiction of
the Tribunal for which there was to be individual r e ~ ~ o n s i b i l i tThisy.~~article can now be regarded as part of international law. In a resolution
unanimously approved by the General Assembly of the United Nationsin 1946, the principles of international law recognised by the Charter of
the Nuremberg Tribunal and the judgment of the Tribunal were expresslyc ~ n f i r m e dThe
. ~ ~General Assembly in 1968 adopted a Convention on the
Non-Applicability of Statutory Limitations to War Crimes and Crimes
Against Humanity, reinforcing the general conviction that war crimes
form a distinct category under international law, susceptible to universal
93 See further above, chapter 11, p. 549.

In re Piracy Jtlre Gerrtiunr [I9341 AC 586; 7 AD, p. 213.
See e.g. Akehurst, '~urisdiction:p. 160; A. Cowles, 'Universality of Jurisdiction over War
Crimes: 33 California Law Review, 1945, p. 177; Brownlie, Principles, pp. 304-5; Bowett,'Jurisdiction: p. 12; Higgins, Problettzs and Process, p. 56; Mann, 'Doctrine of Jurisdiction',p. 93, and Bassiouni, Crirnes against Humanity, p. 510. See also the Eichmann case, 36
ILR, pp. 5 and 277 and the U N War Crimes Commission, 15 Law Reports o f Trials of lVar
Criminals, 1949, p. 26. However, cf. the Separate Opinion of Judge Guillaume in Corigo v.
Belgitntz, ICJ Reports, 2002, para. 12 (restricting universal jurisdiction to piracy) andthe Joint Separate Opinion, ibid., para. 51 (universal jurisdiction may possibly exist withregard to the Geneva Conventions of 1949 on war crimes, etc.). See further above, chapter
5 , p. 234.
" See e.g. Calley v. Ca110way382 F.Supp 650 (1974),rev'd 519 F.2d 184 (1975),cert. denied
425 US 911 (1976).
See also article 228 of the Treaty of Versailles, 1919: above, chapter 5, p. 233.
98 Resolution 95 (I). See also Yearbook of the ILC, 1950, vol. 11, p. 195; 253 HL Deb., col.
831, 2 December 1963; the British Mantlal o f Military Law, Part 111, 1958, para. 637;
Brownlie, Principles, p. 562, and P. MTeiss, 'Time Limits for the Prosecution of Crimes
against International Law', 53 BYIL, 1982, pp. 163, 188 ff.
94

9'

''

j u r i s d i ~ t i o n ,while~ ~ the four Geneva 'Red Cross' Conventions of 1949
also contain provisions for universal jurisdiction over grave breaches.loO
Such grave breaches include wilful killing, torture or inhuman treatment,
unlawful deportation of protected persons and the taking of hostages.
The list was extended in Protocol I of 1977 to the 1949 Conventions toinclude, for example, attacking civilian populations.101
The universality principle was to some extent applied in the Eichrnun~z
case'02 before the District Court of Jerusalem and the Supreme Court ofIsrael in 1961. Eichmann was prosecuted and convicted under an Israeli
law of 1951 for war crimes, crimes against the Jewish people and crimes
against humanity. The District Court declared that far from limiting states'
jurisdiction with regard to such crimes, international law was actually inneed of the legislative and judicial organs of every state giving effect toits criminal interdictions and bringing the criminals to trial. The factthat the crimes were committed prior to the establishment of the stateof Israel did not prevent the correct application of its powers pursuant
to universal jurisdiction under international law. Israel's municipal law
merely reflected the offences existing under international law.
Nuremberg practice demonstrates that crimes against peace consist of
the commission by the authorities of a state of acts of aggression. In theory this is not controversial, but in practice serious problems are likely toarise within the framework of universal jurisdiction. However, whether
this category can be expanded to include support for international terrorism is open to question. Crimes against humanity clearly cover genocideand related activities. They differ from war crimes in applying beyond
the context of an international armed conflict, but cover essentially thesame substantive offences.lo3The UN Secretary-General's Report on the
99 See e.g. Weiss, 'Time Limits'.

See article 49 of the First Geneva Convention; article 50 of the Second Geneva Convention; article 129 of the Third Geneva Convention and article 146 of the Fomth Geneva
Convention. See also e.g. G. I. A. D. Draper, The Red Crosj Conventions, London, 1958,
p. 12.
p. 105. Cf. Bowett, 'J~~risdiction',lo' See further above, chapter 5, p. 236.
Io2 36 ILR, pp. 5 and 277. See also the Barbie cases, 78 ILR, pp. 78,125,136 and Dernjanjuk v.
Petrovsky 776 F.2d 571 (1985); 79 ILR, p. 534. See also Keesing's Record of Mbrld Events, p.
36189 regarding the Denzjarzjtlk case in Israel.
lo3 See e.g. Brownlie, Principles, p. 562; L. C. Green, The Contentporary Law ofArnted Corgict,2nd edn, Manchester, 2000, chapter 18; E. Schwelb, 'Crimes Against Humanity', 23 BYIL,
1946, p. 178. See also the Commentary to article 20 ofthe Draft Statute for an International
Criminal Court which refers to the concept as a term of art, Report of the International
Law Commission, A/49/10,1994, p. 75. It is a matter for domesticlawwhether the presenceof the accused is required for the exercise of the jurisdiction of the particular domestic
loo

596

I N T E R N A T I O N A L LAW

Establishment of an International Tribunal for the Former ~ u ~ o s l a v i a ' ~ ~noted in the commentary to article 5 of what became the Statute of the
Tribunal1'' that 'crimes against humanity are aimed at any civilian population and are prohibited regardless of whether they are committed in
an armed conflict, international or internal in character' and that 'crimes
against humanity refer to inhumane acts of a very serious nature, suchas wilful killing, torture or rape, colnmitted as part of a widespread orsystematic attack against any civilian population on national, political,
ethnic, racial or religous grounds'.'06The 1998 Rome Statute for the International Criminal Court provides that jurisdiction is limited to the'most serious crimes of concern to the international community as awhole' being genocide, crimes against humanity, war crimes and aggress i ~ n , ' ~and' that a person who commits a crime within the jurisdictionof the Court 'shall be individually responsible and liable for punishment'in accordance with the statute.'08
The International Law Commission adopted a Draft Code of Crimes
against the Peace and Security of Mankind in 1996.'09 Article 8 provides
that each state party shall take such measures as may be necessary to establish its jurisdiction over the crimes laid down in the Draft, while article 9
provides that a state in whose territory an individual alleged to havecommitted a crime against the peace and security of mankind is present
court. Different states adopt different approaches. The Belgian Court of Cassatioil took
the view in its decision of 12 February 2003 in HSA et al. u. SA et al. (relating to theindictment of defendant Ariel Sharon, Amos Yaron and others concerning events in the
Shabra and Shatilla camps in Lebanon in 1982), No. P. 02.1139. Fll, that the presence of
the accused was not necessary. However, in the decision of the Supreme Court of Spainof 25 February 2003 in the Gilatenzalarl Genocide case, Tudgment No. 32712003, it washeld that jurisdiction would cover only acts of genocide in which Spanish nationals werevictims. It was noted that there had to be some point of connection between the domestic
proceeding and the alleged crime rendering legitimate the extension of extraterritorial
jurisdiction.
lo" S125704, 1993, at paragraphs 47-8.
10"ec~~rity Council resolution 827 (1993).
'06 See article 3 of the Statute of the International Tribunal for Rwanda, 1994, Security
Council resolution 955 (1994). See also the Barbie case, 100 ILR, p. 330 and the Totlvier
case, ibid., 17. 337.
lo' Article 5.
l o x Article 25.
'09 Report of the International Law Commission, Al51110, 1996,p. 9. This had been underconsideration since 1982: see General Assembly resolution 361106 of 10 December 1981.
A Draft Code was formulated in 1954 by the ILC and submitted to the UN General Assembly: see Yearbook of the ILC, 1954, vol. 11, p. 150. The General Assembly postponed
consideration of it until a definition of aggression had been formulated, resolution 897(IX). This was achieved in 1974: see resolution 3314 (XXIX). A Draft Code was provisionally adopted in 1991: see A146110 and 30 ILM, 1991, p. 1584. See also above, chapter
5, p. 237.

shall either extradite or prosecute that individual. The Commentary tothis article declares that the national courts of states parties would beentitled to exercise the 'broadest possible jurisdiction' over the crimes'under the principle of universal juri~diction'."~The Crimes against thePeace and Security of Mankind, for which there is individual responsibility, comprise aggression (article 16);"' genocide (article 17); crimes
against humanity (article 18); crimes against UN and associated personnel (article 19); and war crimes (article 20).l l 2
The fact that a particular activity may be seen as an international crime
does not ofitself establish universal jurisdiction and state practice does notappear to have moved beyond war crimes, crimes against peace and crimes
against humanity in terms of permitting the exercise of such jurisdiction.
In particular, references made to, for example, apartheid, mercenaries andenvironmental offences in the 1991 Draft but omitted in the Draft Codeadopted in 1996 must be taken as de lege feuenda.
Treaties providing for jurisdiction
In addition to the accepted universal jurisdiction to apprehend and try
pirates and war criminals, there are a number of treaties which provide
for the suppression by the international community of various activities,
ranging from the destruction of submarine cables to drug trafficking andslavery.''' These treaties provide for the exercise of state jurisdiction but
not for universal jurisdiction. Some conventions establish what might
be termed a quasi-universal jurisdiction in providing for the exercise ofjurisdiction upon a variety of bases by as wide a group of states parties as possible coupled with an obligation for states parties to establish
such jurisdiction in domestic law. In many instances the offence involved
will constitute jus cogens. The view is sometimes put forward that wherea norm of jus cogens exists, particularly where the offence is regarded
as especially serious, universal jurisdiction as such may be created.Il4
Report of the International Law Commission, A151110, 1996, p. 51. This does not apply
to the crime of aggression.
"I
Article 8 provides that jurisdiction concerning individuals ~7illrest with an international
criminal court.
112 Additional crimes referred to in the 1991 Draft also included recruitment, use, financing
and training of mercenaries; international terrorism; illicit traffic in narcotic drugs andwilful and severe damage to the environment.
11' See e.g. Akehurst, 'Jurisdiction', pp. 160-1.
1 1 4 See e.g. Millett LJ in Ex parte Pinochet (No. 3) [2000] 1 AC 147, 275. See also R. Van
Alebeek, 'The Pinochet Case: International Human Rights Law on Trial', 71 BYIL, 2000,
p. 29.
'lo598

I N T E R N A T I O N A L LAW

More correct is the approach that in such circumstances international law
recognises that domestic legal orders may validly establish and exercise
jurisdiction over the alleged offenders. Such circumstances thus include
the presence of the accused in the state concerned and in this way may bedifferentiated from universal jurisdiction as such, where, for example, apirate may be apprehended on the high seas and then prosecuted in thestate. Therefore, the type of jurisdiction at issue in such circumstances
cannot truly be described as universal, but rather as quasi-universal."5
Judges Higgins, Kooijmans and Buergenthal in their Joint Separate Opinion in Coizgo v. Belgium referred to this situation rather as an 'obligatory
territorial jurisdiction over persons' or 'the jurisdiction to establish a territorial jurisdiction over persons for extraterritorial events' rather than astrue universal jurisdiction.'16 While the vast majority of domestic legal
orders have adhered to this approach, one or two states have adopted
legislation authorising domestic courts to prosecute certain crimes (essentially war crimes and crimes against humanity) not only where, in thecase of crimes committed abroad, neither the -perpetrators
nor the victims are nationals, but also where the alleged offender is not within thejurisdiction.' l 7
There are a number of treaties that follow the quasi-universal model,that is providing for certain defined offences to be made criminal offences within the domestic orders of states parties; accepting an obligation to arrest alleged offenders found on the national territory and theneither extraditing or prosecuting those persons on the basis of a numberof stated jurisdictional grounds, ranging from territoriality to nationality and passive personality grounds. Such treaties normally also provide
for mutual assistance and for the offences in question to be deemed to
be included as extraditable offences in any extradition treaty concluded
The phrase 'conditional universal jurisdiction' has also been suggested: see A. Cassese,'When may Senior State Officials be Tried for International Crimes?', 13 EJIL, 2002, pp.
853, 856.
'I6 ICJ Reports, 2002, paras. 41 and42. See also the Separate Opinion ofJudge Guillaume, whouses the term 'subsidiary universal jurisdiction' to refer to the international conventionsin question providing for the trial of offenders arrested on national territory and not
extradited: see para. 12.
'I7 See e.g. the Belgian laws of 16 Tune 1993 and 3 February 1999. However, this was amended
on 7 May 2003 to exclude prosecution ~vherethe matter should be brought before either
interilatioilal trib~ulalsor tribunals with a teritorial or nationality conilectioil to theoffence or alleged offenders. On 22 June 2003 a further amendment required that either
the accused or victim be Belgian citizens or residents of at least three years' standing.
See also German Code of Crimes Against International Law in force from 30 June 2003.
The related issue of immuillty froin prosecutloll for state officials is dealt with below,
chapter 13, p. 621.

between states parties. The agreements in question include, for example,
the UN Torture Convention, 1984118 and treaties relating to hostagetaking, currency counterfeiting, hijacking and drug trafficking. Suchtreaties are then normally implemented nationally.'19
It is interesting to note that the International Law Commission's Draft
Statute for an International Criminal Court proposed that the court would
have jurisdiction in certain conditions with regard to a range of 'treaty
crimes','20but this suggestion was not found acceptable in later discussions
and does not appear in the 1998 Rome Statute. It is helpful to look at someof these treaties. The Convention against Torture,1984 provides that eachstate party shall ensure that all acts of torture are offences under domestic
criminal law12' and shall take such measures as may be necessary to establish its jurisdiction over torture offences where committed in any territory
under its jurisdiction or on board a ship or aircraft registered in the state
concerned or when the alleged offender is a national or when the victim
is a national if that state considers it appropriate.'" Further, each stateparty agrees to either extradite or prosecute alleged offender^,'^^ while
agreeing that the offences constitute extraditable offences within the context of extradition agreements concluded between states parties.124This
Convention was the subject of consideration in Exparte Pinochet (No. 3),
where the majority of the House of Lords held that torture committed
outside the UK was not a crime punishable under UIZ law until the provisions of the Convention against Torture were implemented by s. 134of the Criminal Justice Act 1988.12' Lord Millett, however, took the viewthat torture was a crime under customary international law with universal
jurisdiction and that since customary international law was part of thecommon law,126English courts 'have and always have had extraterritorial
criminal jurisdiction in respect of universal jurisdiction under customaryinternational law'. 27'

ll"ee further above, chapter 6, p. 303.
'I9 See e.g. the UK Taking of Hostages Act 1982.
That is those arising out of the Geneva Conventions of 1949 and Protocol I thereto; theHague Convention, 1970; the Montreal Convention, 1971; the Apartheid Convention,
1973; the Internationally Protected Persons Convention, 1973; the Hostages Convention,
1979; the Torture Convention, 1984; the Safety of Maritime Navigation Convention andProtocol, 1988 and the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988: see Report of the International Law Comn~ission,Al49110,
1994, p p 141 ff.
Article 4.
'22 Article 5.
'13 Article 7.
12"rticle
8.
[2000] 1 AC 147, 148, 159-60, 188-90,202,218-19 and 233; 119 ILR, p. 135.
""eeabove, chapter 4, p. 128.
[2000] 1 AC 147,276; 119 ILR, p. 135. See also e.g. R. O'Keefe, 'Customary Iilternational
Crimes in English Courts', 72 BYIL, 2001, p. 293.

''"

'"
'"
'"

600

I N T E R N A T I O N A L LAW

The Convention on the Prevention and Punishment of Crimes against
Internationally Protected Persons, including Diplomatic Agents, wasadopted in 1973 by the General Assembly of the United Nations andcame into force in 1977. This stipulates that contracting states shouldmake acts such as assaults upon the person, premises and transport ofsuch persons a crime under their domestic law."8 This, of course, would
require little if any revision of existing penal statutes. Each state is to establish its jurisdiction over these crimes when committed in its territory
or on board ships or aircraft registered in its territory, or when the alleged
offender is a national or when the crimes have been committed against
an internationally protected person functioning on behalf of that state.'29
A person is regarded as internationally protected where he is a head ofstate or government, or foreign minister abroad, or state representative
or official of an international organi~ation."~The International Convention against the Taking of Hostages, 1979
came into force in 1983 and, like the Internationally Protected Persons
Treaty, requires each state party to make the offence punishable undernational law,l3' and provides that states parties must either extradite orprosecute an alleged offender found on their territory and incorporate
the offence of hostage-taking into existing and future extradition treaties.
The grounds upon which a state party may exercise jurisdiction are laid
down in article 5 and cover offences committed in its territory or on board
a ship or aircraft registered in that state; by any of its nationals, or if thatstate considers it appropriate, by stateless persons having their habitualresidence in its territory; in order to compel that state to do or abstain
from doing any act; or with respect to a hostage who is a national of thatstate, if that state considers it appropriate.
The Convention on the Safety of United Nations and Associated Personnel, 1994 provides that attacks upon UN or associated personnel orproperty be made a crime under national law by each state party'32 andthat jurisdiction should be established with regard to such offences when
the crime is committed in the territory of that state or on board a ship or
aircraft registered in that state or when the alleged offender is a national ofthat state. States parties may also establish their jurisdiction over any suchcrimes when committed by a stateless person whose habitual residence isin the state concerned, or with regard to a national of that state, or in an
12'
12'

Article 2. See e.g, the UK Internationally Protected Persons Act 1978.
Article 3.
" O Article 1.
13' See e.g. the UK Taking of Hostages Act 1982.
Article 9.

attempt to compel that state to do or to abstain from doing any act.'33 In
addition, the state in whose territory the alleged offender is present shalleither prosecute or extradite such person.134
As far as the hijacking of and other unlawful acts connected with aircraft
is concerned, the leading treaties are the Tokyo Convention on Offences
and Certain Other Acts Committed on Board Aircraft, 1963, the Hague
Convention for the Suppression of Unlawful Seizure ofhircraft, 1970 and
the Montreal Convention for the Suppression of Unlawful Acts against
the Safety of Civil Aviation, 1971. The latter two instruments arose as aresult of the wave of aircraft hijacking and attacks upon civilian planes
that took place in the late 1960s, and tried to deal with the problem of
how to apprehend and punish the perpetrators of such deeds.
The Tokyo Convention applies to both general offences and acts which,whether or not they are offences, may or do jeopardise the safety of theaircraft or of persons or property therein or which jeopardise good orderand discipline on board. It provides for the jurisdiction of the contracting
state over aircraft registered therein while the aircraft is in flight, or on thesurface of the high seas or on any other area outside the territory of any
state. Contracting states are called upon to take the necessary measures toestablish jurisdiction by municipal law over such aircraft in such circumstances. In addition, the Convention permits interference with an aircraftin flight in order to establish criminal jurisdiction over an offence committed on board in certain specific circumstances by contracting states
not being the state of registration. The circumstances specified are where
the offence has effect on the territory of such state; has been committed
by or against a national or permanent resident of such state; is against the
security of such state; consists of a breach of any rules or regulations relating to the flight or manoeuvre of aircraft in force in such state or where
the exercise of jurisdiction is necessary to ensure the observance of any
obligation of such state under a multilateral international agreement.13'
No obligation to extradite is provided for.
The Hague Convention provides that any person who, on board an
aircraft in flight, is involved in the unlawful seizure of that aircraft(or attempts the same), coininits an offence which contracting states undertake to make punishable by severe penalties. Each contracting state"' Article 10.
'35'"

Article 14.
Article 4. See S. Shuber, Jurisdiction over Crimes on Board Aircraft, The Hague, 1973; N. D.
royner, Aerial Hijackingas an International Crime, Dobbs Ferry, 1974, and E. Mcl'hinney,
Aerial Piracy and International Terrorism, 2nd edn, Dordrecht, 1987. See also the US AntiHijacking Act of 1974, and above, chapter 10, p. 472.

602

I N T E R N A T I O N A L LAW

is to take such measures as may be necessary to establish its jurisdiction
over the offence or related acts of violence when the offence is committed
on board an aircraft registered in that state, when the aircraft in question lands in its territory with the alleged offender still on board or when
the offence is committed on board an aircraft leased without a crew to alessee who has his principal place of business, or if the lessee has no suchplace of business, his permanent residence, in that state. The Convention
also provides that contracting states in the territory of which an alleged
offender is found must either extradite or prosecute him.
The Montreal Convention contains similar rules as to jurisdiction andextradition as the Hague Convention but is aimed at controlling and punishing attacks and sabotage against civil aircraft in flight and on the groundrather than dealing with hijacking directly.'" A Protocol to the Montreal
Convention was signed in 1988. This provides for the suppression of
unlawful acts of violence at airports serving international civil aviation
which cause or are likely to cause serious injury, and acts ofviolence which
destroy or seriously damage the facilities of an airport servin,0 international civil aviation or aircraft not in service located thereon or disrupt
the service of the airport.'"
The wide range of jurisdictional bases is to be noted, although universality as such is not included. Nevertheless, condemnation of this form ofactivity is widespread and it is likely that hijacking has become an international crime of virtually universal jurisdiction in practice.138Further,
it is possible that international terrorism may in time be regarded as acrime of universal j ~ r i s d i c t i 0 n . l ~ ~Of course questions as to enforcement will arise where states fail either
to respect their obligations under the above Conventions or, if they are
not parties to them, to respect customary law on the reasonable assumption that state practice now recognises hijacking as an unlawful act.140'

Note that neither the Tokyo nor the Hague Conventions apply to aircraft used in military,customs or police services: see articles l(4)and 3(2)respectively.
"'Note the Hindawi episode, where the European Community imposed sanctions upon
Syria in a situation where it emerged during a court case in the UK that an attempt tosmuggle a bomb onto an Israeli airliner in 1986 in London had been supported by Syrian
intelligence: see Keesing's Conteruporary Archives, pp. 34771-2 and 34883-4.
'" See US u. Yunis (No. 2 ) 681 F.Supp. 896,900-1 (1988);82 ILR, pp. 344,348.See also US
v. Yunis (No. 3) 924 F.2d 1086,1091 (1991);88 ILR, pp. 176, 181.
13' Note that in Flatotv 1,. Islamic R e p ~ ~ b lof
i cIran, the US District Court stated that 'international terrorism is subject to universal jurisdiction', 999 F.Supp. l, 14 (1998); 121 ILR,
p. 618.
14' See e.g. General Assembly resolution 2645 (XXV) and Security Council resolution 286(1970).
'j6

A number of possibilities exist, in addition to recourse to the United
Nations and the relevant international air organ is at ion^.'^^ Like-mindedstates may seek to impose sanctions upon errant states. The 1978 Bonn
Declaration, for example, agreed that 'in cases where a country refuses theextradition or prosecution of, those who have hijacked an aircraft and/or
does not return such aircraft' action would be taken to cease all flights
to and from that country and its airlines.'42Bilateral arrangements may
also be made, which provide for the return of, or prosecution of, hijacke r ~ .States' ~ ~ may also, of course, adopt legislation which enables them toprosecute alleged hijackers found in their territory,'44 or more generally
seeks to combat terrorism. The 1984 US Act to Combat International
Terrorism, for example, provides for rewards for information concerninga wide range of terrorist acts primarily (although not exclusively) within
the territorial jurisdiction of the
Other acts of general self-help have also been resorted to. In 1973, forexample, Israeli warplanes intercepted a civil aircraft in Lebanese airspacein an unsuccessful attempt to apprehend a guerrilla leader held responsible
for the killing of civilians aboard hijacked aircraft. Israel was condemned
for this by the UN Security Council1" and the International Civil Aviation
Organi~ation.'~'On the night of 10-11 October 1985, an Egyptian civil aircraft carrying
the hijackers of the Italian cruise ship Achille Lauro was intercepted over
the Mediterranean Sea by US Navy fighters and compelled to land in Sicily.
The US justified its action generally by reference to the need to combat
international terrorism, while the UK Foreign Secretary noted it was relevant to take into account the international agreements on hijacking andh ~ s t a ~ e - t a k i nHowever,~ . ' ~ ~ nothing in these Conventions, it is suggested,

See above, chapter 10, p. 472.
See UKMIL, 49 BYIL, 1978, p. 423. The states making the Declaration were the UK,
France, US, Canada, West Germany, Italy and Japan.
14"eee.g. the US-Cuban Memorandum of Understanding on Hijacking of Aircraft andI'essels and Other Offences, 1973.
'44 See e.g. the US Anti-Hijacking Act of 1974 and the UK Civil Aviation Act 1982 s. 92 andthe Aviation Security Act 1982.
See further, as to international terrorism, below, chapter 20, p. 1048.
146 Resolution 337 (1973).
ICAO Doc. 9050-LCl169-1, at p. 196 (1973).
148 See Keesing's Contemporary Archives, p. 34078 and The Tirnes, 6 February 1986, p. 4. In
this context, one should also note the hijack of a TIVA airliner in June 1985, the murderof a passenger and the prolonged detention in the Lebanon of the remaining passengers
and the crew: see Keesing's Contemporary Archives, p. 34130. See also A. Cassese, Violenceand Law in tlie Modern Age, Cambridge, 1988, chapter 4.
14'

14'

'"
'"

604

I N T E R N A T I O N A L LAW

would appear to justify an interception of a civilian aircraft over the highseas or over any area other than the territory of the intercepting state andfor specified reasons. The apprehension of terrorists is to be encouraged,
but the means must be legitimate. On 4 February 1986, the Israeli Air
Force intercepted a Libyan civil aircraft en route from Libya to Syria in
an attempt to capture terrorists, arguing that the aircraft in question waspart of a terrorist ~ p e r a t i o n . ' ~ ~Nevertheless, there may be circumstances where an action taken by astate as a consequence of hostile hijacking or terrorist operations would
be justifiable in the context of self-defence.'''Illegal apprehension of suspects and the exercise of juri~diction'~'
It would appear that unlawful apprehension of a suspect by state agentsacting in the territory of another state is not a bar to the exercise of jurisdiction. Such apprehension would, of course, constitute a breach ofinternational law and the norm of non-intervention involving state re~ ~ o n s i b i l i tunless~ , ' ~ ~the circumstances were such that the right of selfdefence could be pleaded.'53 It could be argued that the seizure, being a
violation of international law, would only be compounded by permitting~ ~ international practice
the abducting state to exercise j u r i s d i ~ t i o n , 'buton the whole demonstrates otherwise."' In most cases a distinction isclearly drawn between the apprehension and jurisdiction to prosecute
See The Times, 5 February 1986, p. 1.
See e.g. as to the 1976 Entebbe incident, below, chapter 20, p. 1033.
See e.g. F. Morgenstern, 'Turisdiction in Seizures Effected in Violation of International
Law', 29 BYIL, 1952, p. 256; P. O'Higgins, 'Unlawful Seizure and Irregular Extradition',
36 BYIL, 1960, p. 279; A. Lo~venfeld,'US Law Enforcement Abroad: The Constitution
and International Law', 83 AJIL, 1989, p. 880; Lowenfeld, 'US Law Enforcement Abroad:
The Constitution and International Law, Continued', 84 ATIL, 1990, p. 444; Lowenfeld,'Kidnapping by Government Order: A Follow-Up', 84 AJIL, 1990, p. 712, and Lowenfeld,'Still More on Kidnapping', 85 AJIL, 1991, p. 655. See also F. A. Mann, 'Reflections on theProsecution of Persons Abducted in Breach of International Law' in International Law a t
a Time of Perplexity (ed. Y. Dinstein), Dordrecht, 1989, p. 407, and Higgins, Problerns andProcess, p. 69.
Is2 See e.g. article 2(4) of the United Nations Charter and Nicaragua v. US, ICJ Reports,
1986, p. 110; 76 ILR, p. 349. See further below, chapter 20.
Is' Note, in particular, the view of the Legal Adviser of the US Department of State to
the effect that '[wlhile international law therefore permits extraterritorial "arrests" insituations which permit a valid claim of self-defence, decisions about any extraterritorial
arrest entail grave potential implications for US personnel, for the United States, and forour relations with other states', 84 ATIL, 1990, pp. 725, 727.
'j4 See Mann, 'Jurisdiction', p. 415.
ls5 See e.g. the Eicllrnann case, 36 ILR, pp. 5 and 277.

l"

lin

and one should also distinguish situations where the apprehension has
taken place on or over the high seas from cases where it has occurred without consent on the territory of another state. A further distinction thathas been made relates to situations where the abduction has taken placefrom a state with which the apprehending state has an extradition treaty
which governs the conditions under which movement of alleged offenders
occurs between the two. A final distinction may be drawn as between cases
depending upon the type of offences with which the offender is charged,
so that the problem of the apprehension interfering with the prosecution
may be seen as less crucial in cases where recognised international crimes
are alleged."6 Of course, any such apprehension would constitute a violation of the human rights of the person concerned, but whether thatwould impact upon the exercise of jurisdiction as such is the key issue
here.
Variations in approaches are evident between states. The US Court ofAppeals in US v. Toscanino1j7held that the rule that jurisdiction was
unaffected by an illegal apprehension'58 should not be applied where
the presence of the defendant has been secured by force or fraud, but
this approach has, it seems, been to a large extent eroded. In US ex rel.
Ltljan v. GenglerE9 it was noted that the rule in Toscanino was limited
to cases of 'torture, brutality and similar outrageous conduct'.'60 The
issue came before the US Supreme Court in US v. ~ l v a r e z - ~ a c h a i n , ' ~ 'in which the view was taken that the issue essentially revolved arounda strict interpretation of the relevant extradition treaty between Mexicoand the US. The Court noted that where the terms of an extradition
treaty in force between the states concerned prohibited abduction thenjurisdiction could not be exercised. Otherwise the rule in Kerwould apply
and the prosecution would proceed. This applied even though there weresome differences between the cases, in that, unlike the situation in Ker,15'

See Higgins, Proble~nsand Process, p. 69.

'j'

500 F.2d 267 (1974); 61 ILR, p. 190.

'" See, in particular, Ker v. Illinois 119 US 436 (1886) and Frisbie v. Collins 342 US 519(1952). These cases have given rise to the reference to the Kerr-Frisbie doctrine.
510 F.2d 62 (1975); 61 ILR, p. 206. See also C'S v. Lira 515 F.2d 68 (1975); Lowenfeld,'Kidnapping', p. 712; Afotrneh v. Attorney-General 10 AD, 17. 327, and Re Argoud 45 ILR,
p. 90.
160 This approach was reaffirmed in C'S v. Ytrnis both by the District Court, 681 F.Supp. 909,
918-21 (1988) and by the Court of Appeals, 30 ILM, 1991, pp. 403,408-9.
16' 119 L Ed 2d 441 (1992); 95 ILR, p. 355. See also M. Halberstam, 'In Defence of theSupreme Court Decision in Alvarez-Machain: 86 AJIL, 1992, p. 736, and M. 1. Glennon,'State-Sponsored Abduction: A Comment o n United States r. Alvarez-Machain', ibid.,
p. 746.
Is'606

I N T E R N A T I O N A L LAW

the US government had been involved in the abduction and the state from
whose territory the apprehension took place had protested.16'
In the UK, the approach has appeared to alter somewhat. In R v. Plymouth Justices, exparte river,'^^ it was noted that once a person was inlawful custody within the jurisdiction, the court had no power to inquire
into the circumstances in which he had been brought into the jurisdiction.
However, in R v. Horseferry Road Magistrates' Court, exparte en nett,'^^the House of Lords declared that where an extradition treaty existed withthe relevant country under which the accused could have been returned,'our courts will refuse to try him if he has been forcibly brought within our
jurisdiction in disregard of those procedures by a process to which ourown police, prosecuting or other executive authorities have been a knowing party'.16' The approach in this case was extended in R v. Latif tocover entrapment.16' However, where an accused was taking legal action to quash a decision to proceed with an extradition request, the factthat he had been lured into the jurisdiction was not sufficient to vitiate the proceedings since safeguards as to due process existed in the lightof the Home Secretary's discretion and under the law of the state to whom
he was to be extradited.16' Further, in Exparte Wesqallen, the High Court
took the view that where there had been no illegality, abuse of power or
119 L Ed 2d 451; 95 ILR, p. 363. See also the Dissenting Opinion, which took the view thatthe abduction had in fact violated both international law and the extradition treaty, 119
L Ed 2d 456-79; 95 ILR, pp. 369-79. The accused was eventually acquitted and returned
to Mexico: see Alvarez-Machain v. Ur~itedStates 107 F.3d 696, 699 (9th Cir. 1996). He
also commenced an action for conlpensation. In that action the US Court of Appeals for
the Ninth Circuit stated that his abduction was a ~ ~ i o l a t i oofn the la~.vof nations in thatinternational human rights law had been breached: see Alvarez-~Muckaiilv. United Stater
41 ILM, 2002, pp. 130, 133.
'19861 1 QB 95; 77 ILR, p. 351. See also Exparte Susaiznah Scott (1829) 9 B & C 446;
Sinclair v. HMAdvocate (1890) 17 R (J) 38 and R v. Officer Cornma~zdingDepotBartalion
RASC Colchester, ex parte Elliott [I9491 1 All ER 373. Cf. R v. Bow Street Magistrates,
exparte Mackersoil ( 1981) 75 Cr App R 24.
'64 [I9931 3 WLR 90; 95 ILR, p. 380.
165 [I9931 3 TITLR 105; 95 ILR, p. 393, per Lord Griffiths. See also Lord Bridge, [I9931 3 WLR
110; 95 ILR, p. 399 and Lord Slynn, [I9931 3 TI'LR 125; 95 ILR, p. 416. The House ofLords was also influenced by the decision of the South Africa Supreme Court in State v.
Ebrahim, 95 ILR, p. 417, where the conviction and sentence before a South African courtof a person were set aside as a consequence of his illegal abduction by state officials from
Swaziland. This view was based both on Roman-Dutch and South African common law
and on international law.
166 [I9961 1 WLR 104, see Lord Steyn, at 112-13. See also R v. A4ullen [1999] 2 Cr App R
143.
16' See In re Schmidt [I9951 1 AC 339; 111 ILR, p. 548 (House of Lords).
16''"

violation of international law or of the domestic law of the foreign states
involved, the decisions under challenge could not be impugned nor thesubsequent criminal proceedings be vitiated.'68
The US Alien Tort Claims
Under this Act, the First Congress established original district court jurisdiction over all causes where an alien sues for a tort 'committed inviolation of the law of nations or a treaty of the United ~tates:'" In
Filartiga v. ~ena-lrala,'" the US Court of Appeals for the Second Circuit
interpreted this provision to permit jurisdiction over a private tort action
by a Paraguayan national against a Paraguayan police official for acts of
torture perpetrated in that state, it being held that torture by a state official constituted a violation of international law. This amounted to an
important move in the attempt to exercise jurisdiction in the realm ofinternational human rights violations, although one clearly based upon adomestic statute permitting such court competence. The relevant issues
in such actions would thus depend upon the definition of the 'law ofnations' in particular cases.172
In Tel-Oren v. Libyan Arab ~epublic,"~
however, the Court dismissed
an action under the same statute brought by survivors and representatives
ofpersons murdered in an armed attack on an Israeli bus in 1978 for lack ofsubject-matter jurisdiction. The three judges differed in their reasoning.
Judge Edwards held that the law of nations did not impose liability on nonstate entities like the PLO. Judge Bork, in a departure from the Filartiga
principles, declared that 'an explicit grant of a cause of action [had toexist] before a private individual [will] be allowed to enforce principles
of international law in a federal tribunal',174while Senior Judge Robb
119981 1 WLR 652, 665-7. See also C. Warbrick, 'Judicial J~~risdiction
and Abuse ofProcess: 49 ICLQ, 2000, p. 489.
16' 28 USC, para. 1350 (1982), originally enacted as part of the Judiciary Act of 1789. See
also 28 USC, para. 1331, and above, chapter 4, p. 145.
17' Cassese notes that the extensive civil jurisdiction claimed under this Act has not beenchallenged by other states, 'When may Senior State Officials', p. 859.
17' 630 F.2d 876 (2d Cir. 1980); 77 ILR, p. 169. See also 577 F.Supp. 860 (1984); 77 ILR, p.
185, awarding punitive damages.
17' In establishing the content of the 'law of nations: the courts must interpret internationallaw as it exists today, 630 F.2d 876, 881 (1980); 77 ILR, pp. 169, 175.
17' 726 F.2d 774 (1984); 77ILR,p. 204. See also 'Agora: 79 AJIL, 1985,pp. 92 ff, for adiscussionof the case.
174 726 F.2d 801; 77 ILR, p. 230.
16'

608

I N T E R N A T I O N A L LAW

held that the case was rendered non-justiciable by the political question
doctrine.
Further restrictions upon the Filartiga doctrine have also been manifested. It has, for example, been held that the Alien Tort Claims Act does
not constitute an exception to the principle of sovereign immunity sothat a foreign state could not be sued,I7" while it has also been held that
US citizens could not sue for violations of the law of nations under the
In Sanchez-Espinoza v. ~ e a ~ a nsuit, ' was~ ~ brought against a variety ofpresent and former US executive officials for violation inter alia of domestic and international law with regard to the US support of the 'Contra'
guerrillas fighting against the Nicaraguan government. The Alien Tort
Claims Act was cited, but the Court of Appeals noted that the statute arguably only covered private, non-governmental acts that violated a treaty
or customary international law and, relying on Tel-Oren, pointed out that
customary international law did not cover private conduct 'of this sort'."8Thus the claim for damages could only be sustained to the extent that thedefendants acted in an official capacity and, even if the Alien Tort Claims
Act applied to official state acts, the doctrine of domestic sovereign im~ ~ US Court ofmunity precluded the claim. In KadiC v. ~ a r n d i i C , lthe
Appeals emphasised the 'liability of private persons for certain violationsof customary international law and the availability of the Alien Tort Act toremedy such violations'.1s0 In particular, it was noted that the proscription of genocide and war crimes and other violations of international
humanitarian law applied to both state and non-state actors, althoughtorture and summary execution (when not perpetrated in the course of
genocide or war crimes) were proscribed by international law only whencommitted by state officials or under colour of law.18' Even in this case, it
may be that all that was required was 'the semblance of official authority'
rather than establishing statehood under the formal criteria of international law.ls2 The Court also held that the Torture Victim Protection Act
1992, which provides a cause of action for torture and extrajudicial killingby an individual 'under actual or apparent authority, or colour of law, of
any foreign nation', was not itself a jurisdictional statute and depended
Sidermun v. Repz~blicofilrgentina, 965 F.2d 699 (1992).
Hundel v. Artl~kovic601 F.Supp. 1421 (1985); 79 ILR, p. 397.
770 F.2d 202 (1985); 80 ILR, p. 586.
17' 770 F.2d 206-7; 80 ILR, pp. 590-1.
179 34 ILM, 1995, p. 1592.
lsO Ibld., p. 1600.
lS2 Ibid., p. 1607.
''I
Ibzd., pp. 1602-6.
17?
176

upon the establishment of jurisdiction under either the Alien Tort Act orunder the general federal question jurisdiction of section 1331.1s3
The Alien Tort Act was relied upon again in the Amerada Hess casewhich concerned the bombing of a ship in international waters by
Argentina during the Falklands war and where it was claimed that the federal courts had jurisdiction under the Act. A divided Court of ~ ~ p e a l s ' ~ ~held that the Act provided, and the Foreign Sovereign Immunities Act did
not preclude,'85 federal subject-matter jurisdiction over suits in tort byaliens against foreign sovereigns for violations of international law. However, the Supreme Court unanimously disagreed.'86 It was noted that the
Act did not expressly authorise suits against foreign states and that at thetime the Foreign Sovereign Immunities Act was enacted, the 1789 Act had
never provided the jurisdictional basis for a suit against a foreign state.18'
Since the Congress had decided to deal comprehensively with sovereign
immunity in the Foreign Sovereign Immunities Act, it appeared to followthat this Act alone provided the basis for federal jurisdiction over foreign states. This basis was thus exclusive. The Court did note, however,that the Alien Tort Claims Act was unaffected by the Foreign Sovereignl~~Immunities Act in so far as non-state defendants were ~ 0 n c e r n e d . In
Alvarez-Machain v. United States, the accused in the case noted above'89
commenced an action for compensation under the Act following his acquittal. The Court of Appeals for the Ninth Circuit rejected the claim that
the Act required that the international law principle violated should also
constitute a norm of jus cogens. The Court also rejected the contention
that the applicant could sue for the violation of Mexican sovereignty implicit in his abduction. However, it affirmed that the applicant's rights
to freedom of movement, to remain in his country and to security ofhis person (which are part of the 'law of nations') were violated, while
Ibzd., pp. 1607-8. Note, however, that since the Antiterrorism and Effective Death Penalty
Act 1996 amending the Foreign Sovereign Immunities Act, an exception to immunity iscreated n~itllregard to states, designated by the Department of State as terrorist states,
which committed a terrorist act, or provided illaterial support and resources to an individual or entity which committed such an act, which resulted in the death or personal
injury of a US citizen.
lS4 Anzerada Hess Shipping Corp. v. Argentine Republic 830 F.2d 421 (1987); 79 ILR, p. 8.
18' See below, chapter 13, p. 630.
lS6 Argentine Republic v. Ainerada Hess Shipping Corp. 109 S. Ct. 683 (1989); 81 ILR, p. 658.
18' 109 S. Ct. 689; 81 ILR, pp. 664-5.
lS8 109 S. Ct. 690. See also Smith v. Libya 101 F.3d 239 (1996); 113 ILR, p. 534.
18"ee p. 605.

18'

610

I N T E R N A T I O N A L LAW

his detention was arbitrary since not pursuant to a Mexican warrant.
Accordingly, compensation under the Act could be claimed.lgO

The practice of extradition enables one state to hand over to anothersuspected or convicted criminals who have fled abroad. It is based uponbilateral treaty law and does not exist as an obligation upon states incustomary law.19' It is usual to derive from existing treaties on the subject
certain general principles, for example that of double criminality, i.e. thatthe crime involved should be a crime in both states ~ o n c e r n e d ,and
' ~ ~thatof specialty, i.e. a person surrendered may be tried and punished only forthe offence for which extradition had been sought and granted.'" In
general, offences of a political character have been excl~ded,~"but thiswould not cover terrorist activities.lg6As noted above, it is common for
19'

41 ILM, 2002, p. 130. See also the decision of 3 Tune 2003.

'" See e.g. I. A. Shearer, Extradition irl biterrlational Law, Leiden, 1971; M. C. Bassiouni,
International Extradition and M'orld Pi~blicOrder, Leiden, 1974; I. Stanbrook and C.
Stanbrook, The Law and Practice ofExtradition, Chichester, 1980; M . Forde, The Law ofExtradition irz the UK,London, 1995; A. Jones, Jones on Extradition, London, 1995; G. Gilbert,
Aspects of Extradition Law, Dordrecht, 1991, and Gilbert, Transnational Fugitive Offenders in International Law: Extradition and Other Mechanisms, The Hague, 1998; Henkin
et al., Iriterrzational Law Cases and Materials, p. 1111 and Oppenheinl's International Law,
p. 958. See also Study of the Secretariat on Succession of States in Respect of Bilateral
Treaties,Yearbook of the ILC, 1970, vol. 11, pp. 102, 105.
19' See e.g, the Joint Declaration of Judges Evensen, Tarassov, Guillaume and Aguilar Maudsley, the Lockerbiecase, ICT Reports, 1992, pp. 3,24; 94 ILR, pp. 478,507 and the Dissenting
Opinion of Tudge Bedjaoui, ICT Reports, 1992, p. 38; 94 ILR, p. 521.
19' But see now the House of Lords decisions in Government ofDenmark v. Nielsen [I9841 2
All ER 81; 74 ILR, p. 458 and L'nited States Governrnent v. lMcCaffery [I9841 2 All ER 570.
19' See e.g. Oppenheirrl's International Law: p. 961.
19' Ibid., p. 962.
19'
See e.g. the European Convention on the Suppression of Terrorism, 1977, article 1 of
~ ~ h i providescha list of offences which are not to be regarded as political offences orinspired by political motives, an approach which is also adopted in article 11 of theConvention for the Suppression of Terrorist Bombing, 1997. See also the McMullencase, 74 ATIL, 1980, p. 434; the Eain case, ibid., p. 435; Re Piperno, ibid., p. 683 andCTS v. Mackin 668 F.2d 122 (1981); 79 ILR, p. 459. A revised directive on international
extradition was issued by the US Department of State in 1981: see 76 AJIL, 1982, pp. 1549. Note also the view of the British Home Secretary, The Tinzes, 25 June 1985, p. 1, that thepolitical offences 'loophole' as it applied to violent offences was not suitable to extradition
arrangements between the democratic countries 'sharing the same high regard for thefundamental principles of justice and operating similar independent judicial systems'.
The UK law relating to extradition has now been consolidated in the Extradition Act
1989. See also Governrnent ofBelgium v. Postlethtvaite [I9871 2 All ER 985 and R v. Chief
Metropolitan Magistrate, ex parte Secretary of State for the Home Department [I9881 1

many treaties laying down multiple bases for the exercise of jurisdiction toinsist that states parties in whose territory the alleged offender is present
either prosecute or extradite such person.19' In addition, many treaties
provide for the automatic inclusion within existing bilateral extradition
treaties between states parties to such treaties of the offence ~0ncerned.I'~
Many states will not allow the extradition of nationals to another state,"'but this is usually in circumstances where the state concerned has wide
powers to prosecute nationals for offences committed abroad. Further,
the relevance of human rights law to the process of extradition should be
noted.200
Extraterritorial j u r i s d i ~ t i o n ~ ~ 'Claims have arisen in the context of economic issues whereby somestates, particularly the United States, seek to apply their laws outside their
WLR 1204.Attempts are proceeding within the European Union to make extradition
between member states quicker and easier: see the Convention on Sinlplified Extradition
Procedure, 1995 and the Convention on Extradition between the Member States of theEuropean Union, 1996,implemented into UK law by the European Union Regulations
2002 (made under the Anti-terrorism, Crime and Security Act 2001),thus amending theExtradition Act 1989.
See above, p. 597.A new Extradition Bill is currently before Parliament. On 31 March
2003,the UK and the US signed a new extradition treaty to bring UKIUS procedures
more into line with extradition arrangements with European countries by removing theneed for prima facie evidence, but still requiring a detailed statement of the facts of thecase to be provided: see Home Office Press Release, 09712003,31 March 2003.
19' See e.g. article 8 of the Hague Convention for the Suppression of the Unlawful Seizureof Aircraft, 1970,article 8 of the Montreal Convention for the Suppression of Unla~vfulActs against the Safety of Civil Aviation, 1971,article 8 of the Internationally Protected
Persons Convention, 1973 and article 4 of the European Convention for the Suppressionof Terrorism, 1977.
199 See e.g. article 3(l)of the French Extradition Law of 1927,and article 16 ofthe Basic Lawof the Federal Republic of Germany.
'0° See e.g. the Soeringcase, European Court of Human Rights, 1989,Series A, No. 161.
lo' See e.g. Extraterritorial Jtrrisdiction (ed. A. V. Lowe), London, 1983;D. Rosenthal and W.
Knighton, National Laws and International Conlmerce, London, 1982; K. M. Meessen,'Antitrust Jurisdiction under Customary International Law', 78 AJIL, 1984, p. 783;
A. V. Lowe, 'Blocking Extraterritorial Jurisdiction: The British Protection of Trading
Interests Act 1980: 75 AJIL, 1981,p. 257;Akehurst, 'Jurisdiction', pp. 190 ff.; Extraterritorial Application of Law and Responses Thereto (ed. C. Olmstead), Oxford, 1984; B.
Stern, 'L'Extra-territorialite "Revisitee": Oh I1 est Question des Affaires Alvarez-Machain,
Pate de Bois et de Quelques Autres: AFDI, 1992,p. 239;Higgins, Problerns and Process,p. 73, and Oppenheim's International Law, p. 466. See also P. Torremans, 'Extraterritorial Application of EC and US Competition Law: 21 European Law Review, 1996,
p.280.

'"

612

I N T E R N A T I O N A L LAW

territory202in a manner which may precipitate conflicts with other states.
Where the claims are founded upon the territorial and nationality theories
of jurisdiction, problems do not often arise, but claims made upon thebasis of the so-called 'effects' doctrine have provoked considerable controversy. This goes beyond the objective territorial principle to a situation
where the state assumes jurisdiction on the grounds that the behaviourof a party is producing 'effects' within its territory. This is so even though
all the conduct complained of takes place in another state.203The effects
doctrine has been energetically maintained particularly by the US in thearea of antitrust regulati~n.~'"he classic statement of the American doctrine was made in US v. Aluminum Co. o f ~ m e r i c a , ~in~which'
the Court
declared that:any state may impose liabilities, even upon persons not within its alle,'uiallce,
for conduct outside its borders that has consequences within its borders
which the state reprehend^."^Note that there is a general presumption against the extraterritorial application of legislation: see e.g. the House of Lords decision in Hollnes v. Bangladesh Birnurl Corporatiolz[I9891 1 AC 1112, 1126; 87 ILR, pp. 365,369, per Lord Bridge, and Ail- India v. Wiggins[I9801 1 WLR 815,819; 77 ILR, pp. 276,279, per Lord Bridge, and the US Supreme Court
decision in EEOC v. Arabian American Oil Company anddrarnco Services 113 L Ed2d274,
282 (1991); 90 ILR, pp. 617,622.
""hetrue 'effects' doctrine approach should be distinguished from other heads of jurisdiction such as the objective territorial principle, where part of the offence takes place
within the jurisdiction: see e.g. US u. Noriega 808 F.Supp. 791 (1992); 99 ILR, p. 143.
In many cases the disputes have centred upon nationality questions, the US regarding
subsidiaries of US conlpanies abroad as of US nationality even where such companies
have been incorporated abroad, while the state of incorporation has regarded them as of
its nationality and thus subject not to US law but to its law: see e.g. Higgins, Probleins
and Process, p. 73.
'04 See e.g. the US Sherman Antitrust Act 1896, 15 USC, paras. 1 ff. See also the controversies
engendered by the US freezing of Iranian assets in 1979 and the embargo imposed under
the Export Administration Act in 1981 and 1982 on equipment intended for use on the
Siberian gas pipeline, R. Edwards, 'Extraterritorial Application of the US Iranian Assets
Control Regulations: 75 AJIL, 1981, p. 870; J. Bridge, 'The Law and Politics of UnitedStates Foreign Policy Export Controls: 4 Legal Studies, 1984, p. 2, and A. V. Lowe, 'Public
International Law and the Conflict of Laws: 33 ICLQ, 1984, p. 575.
*05 148 F.2d 416 (1945).
'06 Illid., p. 443. This approach was reaffirmed in a series of later cases: see e.g. US v. Timken
Roller Bearing Co. 83 F.Supp. 284 (1949), affirmed 341 US 593 (1951); US v. The Watchmakers of Switzerland Information Center, Inc. cases, 133 F.Supp. 40 and 134 F.Supp. 710(1963);22 ILR, p. 168, and US v. GeneralElectric Co. 82 F.Supp. 753 ( 1949) and 115 F.Supp.
835 (1953). See also Hazeltine Research Inc. v. Zenith Radio Corporation 239 F.Supp. 51(1965), affirmed 395 US 100 (1969).
'02

The doctrine was to some extent modified by the requirement of intention
and the view that the effect should be substantial, but the wide-ranging
nature of the concept aroused considerable opposition outside the US,
as did American attempts to take evidence abroad under very broad pretrial discovery provisions in US law2'' and the possibility of treble damage
awards208The US courts, perhaps in view of the growing opposition offoreign states, modified their approach in the Timberlane Lumber Co. v.
Bank of ~ m e r i c a ~and' ~ Manrzington Mills v. Congoleum ~orporatiorz~"cases. It was stated that in addition to the effects test, of the earlier cases,
the courts had to take into account a balancing test, 'a jurisdictional
rule of reason', involving a consideration of other nations' interests andthe full nature of the relationship between the actors concerned and the
A series of factors that needed to be considered in the process ofbalancing was put forward in the latter case.'12 The view taken by theThird Restatement of Foreign Relations ~ a w ,it~should' ~ be noted, is thata state may exercise jurisdiction based on effects in the state, when theeffect or intended effect is substantial and the exercise of jurisdiction isreasonable. It is noted that the principle of reasonableness calls for limiting
the exercise of jurisdiction so as to minimise conflict with the jurisdictionof other states, particularly the state where the act takes place.'14 However,See e.g. the statement of the UK Attorney General that 'the wide investigatingprocedures
under the United States antitrust legislation against persons outside the United States who
are not United States citizens constitute an "extraterritorial" infringement of the proper
jurisdiction and sovereignty of the United Kingdom', Rio Tinto Zinc u. Mkstiirghouse
Electric Corporation [I9781 2 WLR 81; 73 ILR, p. 296. See also Lo~ve,Extraterritorial
Jurisdiction, pp. 159-60 and 165-71. But see Societe Internationale v. Rogers 357 US 197(1958);26 ILR, p. 123; US v. FirstNational CityBank396 F.2d 897 (1968); 38 ILR, p. 112;
In re M'estinghouse Electric Corporation 563 F.2d 992 (1977) and In re Uraniuirr Antitrust
Litigation 480 F.Supp. 1138 (1979).
'Ox See e.g. Meessen, y4ntitrust J~~risdiction',p. 794.
' 0 9 549 F.2d 597 (1976); 66 ILR, p. 270.
"O 595 F.2d 1287 (1979); 66 ILR, p. 487.
See particularly K. Brewster, Antitrust and American Business Abroad, New York, 1958.
212 595 F.2d 1287, 1297 (1979); 66 ILR, PP 487, 496. See also the Tirnberlane case, 549
F.2d 597, 614 (1976); 66 ILR, pp. 270, 285. The need for judicial restraint in applying
the effects doctrine in the light of comity was emphasised by the State Department: see
74 AJIL, 1980, pp. 179-83. See also the US Foreign Trade Antitrust Improvements Act
1982, where jurisdiction was said to be dependent on 'direct, substantial and reasonably
foreseeable effect:"jPara. 402, p. 239 and para. 403, p. 250.
'I4 See also the US Department of Justice, Antitrust Enforcement Gtridelines for International
Operations, 1988, pp. 31-2. But see now the Supreme Court's decision in Hartford Fire
Insurance Co. v. California 113 S. Ct. 2891 (1993), discussed below, p. 614.
'07

"'

614

I N T E R N A T I O N A L LAW

the assumption by the courts of a basically diplomatic function, thatis, weighing and considering the interests of foreign states, stimulated
criti~ism.~~'The US courts have recently modified their approach. In Luker Airways v. S a b e n ~ , the~ ' ~Court held inter alia that once US antitrust law
was declared applicable, it could not be qualified or ignored by virtueof comity. The judicial interest balancing under the Timberlane precedent should not be engaged in since the courts on both sides of the Atlantic were obliged to follow the directions of the executive. Accordingly,
the reconciliation of conflicting interests was to be undertaken only by
diplomatic negotiations. Quite how such basic and crucial differencesof opinion over the effects doctrine can be resolved is open to question
and international fora have been suggested as the most appropriate way
forward.217
In the Harvord Fire Insurance Co. v. California case before the US
SupremeJudge Souter writing for the majority stated that it
was well established that the relevant US legislation (the Sherman Act)'applies to foreign conduct that was meant to produce and did in fact
produce some substantial effect in the United state^'.^^' It was felt thata person subject to regulation by two states (here the UK with regard to
the London reinsurance market and the US) could comply with the lawsof both and there was no need in this case to address other considerations concerning international comity.220The Dissenting Opinion in thiscase took the view that such exercise of extraterritorial jurisdiction was
subject to the test of reas~nableness,~~'a view that the majority did notembrace.
See e.g. H. Maier, 'Interest Balancing andExtraterritoria1 Jurisdiction',31 AmericanJournalof Cornparative Law, 1983, p. 579, and Maier, 'Resolving Extraterritorial Conflicts or
There and Back Again', 25 Va. JIL, 1984, p. 7; W. Fugate, 'Antitrust Aspect of the Revised
Restatement of Foreign Relations Law', ibid., p. 49, and Bowett, 'Jurisdiction', pp. 21-2.
See also Lowe, Extraterritorial Jurisdiction, pp. 58-62.
" 6 731 F.2d 909 (1984). However, cf. the continuation of the Timberlanelitigation, 749 F.2d
1378 (1984), which reaffirms the approach of the first Timberlane case.
'I7 See e.g. Bowett, 'Jurisdiction: pp. 24-6 and Meessen, 'Antitrust Jurisdiction', pp. 808-10.
See also Lowe, Extraterritorial Jurisdiction, part 3.
113 S. Ct. 2891 (1993). See e.g. A. F. Lowenfeld, 'Conflict, Balancing of Interest, andthe Exercise of Jurisdiction to Prescribe: Reflections of the hisurarlce Antitrt~stCase', 89
AJIL, 1995, p. 42; P. R. Trimble, 'The Supreme Court and International Law: The Demiseof Restatement Section 403: ibid., p. 53, and L. Kramer, 'Extraterritorial Application ofAmerican Law after the Ins~lranceAntitrust Case: A Reply to Professors Lowenfeld andTrimble', ibid., p. 750.
221 Ibid., at 2921.
?'"113
S. Ct. 2891, at 2909.
22u Ibid., at 2911.
'IsForeign states had started reacting to the effects doctrine by the endof the 1970s and early 1980s by enacting blocking legislation. Under the
UK Protection of Trading Interests Act 1980, for example, the Secretary ofState in dealing with extraterritorial actions by a foreign state may prohibit
the production of documents or information to the latter's courts orauthorities. In addition, a UK national or resident may sue in an English
court for recovery of multiple damages paid under the judgment of aforeign
The Protection of Trading Interests Act was used in connection withthe action by the liquidator of Laker Airways to sue various major airlines,
the Midland Bank and McDonnell Douglas in the US for conspiracy toviolate the antitrust laws of the United States. Two of the airlines, British
Airways and British Caledonian, sought to prevent this suit in the US bybringing an action to restrain the liquidator in the UK. Thus, the effects
doctrine was not actually in issue in the case, which centred upon theapplication of the US antitrust law in connection with alleged conspiratorial activities in the US. The UK government, holding the view thatthe Bermuda I1 agreement regulating transatlantic airline
prohibited antitrust actions against UK airlines, issued instructions underthe 1980 Act forbidding compliance with any requirement imposed pursuant to US antitrust measures, including the provision of information.224
The Court of Appeal felt that the order and directions required them in
essence to prevent the Laker action in the
but the House of Lords
disagreed.226It was held that the order and directions did not affect theappellant's right to pursue the claim in the US because the 1980 Act wasconcerned with 'requirements' and 'prohibitions' imposed by a foreign
SO that the respondents would not be prohibited by the direction--- See Lowe, 'Conflict of Law', pp. 257-82; 50 BYIL, 1979, pp. 357-62 and 21 ILM, 1982, pp.

777

840-50. See also the Australian Foreign Proceedings (Prohibition of Certain Evidence)
Act 1976, the Danish Limitation of Danish Shipowners' Freedom to Give Information to
Authorities of Foreign Countries 1967 and the Finnish Law Prohibiting a Shipowner in
Certain Cases to Produce Documents 1968. In some cases, courts have applied aspectsof domestic law to achieve the same aim: see e.g. the Frt~ehaufcase, 5 ILL$, 1966, p. 476.
Several states have made diplomatic protests at extraterritorial jurisdictional claims, seee.g. Report of the 51st Session of the Irlternational Latr Association, 1964, pp. 565 ff.
223 See above, chapter 10, p. 468.
224 The Protection of Trading Interests (US Anti-trust Measures) Order 1983. Two directions
were issued as well.
225 British Airways Board v. Laker Airtvays Ltd [I9831 3 All ER 375; 74 ILR, p. 36.
226 [I9841 3 All ER 39; 74 ILR, p. 65. But see also Midland Bank plc v. Laker Airivays Ltd[I9861 2 WLR 707.
227 S. l(3).

616

I N T E R N A T I O N A L LAW

In
from paying damages on a 'judgment' given against them in thefact the Court refused to restrain the US action.
The Court also refused to grant judicial review of the order and directions, since the appellant had failed to show that no reasonable ministerwould have issued such order and directions, this being the requisite testin ministerial decisions concerning international relations.229The case,however, did not really turn on the 1980 Act, but it was the first time theissue had come before the courts.230
The dispute over extraterritoriality between the US and many otherstates has been apparent across a range of situations since the freezing of Iranian assets and the Siberian pipeline episode. The operationof the Western supervision of technological exports to the communist
bloc through- COCOM was also affected, while that system still existed,since the US sought to exercise jurisdiction with respect to exports fromthird states to communist states.231The adoption of legislation in the US
imposing sanctions on Cuba, Iran and Libya has also stimulated opposition in view of the extraterritorial reach of such measures. The extensionof sanctions against Cuba in the Cuban Democracy Act of 1992, for example, prohibited the granting of licences under the US Cuban Assets
Control Regulations for certain transactions between US-owned or controlled firms in the UK and Cuba, and this led to the adoption of an orderunder the Protection of Trading Interests Act 1980 by the UK government.2" The adoption of the Helms-Burton legislation in March 1996,
amending the 1992 Act by further tightening sanctions against Cuba,
provided inter alia for the institution of legal proceedings before the US
courts against foreign persons or companies deemed to be 'trafficking' in"' [I9841 3 All ER 39,55-6; 74 ILR, p. 84.
229 [ 19841 3 All ER 39,54-5;

74 ILR, p. 83. See also Associated Provi~lcialPicture Houses Ltd v.
Wednesbury Corp. [I9471 2 All ER 680.
See also the statement by the Minister of State, Department of Trade and Industry, listing
the statutory instruments, orders and directions made under the Protection of Trading
Interests Act, 220 HC Deb., cols. 768-70, Written Answers, 12 March 1993; UKMIL, 64
BYIL, 1993, pp. 644-6.
See the US and UK agreement in 1984 to consult should problems appear to arise withregard to the application of US export controls to individuals or businesses in the UK, or if
the UK were contemplating resorting to the Protection of Trading Interests Act in relation
to such controls, 68 HC Deb., col. 332, Written Answer, 23 November 1984, and 88 HC
Deb., col. 373, Written Answer, 6 December 1985. See also Current Legal Developments,
36 ICLQ, 1987, p. 398.
See UKMIL, 64 BYIL, 1993, p. 643. The proposed adoption of this legislation led to UK
protests as well: see UKMIL, 63 BYIL, 1992, pp. 726 ff.

"'
"'

'3'

property expropriated by Cuba from American nationals.233In addition,
the legislation enables the US to deny entry into the country of senior
executives (and their spouses and minors) of companies deemed by the
US State Department to be so 'trafficking'. This legislation, together withthe adoption of the D'Amato Act in mid-1996,"' led to protests frommany states, including the UK and Canada.235The Inter-American Juridical Committee of the Organisation of American States, 'directed' by
the OAS General Assembly 'to examine and decide upon the validity under international law' of the Helms-Burton legislation,2" unanimously
concluded that:the exercise of such jurisdiction over acts of 'trafficking in confiscated property' does not conform with the norms established by international law for
the exercise of jurisdiction in each of the following respects:a) A prescribing state does not have the rights to exercise jurisdiction
over acts of 'trafficking' abroad by aliens unless specific conditions are
fulfilled xvhich d o not appear to be satisfied in this situation.
b ) A prescribing state does not have the rights to exercise jurisdiction
over acts of 'trafficking' abroad by aliens under circumstances where neither the alien nor the conduct in question has any connnection with its
territory and where n o apparent connection exists between such acts andthe protection of its essential sovereign interests 2"

The European Community, in particular, has taken a strong stance on
the US approach. It declared in a letter to the Congressional Committee'' This part of the legislation was suspended by the President for six months as from July
1996: see, as to the legislation, 35 ILM, 1996, p. 357.
Intended to impose sanctions on persons or entities participating in the development of
the petroleunl resources of Iran or Libya. As to the legislation concerning Iran and Libya,
see 35 ILM, 1996, p. 1273.
Canada also announced that legislation would be introduced under the Foreign Extraterritorial hleasures Act 1985 to help protect Canadian companies against the US Act: see
Canadian Foreign Affairs Ministry Press Release No. 115, 17 June 1996. Note that the
UN General Assembly, in resolution 50110 (1995), called upon the US to end its embargo against Cuba. See also A. F. Lowenfeld, 'Congress and Cuba: The Helms-Burton
Act', 90 AJIL, 1996, p. 419; B. h1. Clagett, 'Title I11 of the Helms-Burton Act is Consistent with International Law', ibid., p. 434; S. K. Alexander, 'Trafficking in ConfiscatedCuban Property', 16 Dickinsoll Journal oflr~terrlatiollalLaw, 1998, p. 523, and A. V. Lowe,'US Extraterritorial Jurisdiction: The Helms-Burton and D'Amato Acts', 46 ICLQ, 1997,
p. 378.
236 OAS DOC.0EAISER.P AGldoc.3375196,4 June 1996.
2'7 CJIISOlIIIdoc.67196rev. 5, para. 9,23August 1996; 35 ILM, 1996,pp. 1329,1334. It should
be noted that under article 98 of the Charter of the OAS, Opinions of the Committee
have no binding effect.
'j4

"'

618

I N T E R N A T I O N A L LAW

considering changes in the US export control legislation in March 1984that:
US claims to jurisdiction over European subsidiaries of US companies andover goods and technology of US origin located outside the US are contrary
to the principles of international law and can only lead to cldshes of both apolitical and legal nature. These subsidiaries, goods and technology mustbe subject to the laws of the country where they are l ~ c a t e d . " ~There was an attempt to solve such extraterritoriality conflicts in theAgreement Regarding the Application of Competition Laws signed by
the European Commission on 23 September 1991 with theThiscalled inter alia for notification and co-ordination of such activities, withemphasis placed upon the application of comity. However, the European
Court of Justice held that the Commission had acted ultra vires in concluding such an agreement.240The Agreement was re-introduced in theDecision of the Council and the Commission of 10 April 1995, which rectified certain competence problems arising as a result of the decision.241
Nevetheless, it remains of uncertain value, not least because the questionof private law suits in the US is not dealt with. The root problems ofconflict have not been eradicated at all.
The adoption in 1992 of US legislation amending the Cuban Assets
Control Regime stimulated a demarche from the European Community protesting against the extraterritorial application of US law,242as did
the adoption of the Helms-Burton Act of 1996.~'~
However, the EU-US
Memorandum of Understanding of 1997 provided for the continued suspension by the US of Title I11 so long as the EU continued efforts topromote democracy in
However, the European Community itself has wrestled with thequestion of exercising jurisdiction over corporations not based in the"' Cited in Current Legal Developments, 36 ICLQ, 1987, p. 399. See also UKMIL, 56 BYIL,
1985, pp. 480-1.
See 30 ILM, 1991, p. 1487. See also Torremans, 'Extraterritorial: pp. 289 ff.
240 Case C-327191, Frenclz Republic v. Cornnlission ofthe European Conzrnunities [I9941 ECR
1-3641.
241 119951 OJ L 95145.
See UKMIL, 63 BYIL, 1992, p. 725.
See e.g. European Comillission Press Release ITE 27196, 18 July 1996 and 35 ILM, 1996,
p. 397. See also Council Regulation No. 2271196,36 ILM, 1997, p. 127, and the Canadian
Foreign Extraterritorial Measures Act 1996 (countering the Helms-Burton Act), ibid.,
p. 111.
244 36 ILM, 1997, p. 529.
2'9

"'

"'

Community in the field of competition law.245In ICI v. ~ o r n r n i s s i o n , ~ ~ ~the European Court of Justice established jurisdiction with regard to aseries of restrictive agreements to fix the price of dyestuffs on the groundthat the defendant undertakings had corporate subsidiaries that werebased within the Community, and declined to follow the Advocate General's suggestion247that jurisdiction should be founded upon direct andimmediate, reasonably foreseeable and substantial effect.
The Wood Pulp case248concerned a number of non-EC companies
and an association of US companies alleged to have entered into a pricefixing arrangement. The European Commission had levied fines on thejurisdictional basis that the effects of the price agreements and practices
were direct, substantial and intended within the E C . ' ~An~ action wasthen commenced before the European Court of Justice for annulment of
the Commission's decision under article 173 of the EEC Treaty. Advocate
General Darmon argued that international law permitted a state (andtherefore the EC) to apply its competition laws to acts done by foreigners
abroad if those acts had direct, substantial and foreseeable effects within
the state concerned.250
The Court, however, took the view that the companies concerned had
acted within the EC and were therefore subject to Community law. It wasnoted that where producers from third states sell directly to purchasers
within the Community and engage in price competition in order to win
orders from those customers, that constitutes competition within theCommunity, and, where such producers sell at prices that are actually coordinated, that restricts competition within the Community within themeaning of article 85 of the EEC Treaty. It was stressed that the decisive
factor was the place where the price-fixing agreement was actually implemented, not where the agreement was f~rmulated.~"In other words, theCourt founded its jurisdiction upon an interpretation of the territoriality"' ~ u nott the UK: see e.g. Attorney Generrtl's Reference (No. 1 of1982) [I9831 3 WLR 72,
where the Court of Appeal refused to extend the scope of local jurisdiction over foreign
conspiracies based on the effects principle.
246 119721 ECR 619; 48 ILR, p. 106.
Ibid., pp. 693-4.
248 A . Ahlstrom Oy v. Cominissioiz [I9881 4 CMLR 901.
Ibid., p. 916.
Ibid., p. 932.
Ibid., pp. 940-1. Note that the Court held that the association ofUS companies (KEA) was
not subject to Coininunity jurisdiction on the ground that it had not played a separaterole in the implementation within the Community of the arrangements in dispute, ibid.,
pp. 942-3.

'"
'"

620

I N T E R N A T I O N A L LAW

principle, if somewhat stretched. It did not take the opportunitypresented
to it by the opinion of the Advocate General of accepting the effects principle of jurisdiction. Nevertheless, the case does appear to suggest thatprice-fixing arrangements intended to have an effect within the Community that are implemented there would be subject to the jurisdiction oftheCommunity, irrespective of the nationality of the companies concernedand of the place where the agreement was reached.252
Suggestions for further reading
M. Akehurst, 'Jurisdiction in I~lternationalLaw', 46 BYIL, 1972-3, p. 145
R. Donner, The Regulation of ivationality in International Law, 2nd edn, New Yorli,
1995

F. A. Mann, 'The Doctrine of Jurisdiction in Illternatiollal Law Revisited After
Twenty Years', 186 HR, 1984, y. 9''' See e.g. D. Lange and J. B. Sandage, 'The Wood Pidp Decision and its Implications for
the Scope of EC Competition Law: 26 Cornmon Mmket Latv Review, 1989, p. 137, andL. Collins, European Community Law in the LTnited Kingdom, 4th edn, London, 1990,
p. 7. See also S. 1lTeatherilland P. Beaumont, EU Law, 3rd edn, London, 1999, chapter 22.

Immunities from jurisdiction

In the previous chapter, the circumstances in which a state may seek
to exercise its jurisdiction in relation to civil and criminal matters wereconsidered. In this chapter the reverse side of this phenomenon will be
examined, that is those cases in which jurisdiction cannot be exercised as
it normally would because of special factors. In other words, the concern
is with immunity from jurisdiction and those instances where there exist
express exceptions to the usual application of a state's legal powers.
The concept of jurisdiction revolves around the principles of statesovereignty, equality and non-interference. Domestic jurisdiction as a
notion attempts to define an area in which the actions of the organs ofgovernment and administration are supreme, free from internationallegal
principles and interference. Indeed, most of the grounds for jurisdiction
can be related to the requirement under international law to respect the
territorial integrity and political independence of other states.
Immunity from jurisdiction, whether as regards the state itself or as
regards its diplomatic representatives, is grounded in this requirement.
Although constituting a derogation from the host state's jurisdiction, in
that, for example, the UK cannot exercise jurisdiction over foreign ambassadors within its territory, it is to be construed nevertheless as an essential
part of the recognition of the sovereignty of foreign states, as well as an
aspect of the legal equality of all states.

Sovereign immunity1
Sovereignty until comparatively recently was regarded as appertaining toa particular individual in a state and not as an abstract manifestation' See generally e.g. H. Fox, The Law of State Irvim~inity,Oxford, 2002; I . Pingel-Lenuzza, Lex
Immunites des Etats en Droit International, Brussels, 1998; J. Brohmer, State Immunity andthe Violation ofHurnan Rights, The Hague, 1997; G. M. Badr, State Immunity, The Hague,
1984; S.Sucharitkul, State Immunities and TradingActivities in International Law, Leiden,
1959, and Sucharitkul, 'Immuilities of Foreign States before National Authorities: 149 HR,

622

I N T E R N A T I O N A L LAWof the existence and power of the state.2 The sovereign was a definable
person, to whom allegiance was due. As an integral part of this mystique,the sovereign could not be made subject to the judicial processes of his
country. Accordingly, it was only fitting that he could not be sued inforeign courts. The idea of the personal sovereign would undoubtedly
have been undermined had courts been able to exercise jurisdiction overforeign sovereigns. This personalisation was gradually replaced by theabstract concept of state sovereignty, but the basic mystique remained. In
addition, the independence and equality of states made it philosophicallyas well as practically difficult to permit municipal courts of one country to
manifest their power over foreign sovereign states, without their ~ o n s e n t . ~The classic case illustrating this relationship between territorial jurisdiction and sovereign immunity is T h e Schooner Exchange v. ~ c F a d d o n , ~decided by the US Supreme Court. Chief Justice Marshall declared that thejurisdiction of a state within its own territory was exclusive and absolute,
but it did not encompass foreign sovereigns. He noted that the:perfect equality and absolute independence of sovereigns. . .have given rise
to a class of cases in which every sovereign is understood to waive the exercise
of a part of that complete exclusive territorial jurisdiction, which has beenstated to be the attribute of every nation.'
1976, p. 87; I. Sinclair, 'The Law of Sovereign Immunity: Recent Developments', 167 HR,
1980, p. 113; UN Legislative Series, Materials on J~rrisdictionalImrntlnities of States andTheir Property, Ne~vYork, 1982; 10 Netherlands YIL, 1979; H. Lauterpacht, 'The Problem
of Jurisdictional Immunities of Foreign States', 28 BYIL, 1951, p. 220; R. Higgins, 'Certain
Unresolved Aspects of the Law of State Immunity', 29 NILR, 1982, p. 265; J. Crawford,'International Law of Foreign Sovereigns: Distinguishing Immune Transactions', 54 BYIL,
1983, p. 75; C. 1. Lewis, State and Diplomatic Irnrn~nity,3rd edn, London, 1990; C. H.
Schreuer, State Immunity: Some Recent Developnients, Cambridge, 1988; Nguyen Quoc
Dinh, P. Daillier and A. Pellet, Droit Iiltertlational Public, 7th edn, Paris, 2002, p. 450, andOppenheim's Inter~zationalLaw (eds. R. Y.Jennings and A. D. Watts), 9th edn, London,
1992, p. 341. See also the cases on sovereign immunity collected in ILR, volumes 63-5;
ILA, Report of the Sixtieth Conference, 1982, p. 325 and Report of the Sixty-sixth Conference,
1994, p. 452; Annuaire de l'lnstitut de Droit International, vol. 64 I, 1991, p. 84, and Reportof the International Law Commission, 1991, Al46110,p. 8.
See A. Watts, 'The Legal Position in International Law of Heads of State, Heads of Governments and Foreign Ministers', 247 HR, 1994 II1,p. 13.
"ee also Exparte Pinochet (No. 3) [2000] 1 AC 147,201 (per Lord Browne-Wilkinson) and
268-9 (per Lord Millett).
7 Cranch 116 (1812).
j Ibid., p. 137. It therefore followed that, 'national ships ofwar entering the port of a friendly
power open for their reception, are to be considered as exempted by the consent of thatpower from its jurisdiction'. Such rules would not apply to private ships which are susceptible to foreign jurisdiction abroad.

IMMUNITIES FROM TURISDICTION

623

Lord Browne-Wilkinson stated in Exparte Pinochet ( N o . 3 ) that,
It is a basic principle of international law that one sovereign state (the forum
state) does not adjudicate o n the conduct of a foreign state. The foreignstate is entitled to procedural immunity from the processes of the forum
state. This immunity extends to both criminal and civil liability.6

Lord Millett in Holland v. Lampen-Wove put the point as follows:
State immunity. . . is a creature of customary international law and derives
from the equality of sovereign states. It is not a self-imposed restrictiono n the jurisdiction of its courts which the United Kingdom has chosen to
adopt. It is a limitation imposed from without upon the sovereignty of theUnited Kingdom itself.'

Sovereign immunity is closely related to two other legal doctrines, nonjusticiability and act of state. Reference has been made earlier to the interaction between the various principles18but it is worth noting here that theconcepts of non-justiciability and act of state posit an area of international
activity of states that is simply beyond the competence of the domestic
tribunal in its assertion ofjurisdiction, for example, that the courts would
not adjudicate upon the transactions of foreign sovereign state^.^ On theother hand, the principle of jurisdictional immunity asserts that in particular situations a court is prevented from exercising the jurisdiction thatit possesses. Thus, immunity from jurisdiction does not mean exemption
from the legal system of the territorial state in question. The two concepts are distinct. In International Association of Machinists & Aerospace
Workers v. OPEC," it was declared that the two concepts were similar inthat they reflect the need to respect the sovereignty of foreign states, butthat they differed in that the former went to the jurisdiction of the court
and was a principle of international law, whereas the latter constituted aprudential doctrine of domestic law having internal constitutional roots.
Accordingly, the question of sovereign immunity is a procedural one and'[2000] 1 AC 147,201.
[2000] 1 WLR 1573, 1588; 119 ILR, 13. 367.
See above, chapter 4, p. 162.
See e.g. Buttes Gas arid Oil Co. v. Hammer (No. 3) [I9821 AC 888; 64 ILR, 13. 332; Buck v.
Attorney-Gerlera1[1965] 1 Ch. 745; 42 ILR, p. 11 and Goff J, I' Corlgreso del Partido [I9781
1 Q B 500, 527-8; 64 ILR, pp. 154, 178-9. See also Sinclair, 'Sovereign Immunity', p. 198.
See further above, p. 162.
l o 649 F.2d 1354, 1359; 66 ILR, pp. 413,418. Reaffirmed in Asociacion de Reclurnantes v. The
United lMexican Statec 22 ILM, 1983, pp. 625, 641-2. See also Rarnirez v. Weinberger 23
ILM, 1984, p. 1274; Goldwater r. Carter 444 US 996 (1979) and Empresa Exportadora de
Azucar v. Industria Azt~careraNacional S A [I9831 2 LL. R 171; 64 ILR, p. 368.

(34I N T E R N A T I O N A L LAW

one to be taken as a preliminary issue," logically preceding the issue ofact of state.12
In practice, however, the distinction is not always so evident and arguments presented before the court founded both upon non-justiciability
and sovereign immunity are to be expected. It is also an interesting point
to consider the extent to which the demise of the absolute immunity
approach has affected the doctrine of non-justiciability.
As far as the act of state doctrine is concerned in particular in thiscontext, some disquiet has been expressed by courts that the application of that principle may in certain circumstances have the effect ofreintroducing the absolute theory of sovereign immunity. In Letelier v.
Republic of Chile,I3for example, Chile argued that even if its officials hadordered the assassination of Letelier in the US, such acts could not be thesubject of discussion in the US courts as the orders had been given in
Chile. This was not accepted by the Court since to do otherwise would
mean emasculating the Foreign Sovereign Immunities Act by permitting
a state to bring back the absolute immunity approach 'under the guiseof the act of state doctrine:I4 In somewhat different circumstances, Kerr
LJ signalled his concern in Maclaine Watson v. The International Tin
Council l5 that the doctrine of non-justiciability might be utilised to bypass the absence of sovereign immunitywith regard to a state's commercial
activities.
Of course, once a court has determined that the relevant sovereign immunitylegislation permits it to hear the case, it may still face the act of stateargument. Such legislation implementing the restrictive immunity approach does not supplant the doctrine of act of state or non-justiciability,16although by accepting that the situation is such that immunity does not
apply the scope for the non-justiciability plea is clearly much reduced.''This has been reaffirmed by the International Court of Justice in its Advisory Opinion in
the Difference Relating to Ittzmunity from Legal Process case, ICJ Reports, 1999, pp. 62, 88.
" See e.g. Sider~nanv. Republic ofArgentina 965 F. 2d 699 (1992); 103 ILR, p. 454.
488 F.Supp. 665 (1980); 63 ILR, p. 378. Note that the US Court of Appeals has held that
the Foreign Sovereign Immunities Act 1976 does not supersede the act of state doctrine:
see Helen Liu v. Republic o f China, 29 ILM, 1990, p. 192.
l 4 488 F. S ~ p 665,
p 674.
l5 [I9881 3 WLR 1169, 1188; 80 ILR, pp. 191,209.
l6 See blternatiorlal Association of ,Machinists eS- Aerospace Mbrkers v. OPEC 649 F.2d 1354,
1359-60; 66 ILR, pp. 413, 418. See also Lit1 v. Rcp~iblicof China 29 ILM, 1990, pp. 192,
205.
l7 See the interesting discussion of the relationship between non-justiciability and iinmunity by Evans J in A~istruliaand Netv Zealand Bank v. Commonwealth ofAustralia, 1989,
transcript, pp. 59-60.
'I''

IMMUNITIES FROM TURISDICTION625

The absolute imrnunity approach
The relatively uncomplicated role of the sovereign and of government in
the eighteenth and nineteenth centuries logically gave rise to the conceptof absolute immunity, whereby the sovereign was completely immune
from foreign jurisdiction in all cases regardless of circumstances. However, the unparalleled growth in the activities of the state, especially withregard to commercial matters, has led to problems and in most countries to a modification of the above rule. The number of governmental
agencies and public corporations, nationalised industries and other stateorgans created a reaction against the concept of absolute immunity, partly
because it would enable state enterprises to have an advantage over private companies. Accordingly many states began to adhere to the doctrineof restrictive immunity, under which immunity was available as regards
governmental activity, but not where the state was engaging in commercial activity. Governmental acts with regard to which immunity would
be granted are termed acts jure imperii, while those relating to private ortrade activity are termed acts jure gestionis.
The leading practitioner of the absolute immunity approach has been
the United Kingdom, and this position was established in a number ofimportant cases.18
In the Parlement Belge case,19the Court of Appeal emphasised that the
principle to be deduced from all the relevant preceding cases was thatevery state
declines to exercise by means of its courts any of its territorial jurisdiction
over the person of any sovereign or ambassador of any other state, or overthe public property of any state which is destined to public u s e . . .thoughsuch sovereign, ambassador or property be within its jurisdi~tion.'~The wide principle expressed in this case gave rise to the question as towhat kind of legal interest it was necessary for the foreign sovereign tohave in property so as to render it immune from the jurisdiction of the
British courts.
l8 But note a series of early cases which are not nearly so clear in their adoption of a broad ab-

solute immunity doctrine: see e.g. The Prins Frederik (1820) 2 Dod. 451; DukeofBrurlswick
v. King ofHanover (1848) 2 HLC 1 and De Haber v. Queer1 of Portugal (1851) 17 QB 171.
See also Phillimore J in The Charkieh (1873) LR 4A and E 59.
'"1880) 5 PD 197.
O'
Brett LJ, ibid., pp. 214-15. Note, of course, that the principle relates to public property
destined for public, not private, use.

626

I N T E R N A T I O N A L LAW

Commonly regarded as the most extreme expression of the absolute
immunity doctrine is the case of the Porto ~lexandre." This concerneda Portuguese requisitioned vessel against which a writ was issued in an
English court for non-payment of dues for services rendered by tugs nearLiverpool. The vessel was exclusively engaged in private trading operations, but the Court felt itself constrained by the terms of the Parlenzent
Belge principle to dismiss the case in view of the Portuguese government
interest.
Differences of opinion as to the application of the immunity rules wererevealed in the House of Lords in the Cristina case.22 This followed a
Spanish Republican government decree requisitioning ships registeredin Bilbao which was issued while the Cristina was on the high seas. On
its arrival in Cardiff the Republican authorities took possession of theship, whereupon its owners proceeded to issue a writ claiming possession.
The case turned on the argument to dismiss the case, by the Republican
government, in view of its sovereign immunity. The majority ofthe Houseof Lords accepted this in view of the requisition decree taking over the
ship.
However, two of the Lords criticised the Porto Alexandre decision anddoubted whether immunity covered state trading ~essels,~%hileLord
Atkin took more of a fundamentalist absolute approach.2"
In Icrajina v. Tass ~ g e n c ~ the" Court of Appeal held that the Agency
was a state organ of the USSR and was thus entitled to immunity fromlocal jurisdiction. This was followed in Baccus SRL v. Servicio Nucionaldel trig^,^^ where the Court felt that the defendants, although a separate
legal person under Spanish law, were in effect a department of state of
the Spanish government. How the entity was actually constituted wasregarded as an internal matter, and it was held entitled to immunity fromsuit.
A different view from the majority was taken by Lord Justice Singleton
who, in a Dissenting Opinion, condemned what he regarded as the extension of the doctrine of sovereign immunity to separate legal en ti tie^.^'" [I9201 P. 30; 1 AD, 17. 146. See e.g. Sinclair, 'Sovereign Immunity', 17. 126. See also The

Jupiter [1924] P. 236, 3 AD, p. 136.

'' [1938] AC 485; 9 AD, p. 250.
*'See e.g. Lord Macmillan, [I9381 AC 485,498; 9 AD, p. 260.
'"1938]AC 485, p. 490. See also Berizzi Bros. C. r. SS Pesaro 271 US 562 (1926); 3 AD,
p. 186 and The Navernar 303 US 68 (1938); 9 AD, p. 176.
j' [I9491 2 All ER 274; 16 AD, p. 129. See also Cohen LJ, [I9491 2 All ER 274,281.
'6 [I9571 1 QB 438; 23 ILR,p. 160.
l7 [1957] 1 QB 438,461; 23 ILR, p. 169.

IMMUNITIES FROM TURISDICTION

627

There is some limitation to the absolute immunity rule to the extent
that a mere claim by a foreign sovereign to have an interest in the contested property would have to be substantiated before the English court
would grant immunity. Since this involves some submission by the foreign sovereign to the local jurisdiction, immunity is not unqualifiedly
absolute. Once the court is clear that the claim by the sovereign is not
merely illusory or founded on a manifestly defective title, it will dismissthe case. This was brought out in Juan Ysmuel v. Republic of ~ n d o n e s i a ~ ~in which the asserted interest in a vessel by the Indonesian government
was regarded as manifestly defective so thatthe case was not dismissed on
the ground of sovereign immunity.29
American cases, however, have shown a rather different approach, onethat distinguishes between ownership on the one hand and possession
and control on the other. In two cases particularly, immunity was refused
where the vessels concerned, although owned by the states claiming immunity, were held subject to the jurisdiction since at the relevant timethey were not in the possession or control of these states.30
Since the courts will not try a case in which a foreign state is the defendant, it is necessary to decide what a foreign state is in each instance.
Where doubts are raised as to the status of a foreign entity and whether
or not it is to be regarded as a state for the purposes of the municipal courts, the executive certificate issued by the UK government will bedecisive.
n is a good example
The case of DuffDeveloprnent Compuny v. ~ e l u n t u 31of this point. Kelantan was a Malay state under British protection. Bothits internal and external policies were subject to British direction and it
could in no way be described as politically independent. However, the UK
government had issued an executive certificate to the effect that Kelantan
was an independent state and that the Crown neither exercised nor claimed
any rights of sovereignty or jurisdiction over it. The House of Lords, to'' [1955]AC 72; 21 ILR, p. 95. See also USA and France v. Dol@s Mieget Compagnie [1952]
AC 582; 19 ILR, p. 163.
'' See Higgins, 'Unresolved Aspects: p. 273, who raises the question as to whether this test
would be rigorous in an era of restrictive immunity. See also R. Higgins, Problems andProcess, Oxford, 1994, chapter 5.
'O The Navernar 303 US 68 (1938); 9 AD, p. 176 and Rept~blicof Mexico v. Hoffrnian 324 US
30 (1945); 12 AD, p. 143.
31 [1924]AC 797; 2 AD, p. 124. By s. 21 ofthestate Immunity Act 1978, an executive certificate
is deemed to be conclusive as to, for example, statehood in this context. See also Trawnik
v. Gordon Lennox [I9851 2 All ER 368 as to the issue of a certificate under s. 21 on thestatus of the Commander of UK Forces in Berlin.

628

I N T E R N A T I O N A L LAW

whom the case had come, declared that once the Crown recognised aforeign ruler as sovereign, this bound the courts and no other evidence
was admissible or needed. Accordingly, Kelantan was entitled to sovereign
immunity from the jurisdiction of the English courts.
T h e restrictive upprouch
A number of states in fact started adopting the restrictive approach to
immunity, permitting the exercise of jurisdiction over non-sovereignacts, at a relatively early stage.32The Supreme Court of Austria in 1950,
in a comprehensive survey of practice, concluded that in the light of
the increased activity of states in the commercial field the classic doctrine of absolute immunity had lost its meaning and was no longer arule of international law.33In 1952, in the Tate letter, the United States
Department of State declared that the increasing involvement of governments in commercial activities coupled with the changing views offoreign states to absolute immunity rendered a change necessary andthat thereafter 'the Department [will] follow the restrictive theory ofsovereign imm~nity'.~"his approach was also adopted by the courts,
most particularly in Victory Transport Inc. v. Cornisaria General de Abasteciementos y ~ransportes.'~In this case, the Court, in the absence of aState Department 'suggestion' as to the immunity of the defendants,
a branch of the Spanish Ministry of Commerce, affirmed jurisdiction
since the chartering of a ship to transport wheat was not strictly a political or public act. The restrictive theory approach was endorsed by four
Supreme Court Justices in Alfred Dunhill of London Inc. v. Republic of" See e.g. Belgium andItaly, Lauterpacht, 'Problem'; Badr, Statelrnmunity, chapter 2; Sinclair,'Sovereign Immunity'; I. Brownlie, Principles ofpublic Iiiteriiational Law, 5th edn, Oxford,
1998, p. 329, and the Tate letter, 26 Department of State Bulletin, 984 (1952). See also theBrussels Convention on the Immunity of State-owned Ships, 1926, which assimilated theposition of such ships engaged in trade to that of private ships regarding submission to
the jurisdiction, and the 1958 Conventions on the Territorial Sea and on the High Seas.
See now articles 31,32,95 and 96 of the 1982 Convention on the Law of the Sea.
" Dralle v. Reptlblic o f Czechoslovakia 17 ILR, p. 155. This case was cited with approval by
the West German Supreme Constitutional Court in The Empire oflrari 445 ILR, p. 57 and by
the US Court of Appeals in Victory Transport Inc. v. Corriisaria General de Abasteciententos
y Traiisportes 35 ILR, p. 110.
3"6Department of State Bulletin, 984 (1952).
35 ILR, p. 110. See also e.g. National City Bank of New York v. Republic of China 22 ILR,
p. 210 and Rich r. Naviera Vacuba 32 ILR, p. 127.
'6 15 ILM, 1976, pp. 735,744,746-7; 66 ILR, pp. 212,221,224.

"

IMMUNITIES FROM TURISDICTION

629

As far as the UK was concerned, the adoption of the restrictive approachoccurred rather later.37
In the Philippine Admiral case,38the vessel, which was owned by thePhilippine government, had writs issued against it in Hong Kong by two
shipping corporations. The Privy Council, hearing the case on appeal
from the Supreme Court of Hong Kong, reviewed previous decisions
on sovereign immunity and concluded that it would not follow the Porto~ l e x a n d r e c a s eLord. ~ ~ Cross gave four reasons for not following the earlier
case. First, that the Court of Appeal wrongly felt that they were boundby the Purlement ~ e l ~ decision.
e ~ 'Secondly, that the House of Lords
in The ~ r i s t i i z ahad
~ ~ been divided on the issue of immunity for stateownedvessels engaged in commerce. Thirdly, that the trend of opinion wasagainst the absolute immunity doctrine; and fourthly that it was 'wrong'
to apply the doctrine since states could in the Western world be sued intheir own courts on commercial contracts and there was no reason why
foreign states should not be equally liable to be sued.42Thus, the Privy
Council held that in cases where a state-owned merchant ship involvedin ordinary trade was the object of a writ, it would not be entitled tosovereign immunity and the litigation would proceed.
In the case of Thai-Europe Tapioca Service Ltd v. Government of~ a k i s t a na, ~German-owned~
ship on charter to carry goods from Poland
to Pakistan had been bombed in Karachi by Indian planes during the 1971
war. Since the agreement provided for disputes to be settled by arbitration in England, the matter came eventually before the English courts.
The cargo had previously been consigned to a Pakistani corporation, andthat corporation had been taken over by the Pakistani government. The
shipowners sued the government for the sixty-seven-day delay in unloading that had resulted from the bombing. The government pleaded
sovereign immunity and sought to have the action dismissed.
The Court of Appeal decided that since all the relevant events had takenplace outside the jurisdiction and in view of the action being iiz personain" See, for some early reconsiderations, Lord Denning in Rallimtoola v. Nizatn ofHyderabad[I9581 AC 379,422; 24 ILR, pp. 175, 190.
" [I9761 2 WLR 214; 64 ILR, 13.90. Sinclair describes this as a 'historic landmark: 'Sovereign

Immunity', p. 154. See also R. Higgins, 'Recent Developments in the Law of Sovereign
Immunity in the United Kingdom: 71 AJIL, 1977, pp. 423,424.
[1920] P. 30; 1 AD, p. 146.
(1880) 5 PD 197.
'19381 AC 485; 9 AD, p. 250.
42 [I9761 2 WLR214,232; 64 ILR, pp. 90,108. Note that Lord Cross believed that the absolutetheory still obtained with regard to actions in personam, [I9761 2 WLR 214,233.
4' [1975] 1 WLR 1485; 64 ILR, p. 81.

''
"

630

I N T E R N A T I O N A L LAW

against the foreign government rather than against the ship itself, thegeneral principle of sovereign immunity would have to stand.
Lord Denning declared in this case that there were certain exceptions
to the doctrine of sovereign immunity. It did not apply where the action
concerned land situated in the UK or trust funds lodged in the UK or debts
incurred in the jurisdiction for services rendered to property in the UK,
nor was there any immunity when a commercial transaction was enteredinto with a trader in the UK 'and a dispute arises which is properly within
the territorial jurisdiction of ourThis unfortunate split approach, absolute immunity for actions inpers o ~ ~ aandi ~ z restrictive immunity for actions i n rein did not, however, lastlong. In Trendtex Trading Corporation Ltd v. Central Bank of Nigeria,45 all
three judges of the Court of Appeal accepted the validity of the restrictive approach as being consonant with justice, comity and international
practice.46The problem of precedent was resolved for two of the judges
by declaring that international law knew no doctrine of stare deci~is.~'The clear acceptance of the restrictive theory of immunity in Trendtex
was reaffirmed in later cases,48particularly by the House of Lords in the
I " Congreso del Partido case4' and in Alcom Ltd v. Republic of Colombia.50
The majority of states now have tended to accept the restrictive immunity doctrine5' and this has been reflected in domestic l e g i ~ l a t i o n . ~ ~In particular, the US Foreign Sovereign Immunities Act 1976,j3 provides
in section 1605 for the grounds upon which a state may be subject to" [I9771 2 WLR 356; 64 ILR, p. 122.
" 619771 2 WLR 356,366-7 (Denning MR), 380 (Stephenson LJ) and 385-6 (Shaw LJ).
" [I9751 1 WLR 1485, 1490-1; 64 ILR, p. 84.

Ibid., p p 365-6 and 380. But cf. Stephenson LJ, ibid., p. 381. See further above, chapter 4,
p. 133.
48 See e.g. Hispano Anlericana Mercantil SA v. Central Bank of Nigeria [I9791 2 LL. R 277;
64 ILR, p. 221.
49 [1981] 2 All ER 1064; 64 ILR, p. 307, a case concerned with the pre-1978 Act common
law. See also Plantnount Ltd v. Republic ofZaire [I9811 1 All ER 1110; 64 ILR, p. 268.
" [ 19841 2 411 ER 6; 74 ILR, p. 179.
See e.g. the Adttzinistratiotz des Chettzins de Fer du Gouvernettzent Iranietz case, 52 ILR,
p. 315 and the Einpire of Iran case, 45 ILR, 17. 57; see also Sinclair, 'Sovereign Immunity';
Badr, State Iurnnunity; and U N , Materials. Note also Abbott v. Republic of South Africa
before the Spanish Constitutional Court, 86 ILR, p. 512; Marlauta v. Einbassy ofRussianFederation 113 ILR, p. 429 (Argentinian Supreme Court); U S A v. Friedland 182 DLR (4th)614; 120 ILR, p. 417 and CGMhldustrial v. KPMG 1998 (3) SA 738; 121 ILR, p. 472.
" See e.g. the Singapore State Immunity Act 1979; the Pakistan State Immunity Ordinance
1981; the South African Foreign States Immunities Act 1981; the Canadian State Immunityai~States Immunities Act 1985.
Act 1982 and the A ~ ~ s t r a l iForeign
j3 See e.g. G. Delauine, 'Public Debt and Sovereign Immunity: The Foreign Sovereign Iminunities Act of 1976: 71 ATIL, 1977, p. 399; Sinclair, 'Sovereign Imin~ulity:pp. 243 ff., and47"

IMMUNITIES FROM TURISDICTION

63l

the jurisdiction (as general exceptions to the jurisdictional immunity of aforeign state), while the UK State Immunity Act 1978j4similarly provides
for a general rule of immunity from the jurisdiction of the courts with arange of exceptions t h e r e t ~ . ' ~The former Soviet Union and some other countries generally adhered
to the absolute immunity theory, although in practice entered into manybilateral agreements permitting the exercise of jurisdiction in cases wherea commercial contract had been signed on the territory of the other stateparty.5h
Sovereign and non-sovereign acts
With the acceptance of the restrictive theory, it becomes crucial to analyse
the distinction between those acts that will benefit from immunity andthose that will not. In the Victory Transport case,5' the Court declaredthat it would (in the absence of a State Department suggestion)58refuse
to grant immunity, unless the activity in question fell within one of theD. Weber, 'The Foreign Sovereign Immunities Act of 1976: 3 Yale Studies in lVorld Pllblic
Order, 1976, p. 1.
7
j4 See e.g. D. \I . Bowett, 'The State Immunity Act 1978: 37 Canlbridge LUIV
Journal, 1978,
p. 193; R. C. A. White, 'The State Immunity Act 1978; 42 MLR, 1979, p. 72; Sinclair,'Sovereign Immunity', pp. 257 ff., and M. N. Shaw, 'The State Immunity Act 1978: New
Law Joz~rilal,23 November 1978, p. 1136.
j5 See also the 1972 European Convention on State Immunity. The Additional Protocol to
the European Convention, which establishes a European Tribunal in matters of State Immunity to determine disputes under the Convention, came into force on 22 May 1985, tobe composed initially of the same members as the European Court of Human Rights: see
Council of Europe Press Release, C(85)39. See generally UN, LMaterials, Part I 'National
Legislation', and Badr, State Imrnunlty, chapter 3. See also the Inter-American Draft Convention on Jurisdictional Immunity of States, 22 ILM, 1983, p. 292. Note that the large
number of cases precipitated by the 1979 Iran Hostages Crisis and the US freezing of assets
were argued on the basis of the restrictive theory, before being terminated: see e.g. R.
Edwards, 'Extraterritorial Application of the US Iranian Assets Control Regulations: 75
AJIL, 1981, p. 870. See also Darnes and Moore v. Regan 101 S. Ct. 1972 (1981); 72 ILR, p.
270.
j6 See, for a number of examples, UN, Materials, pp. 134-50. See also M. M. Boguslavsky,'Foreign State Immunity: Soviet Doctrine and Practice', 10 Netherlands YIL, 1979, p. 167.
See, as to Philippines practice, USA v. RuizarlilDe Guzrrlan 102 ILR, 17.122; USA v. Guinto,
Valencia and Others, ibid., p. 132 and The Holy See v. Starbright Sales Enterprises, ibid.,
p. 163.
" 336 F.2d 354 (1964); 35 ILR, p. 110. See also P. Lalive, 'L'Immunite de Juridiction des Etats
et des Organisations Internationales: 84 HR, 1953, p. 205 and Lauterpacht, 'Problem:
pp. 237-9.
j8 Note that since the 1976 Foreign Sovereign Immunities Act, the determination of suchstatus is a judicial, not executive, act.

632

I N T E R N A T I O N A L LAW

categories of strictly political or public acts: viz. internal administrative
acts, legislative acts, acts concerning the armed forces or diplomatic activity and public loans.
has been to proclaim
However, the basic approach ofrecent legi~lation"~a rule of immunity and then list the exceptions, so that the onus of proof
falls on the other side of the line.60 This approach is mirrored in the
Draft Articles on Jurisdictional Immunities of States and Their Property
adopted by the International Law Commission in 1991." Article 5 notesthat:
A state enjoys immunity in respect of itself and its property, from thejurisdiction of the courts of another state subject to the provisions of thepresent articles.

In such circumstances, the way in which the 'state' is defined forsovereign immunity purposes becomes important. Article 2 ( l ) b of the
ILC Draft, as well as referring to the uncontentious elements,62includes
political subdivisions of the state acting in the exercise of sovereign authority, and agencies and instrumentalities ofthe state and other entities tothe extent that they are entitled to perform acts in the exercise of sovereignauthority. It may be that some refining will be required before an international treaty emerges. In particular, the apparent presumption of immunity for such entities may prove troublesome. What needs to be bornein mind is that the key in such circumstances is whether or not such anentity, however termed, exercises as a matter of fact elements of sovereignauthority.63
See e.g. s. 1 ofthe State Immunity Act 1978; s. 1604 ofthe US Foreign Sovereign Immunities
Act 1976 and s. 9 of the Australian Foreign States Immunities Act 1985. See also Saudi
Arabia v. Nelsotz 123 L Ed 2d 47 (1993); 100 ILR, p. 544.
60 See also article 15 of the European Convention on State Immunity, 1972. Article I1 of the
Revised Draft Articles for a Convention on State Immunity adopted by the International
Law Association in 1994, Report of the Sixty-sixth Cotlference, 1994, p. 22, provides that: 'In
principle, a foreign state shall be immune from the ad~udicatoryjurisdiction of a forum
state for acts performed by it in the exercise of its sovereign authority, i.e. jure imnperii. It
shall not be immune in the circumstances provided in article 111.'
61 See Report of the International Law Commission, 1991, 17. 37. There is extensive statepractice on whether immunity should be seen as a derogation from territorial sovereignty
and thus to be justified in each particular case, or as a rule of international law as such,thus not requiring substantiation in each and every case: see Yearbook of tlze ILC, 1980,
vol. 11, part 2, pp. 142 ff.
62 1.e. 'the state and its various organs of government' and (perhaps to a lesser extent) the'constituent units of a federal state:
6' See also e.g. AiC.6148iL.4, 1993.
'9

IMMUNITIES FROM TURISDICTION

633

With the adoption of the restrictive theory of immunity, the appropriate test becomes whether the activity in question is of itself sovereign ( jureimperii) or non-sovereign ( j u r e gestionis). In determining this, the predominant approach has been to focus upon the nature of the transaction
rather than its purpose.64
However, it should be noted that article 2(2) of the ILC Draft provides
that:
In determining whether a contract or transaction is a 'con~n~ercial
transaction'. . . reference should be made primarily to the nature of the contract
or transaction, but its purpose should also be taken into account if, in thepractice of the state which is a party to it, that purpose is relevant t o determining the n o n - c o n ~ n ~ e r c icharacteralof the contract or transaction."'The reason for the modified 'nature' test was in order to provide an adequate safeguard and protection for developing countries, particularly as
they attempt to promote national economic development. The ILC Commentary to this draft article notes that a two-stage approach is posited,
to be applied successively. First, reference should be made primarily tothe nature of the contract or transaction and, if it is established that it
is non-commercial or governmental in nature, no further enquiry would
be needed. If, however, the contract or transaction appeared to be commercial, then reference to its purpose should be made in order to determine whether the contract or transaction was truly sovereign or not.
States should be given an opportunity to maintain that in their practice aparticular contract or transaction should be treated as non-commercial
since its purpose is clearlypublic and supported by reasons of state. Examples given include the procurement of medicaments to fight a spreading
epidemic, and food supplies.66This approach, a modification of earlier" See e.g. s. 1603(d) of the US Foreign Sovereign Immunities Act of 1976. The section-by-

section analysis of the Act emphasises that 'the fact that goods or services to be procured
through a contract are to be used for a public purpose is irrelevant; it is the initially commercial nature of an activity or transaction that is critical: reproduced in UN, Materials,
pp. 103, 107. See also the Empire of Iran case, 45 ILR, pp. 57, 80-1; Trendtex Trading Corporation Ltd v. Central Bartk o f Nigeria [I9771 2 WLR 356; 64 ILR, p. 122; Non-resident
Petitioner v. Central Bank of Nigeria 16 ILM, 1977, p. 501 (a German case); Plallrnot~lzt
Ltd v. Republic of Zaire [I9811 1 All ER 1110; 64 ILR, p. 268 and Saudi Arabia v. Nelson
123 L Ed 2d 47 (1993); 100 ILR, p. 544 (US Supreme Court). See also article I of the
Revised Draft Articles for a Convention on State Immunity adopted by the International
Law Association in 1994, Report of the Sixty-sixth Conference, 1994, p. 23.
65 See Report of the International Law Commission, 1991, p. 13.
66 Ibid., pp. 29-30,

634

I N T E R N A T I O N A L LAW

drafts,G7is not uncontroversial and some care is required. It would, forexample, be unhelpful if the purpose criterion were to be adopted in amanner which would permit it to be used to effect a considerable retreat
from the restrictive immunity approach. This is not to say, however, thatno consideration whatsoever of the purpose of the transaction in question
should be undertaken.
Lord Wilberforce in I" Congreso del ~ a r t i d emphasisedo~~that in considering whether immunity should be recognised one had to consider
the whole context in which the claim is made in order to identify the'relevant act' which formed the basis of that claim. In particular, wasit an act jure gestionis, or in other words 'an act of a private law character such as a private citizen might have entered into'?" This use of
the private lawlpublic law dichotomy, familiar to civil law systems, wasparticularly noticeable, although different states draw the distinction at
different points.70It should also be noted, however, that this distinctionis less familiar to common law systems. In addition, the issues ascribed to
the governmental sphere as distinct from the private area rest upon theparticular political concept proclaimed by the state in question, so thata clear and comprehensive international consensus regarding the line of
distinction is ~ n l i k e l y . The~ ' characterisation of an act as jure gestioizis orjure imperii will also depend upon the perception of the issue at hand by
the courts. Lord Wilberforce also noted that while the existence of a governmental purpose or motive could not convert what would otherwise be
an act jure gestionis or an act of private law into one done jure i m ~ e r i i , ~ ~purpose may be relevant if throwing some light upon the nature of what
was done.73
The importance of the contextual approach at least as the starting
point of the investigation was also emphasised by the Canadian Supreme
Court in United States ofAnzerica v. T h e Public Service Alliance of Canada
and Others ( R e Canada Labour C ~ d e ) . 'It~ was noted that the contextual
approach was the only reasonable basis for applying the restrictive immunity doctrine for the alternative was to attempt the impossible, 'an'' Yearbook of the ILC, 1983, vol. 11, part 2.

[I9831 AC 244,267; 64 ILR, pp. 307,318.
[1983] AC 244,262; 64 ILR, p. 314.
O'
See e.g. Sinclair, 'Sovereign Immunity: pp. 210-13, and the Ernpire of Iran case, 45 ILR,
pp. 57, 80. See also article 7 of the European Convention on State Imn~unity,1972.
See e.g. Crawford, 'International Law', p. 88; Lauterpacht, 'Problem', pp. 220, 224-6, andBrownlie, Principles, pp. 335-9.
" [I9831 AC 244,267; 64 ILR, p. 318.
73 [I9831 AC 244, 272; 64 ILR, p. 323.
74 (1992) 91 DLR (4th) 449; 94 ILR, p. 264.
6y

635

IMMUNITIES FROM TURISDICTION

antiseptic distillation of a "once-and-for-all" characterisation of the activity in question, entirely divorced from its p~rpose'.~'The issue wasalso considered by the Supreme Court of Victoria, Australia, in Reid v.
Republic of ~ a u r uwhich, ~ ~ stated that in some situations the separationof act, motive and purpose might not be possible. The motive or purpose
underlying particular conduct may constitute part of the definition of theact itself in some cases, while in others the nature or quality of the act
performed might not be ascertainable without reference to the context
within which it is carried out. The Court also made the point that a relevant factor was the perception held or policy adopted in each particularcountry as to the attributes of sovereignty itself.77The point that 'unless
we can inquire into the purpose of such acts, we cannot determine theirnature' was also made by the US Court of Appeals in De Sanchez v. Banco
Central de Nicaragua and ~ t h e r s . ' ~The particular issue raised in the Congreso case was whether immunity
could be granted where, while the initial transaction was clearly commercial, the cause of the breach of the contract in question appeared to be
an exercise of sovereign authority. In that case, two vessels operated by a
Cuban state-owned shipping enterprise and delivering sugar to a Chilean
company were ordered by the Cuban government to stay away from Chile
after the Allende regime had been overthrown. The Cuban government
pleaded sovereign immunity on the grounds that the breach of the contract was occasioned as a result of a foreign policy decision. The Houseof Lords did not accept this and argued that once a state had entered the
trading field, it would require a high standard of proof of a sovereign
act for immunity to be introduced. Lord Wilberforce emphasisedthat:in order to withdraw its action from the sphere of acts done jure gestionis,a state must be able to point to some act clearly done jure imperii''

and that the appropriate test was to be expressed as follows:
it is not just that the purpose or motive of the act is to serve the purposesof the state, but that the act is of its own character a governmental act, as
opposed to an act which any private citizen can perform."[I9921 91 DLR (4th) 463; 94 ILR, p. 278.
T 6 [I9931 1 LrR 251; 101 ILR, p. 193.
[I9931 1 L7R 253; 101 ILR, pp. 195-6.
78 770 F.2d 1385, 1393 (1985); 88 ILR, pp. 75,85.
7' [I9811 2 All ER 1064, 1075; 64 ILR, p. 320.
80 Ibtd., quoting the judge at first instance, [I9781 1 All ER 1169, 1192; 64 ILR, p. 179.
75

77

636

I N T E R N A T I O N A L LAW

In the circumstances of the case, that test had not been satisfied. One of
the two ships, the Playa Larga, had been owned at all relevant times by the
Cuban government, but the second ship, the Marble Islands, was owned
by a trading enterprise not entitled to immunity. When this ship was on
the high seas, it was taken over by the Cuban government and ordered toproceed to North Vietnam, where its cargo was eventually donated to thepeople of that country. The Court was unanimous in rejecting the plea of
immunity with regard to the Playa Largu, but was split over the secondship.
Two members of the House of Lords, Lord Wilberforce and Lord
Edmund-Davies, felt that the key element with regard to the Marble
Islands, as distinct from the Playa Larga, where the government had acted
as owner of the ship and not as governmental authority, was that theRepublic of Cuba directed the disposal of the cargo in North Vietnam.
This was not part of any commercial arrangement which was conductedby the demise charterer, who was thus responsible for the civil wrongs
committed. The acts of the government
were outside this framework andaccordingly purely governmental.81
However, the majority held that the Cuban government had acted in
the context of a private owner in discharging and disposing of the cargo
in North Vietnam and had not regarded itself as acting in the exercise
of sovereign powers. Everything had been done in purported reliance
upon private law rights in that the demise charterers had sold the cargo
to another Cuban state enterprise by ordinary private law sale and in
purported reliance upon the bill of lading which permitted the sale inparticular instances. It was the purchaser that donated the cargo to theVietnamese people.82
In manyrespects, nevertheless, the minorityview is the more acceptableone, in that in reality it was the Cuban government's taking control ofthe ship and direction of it and its cargo that determined the issue andthis was done as a deliberate matter of state policy. The fact that it was
accomplished by the private law route rather than, for example, by directgovernmental decree should not settle the issue conclusively. In fact, one
thing that the case does show is how difficult it is in reality to distinguishpublic from private acts.83[ l 9 8 l ] 2 All ER 1064, 1077 and 1081; 64 ILR, pp. 321,327.
" [I9811 2 All ER 1079-80, 1082 and 1083; 64 ILR, pp. 325,328,329.
" Note that if the State Iinillunity Act 1978 had been in force when the cause of action

arose in this case, it is likely that the claim of immunity would have completely failed: sees. 10.

IMMUNITIES FROM TURISDICTION

637

In Littrell v. United States of America (No. 2),84Hoffman LJ in the
Court of Appeal emphasised that it would be facile in the case, which
concerned medical treatment for a US serviceman on an American basein the UK, to regard the general military context as such as determinative.
One needed to examine carefully all the relevant circumstances in order todecide whether a sovereign or a non-sovereign activity had been involved.
Important factors to be considered included where the activity actually
took place, whom it involved and what kind of act itselfwas inv~lved.~'In
Holland v. Lumpen- Wolfe,the House of Lords dealt with a case concerning
the activities of a US citizen and civilian teaching at a US military basein the UK who argued that a memorandum written by the defendant
was l i b e l l ~ u sRelying. ~ ~ upon Hoffman LJ's approach, the House of Lords
emphasised that the context in which the act concerned took place was
the provision of education within a military base, an activity designed 'as
part of the process of maintaining forces and associated civilians on thebase by US personnel to serve the needs of the US military a u t h o r i t i e ~ ' . ~ ~Accordingly, the defendant was entitled to immunity.
The problem of sovereign immunity with regard to foreign bases was
also addressed by the Canadian Supreme Court in United States ofAmerica
v. The Public Service Alliance of Canada (Re Canada Labour Code).88The
Court emphasised that employment at the base was a multifaceted activity and could neither be labelled as such as sovereign or commercial innature. One had to determine which aspects of the activity were relevantto the proceedings at hand and then to assess the impact of the proceedings on these attributes as a whole." The closer the activity in question
was to undisputable sovereign acts, such as managing and operating an
offshore military base, the more likely it would be that immunity would
be recognised. In KuwaitAirways Corporation v. Iraqi Airways CO.,~'Lord[I9951 1 WLR 82, 95; 100 ILR, p. 438. Note that the case, as it concerned foreign armed
forces in the UK, fell outside the State Immunity Act 1978 and was dealt with undercommon law.
$"ee also Hicks v. USA 120 ILR, p. 606, where the Employment Appeal Tribunal held thatthe primary purpose of recreation facilities at an airbase was to increase the effectivenessof the central military activity of that base which was clearly a sovereign activity.
86 Similarly a US citizen and civilian.
[2000] 1 WLR 1573, 1577 (per Lord Hope, who stated that 'the context is all important',
ibid.).
(1992) 91 DLR (4th) 449; 94 ILR, p. 264.
$'
[I9921 91 DLR (4th) 466; 94 ILR, p. 281.
[I9951 1 MTLR 1147, 1160; 103 ILR, p. 340. For later proceedings in this case, see 116 ILR,
p. 534 (High Court); [2000] 2 All ER (Comm.) 360; [2001]2 WLR 1117 (Court of Appeal)and [2002] UKHL 19 (House of Lords).
84

"

638

I N T E R N A T I O N A L LAW

Goff, giving the leading judgment in the House of Lords, adopted Lord
Wilberforce's statement of principle in Congreso and held that 'the ultimate test of what constitutes an act juve imperii is whether the act inquestion is of its own character a governmental act, as opposed to an act
which any private citizen can p e r f ~ r m ' . ~Further,'
the Court held that thefact that an initial act was an act jure imperii did not determine as suchthe characterisation of subsequent acts.92

State immunity and violations of human rights 93
With the increasing attention devoted to the relationship between international human rights law and domestic systems, the question has arisen
as to whether the application of sovereign immunity in civil suits against
foreign states for violations of human rights law has been affected. To datestate practice suggests that the answer to this is negative. In Saudi Arabia
v. Nelson, the US Supreme Court noted that the only basis for jurisdiction
over a foreign state was the Foreign Sovereign Immunities Act 1976 and,
unless a matter fell within one of the exceptions, the plea of immunity
would s ~ c c e e d . 'It~ was held that although the alleged wrongful arrest,
imprisonment and torture by the Saudi government of Nelson would
amount to abuse of the power of its police by that government, 'a foreignstate's exercise of the power of its police has long been understood forthe purposes of the restrictive theory as peculiarly sovereign'.95However,the US Foreign Sovereign Immunities Act was amended in 1996 by the
Antiterrorism and Effective Death Penalty Act which created an exception
to immunity with regard to states, designated by the Department of Stateas terrorist states, which committed a terrorist act, or provided material
Note that in Sengupta v. l(epub1ic of India 65 ILK, pp. 325, 360, it was emphasised thatin deciding whether immunity applied, one had to consider whether it was the kind ofcontract an individual might make, whether it involved the participation of both parties
in the public functions of the state, the nature of the alleged breach and whether theinvestigation of the claim would involve an investigation into the public or sovereign actsof the foreign state.
92 [I9951 1 \VLR 1147, 1162-3. See further below, p. 652.
9' See e.g. Brohmer, State Immunity; S. Marks, 'Torture and the Jurisdictional Immunity ofForeign States', 1997 CLJ, p. 8, and R. Van Alebeek, 'The Pinochet Case', 71 BYIL,2000,
pp. 49 ff.
94 123 L Ed 2d 47,61 (1993); 100 ILR, pp. 544,553.
123 L Ed 2d 47, 57. See also e.g. Controller and Auditor General v. Sir Ronald Davidson 119961 2 NZLR 278 and Priilcz v. Federal Republic of Germany 26 F.3d 1166 (DCCir. 1994).
91"

IMMUNITIES FROM TURISDICTION

639

support and resources to an individual or entity which committed suchan act which resulted in the death or personal injury of a US citizen.96
In Bouzari v. Iran, the Superior Court of Justice of Ontario, Canada,
noted, in the light of the Canadian State Immunity Act 1982, that 'regardless of the state's ultimate purpose, exercises of police, law enforcement
and security powers are inherently exercises of governmental authority
and sovereignty'y7and concluded that an international custom existed tothe effect that there was an ongoing rule providing state immunity foracts of torture committed outside the forum state.98The English Courtof Appeal in Al-Adsani v. Government of ~ u w u i heldt ~ ~that the State
Immunity Act provided for immunity for states apart from specific listed
express exceptions, and there was no room for implied exceptions to thegeneral rule even where the violation of a norm of jus cogens (such as
the prohibition of torture) was involved. The Court rejected an argumentthat the term 'immunity' in domestic legislation meant immunity fromsovereign acts that were in accordance with international law, thus excluding torture for which immunity could not be claimed. In Holland v.
Lampen- Wove, the House of Lords held that recognition of sovereign immunity did not involve a violation of the rights of due process containedin article 6 of the European Convention on Human Rights since it wasargued that immunity derives from customary international law while theobligations under article 6 derived from a treaty freely entered into by the
UI<. Accordingly, 'The United Kingdom cannot, by its own act of acceding
to the Convention and without the consent of the United States, obtaina power of adjudication over the United States which international law
denies it."'' The European Court of Human Rights in Al-Adsani v. UK
analysed this issue, that is whether state immunity could exist with regard
96 This provision is retroactive. See Flatow v. IslamicXepublic oflrarl 999 F.Supp. 1 (1998);

121 ILR, p. 618 and Alejandre r. Republic of Cuba 996 F.Suyy. 1239 (1997); 121 ILR,
p. 603.
" 124 ILR, pp. 427,435.
98 Ibid., p. 443. The Court dismissed arguments that either the Convention against Tortureor the International Covenant on Civil and Political Rights imposed an obligation onstates to create a civil remedy ~vithregard to acts of torture committed abroad, or thatsuch an obligation existed as a rule of jus cogens: see at pp. 441 and 443.
99 (1996) 1 LL. R 104; 107 ILR, p. 536. But see Evans LJ in Al-Adsuni v. Goveri~me~ztofKuwait
100 ILR, p. 465, which concerned leave to serve proceedings upon the Governiment ofKu~raitand in which it had been held that there was a good arguable case that, under
the State Immunity Act, there was no immunity for a state in respect of alleged acts of
torture.
loo [2000] 1 WLR 1573, 1588 (per Lord Millett).

640

I N T E R N A T I O N A L LAW

to civil proceedings for torture in the light of article 6 of the European
onv vent ion.'^' The Court noted cautiously that it could not discern in
the relevant materials before it, 'any firm basis for concluding that, as amatter of international law, a state no longer enjoys immunity from civil
suit in the courts of another state where acts of torture are alleged"02 andheld that immunity thus still applied in such cases.""In the case of criminal proceedings, the situation is rather different.
Part I of the State Immunity Act (the substantive part) does not apply tocriminal proceedings, although Part I11 (concerning certain status issues)does. In Exparte Pinochet ( N o . 3),'04 the House of Lords held by six votes
to one that General Pinochet was not entitled to immunity in extradition
proceedings (which are criminal proceedings) with regard to charges of
torture and conspiracy to torture where the alleged acts took place after
the relevant states (Chile, Spain and the UK) had become parties to theConvention against Torture, although the decision focused on head ofstate immunity and the terms of the Convention.lo5
Commercial acts

Of all state activities for which immunity is no longer to be obtained, thatof commercial transactions is the primary example and the definition ofsuch activity is crucial.lo6
Section 3(3) of the State Immunity Act 1978 defines the term 'commercial transaction' to mean:(a) any contract for the supply of goods or services;(b) any loan or other transaction for the provision of finance and any
guarantee or indemnity in respect of any such transaction or of any
other financial obligation; andrudgment of 21 November 2001.
l o 2 Il~id.,para. 61.
lo' [2000] 1 AC 147; 119 ILR, p. 135.
lo5 See further below, p, 655. Note, however, that Lords Hope, Millett and Phillips held that
there was no immunity for widespread and systematic acts of official torture, [2000] 1
AC 147,246-8,275-7,288-92.
lo6 I11 his discussion of the development of the restrictive theory of sovereign or state immunity in Alcorn v. Republic of Colornbia [1984] 2 All ER 6, 9; 74 ILR, pp. 180, 181,
Lord Diplock noted that the critical distinction was between what a state did in the exercise of its sovereign authority and what it did in the course of commercial activities.
The former enjoyed immunity, the latter did not. See also Schreuer, State Inirnunity,
chapter 2.
lo'lo-' Ibid., para. 66.

IMMUNITIES FROM TURISDICTION

641(c) any other transaction or activity (whether of a commercial, industrial,
financial, professional or other similar character) into which a state
enters or in which it engages otherwise than in the exercise of sovereignauthority.

Thus a wide range of transactions are coveredlo' and, as Lord Diplockpointed out,lo8 the 1978 Act does not adopt the straightforward dichotomy between acts jure imperii and those jure gestionis. Any contract
falling within section 3 would be subject to the exercise ofjurisdiction andthe distinction between sovereign and non-sovereign acts in this context
would not be relevant, except in so far as transactions falling within section 3(3)c were concerned, in the light of the use of the term 'sovereignauthority'. The Act contains no reference to the publiclprivate question,
but the Congreso case (dealing with the pre-Act law) would seem to permit examples from foreign jurisdictions to be drawn upon in order todetermine the nature of 'the exercise of sovereign authority'.
Section 3(1) of the State Immunity Act provides that a state is not
immune as respects proceedings relating to:(a) a coininercial transaction entered into by the state; or(b) an obligation of the state ~ . h i c hby virtue of a contract (whether acomlnercial transaction or not) falls to be performed wholly or partly
in the United K i ~ ~ g d o i n . ' ~ ~The scope of section 3 ( l ) a was discussed by the Court in Australia
and New Zealand Banking Group v. Commonwealth of ~ u s t r a l i a . ~This'~case arose out of the collapse of the International Tin Council in 1985.
The ensuing litigation sought, by various routes, to ascertain whether themember states of the ITC (which was itself an international organisation
with separate personality) could be held liable themselves for the debts ofthat organisation - a prospect vigorously opposed by the states concerned.
The case in question concerned an attempt by the brokers and banks tohold the member states of the ITC liable in tort for losses caused bymisrepresentation and fraudulent trading.
Thus, for example, the defence of sovereign immunity was not available in an action
relating to a contract for the repair of an ambassador's residence, Planmount Ltd v.
Republic of Zaire [1981] 1 All ER 1110; 64 ILR, p. 268.
lo' Alcom v. Republic of Colombia [I9841 2 All ER 6, 10; 74 ILR, p. 183.
""ate that by 5. 3(3), 6 . 3(1) does not apply to a contract of employment between a state
and an individual.
'lo 1989, transcript, pp. 52 ff.
lo'

642

I N T E R N A T I O N A L LAW

It was argued by the defendants that as far as section 3(1) was concerned, the activity in question had to be not only commercial within
the Act's definition but also undertaken 'otherwise than in the exercise
of sovereign authority'. Evans J saw little difference in practice between
the two terms in the context."' The defendants also argued that the term
'activity' meant something more than a single act or sequence of acts.
Evans J did not accept this, but did emphasise that the activity in question
had to be examined in context. It was held that both the trading and loan
contracts under discussion in the case were commercial and that, if it
could be demonstrated that the member states of the ITC had authorised
them, such authorisation would amount to commercial activity within
the meaning of section 3."2The scope of section 3 ( l ) b was discussed by the Court of Appeal in
Maclaine Watson v. Departmentof Tradeand~ndustry,'~~which concerned
the direct action by the brokers and banks against the member states ofthe
ITC in respect of liability for the debts of the organisation on a contractual
basis. It was held that the 'contract' referred to need not have been enteredinto by the state as such. That particular phrase was absent from section
3(l)b. Accordingly, the member states would not have been able to benefit
from immunity in the kind of secondary liability of a guarantee naturethat the plaintiffs were inter alia basing their case upon.l14 This view
was adopted in the tort action against the member states115in the moredifficult context where the obligation in question was a tortious obligationon the part of the member states, that is the authorisation or procuring ofa misrepresentation inducing the creditors concerned to make a contract
with another party (the I T C ) . l~6Section 1603(d) of the US Foreign Sovereign Immunities Act 1976
defines 'commercial activity' as 'a regular course of commercial conduct
or a particular commercial transaction or act'. It is also noted that thecommercial character of an activity is to be determined by reference tothe nature of the activity rather than its purpose. The courts have heldthat the purchases of food were commercial activities'" as were purchases
Ibid., pp. 56-7.
[I9881 3 WLR 1033; 80 ILR, p. 49.
11"19881 3 WLR 1104-5 (Kerr LJ) and 1130 (Nourse LJ); 80 ILR, pp. 119, 148.
'I5 Australia arld A~ewZealartdBar~kirigGronp
v. Corilrrlonwealth ofAustralia, 1989, transcript,
pp. 57-9.
It should be noted that Evans J reached his decision on this point only with considerable
hesitation and reluctance, ibid., p. 59.
' I 7 See e.g. Gemini Shipping v. Foreign Trade Organisation for Chemicals and Food.ctufis 63
i c Bolivia 63 ILR, p. 56.
ILR, p. 569 and ADA4 Milling Co. v. R e p ~ ~ b lof"I

11'

Ibid., p. 54.

IMMUNITIES FROM TURISDICTION

643

of ~ e m e n t , "the~ sending by a government ministry of artists to performin the US under a US impresario119and activities by state airlines.120
The issuance of foreign governmental Treasury notes has also been held
to constitute a commercial activity, but one which once validly statutebarred by passage of time cannot be revived or a1tered.l2'
In Callejo v. an comer,'^^ a case in which a Mexican bank refused toredeem a certificate of deposit, the District Court dismissed the action on
the ground that the bank was an instrumentality of the Mexican government and thus benefited from sovereign immunity, although the Courtof Appeals decided the issue on the basis that the act of state doctrine
applied since an investigation of a sovereign act performed wholly within
the foreign government's territory would otherwise be required. In othercases, US courts have dealt with the actions of Mexican banks consequent
upon Mexican exchange control regulations on the basis of sovereign
immunity.'23 However, the Supreme Court in Republic of Argentina v.
weltover ~nc.'~%eldthat the act of issuing government bonds was a commercial activity and the unilateral rescheduling ofpayment of these bonds
also constituted a commercial activity. The Court, noting that the term'commercial' was largely undefined in the legislation, took the view thatits definition related to the meaning it had under the restrictive theory
NAC v. Federal Republic ofNigeria 63 ILR, p. 137.
USSR 63 ILR, p. 228.
gentine Airlines u. Ross 63 ILR, p. 195.
Schmidt 1,. Polish People's Republic 742 F.2d 67 (1984). See also Ji~ckson v. People's
Republic of China 596 F.Supp. 386 (1984);Afnoco Overseas Oil Co. u. Corripagnie Nationnle Algerienne 605 F.2d 648 (1979);63 ILR, p. 252 and Corporncion ITenezolana deFornenta v. Virltero Sales 629 F.2d 786 (1980);63 ILR, p. 477.
764 F.2d 1101 (1985).See also Chiskolw~v. BankofJu~naica643F.Supp. 1393 (1986);121
ILR, p. 487. Note that in Dole Food Co, v. Patrickson, the US Supreme Court in its decisionof 22 April 2003, held that in order to constitute an instrumentality under the Foreign
Sovereign Immunities Act, the foreign state concerned must itself own a majority of acorporation's shares. Indirect subsidiaries would not benefit from immunity since suchcompanies cannot come within the statutory language granting instrumentality status toan entity a 'majority of whose shares or other ownership interest is owned by a foreignstate or political subdivision thereof', see section 1 6 0 3 ( b ) ( 2 ) .Only direct ownershipwould satisfy the statutory requirement. The statutory reference to ownership of 'shares'
showed that Congress intended coverage to turn on formal corporate ownership and acorporation and its shareholders were distinct entities. Further, instrumentality status
was to be determined as at the time of the filing of the complaint, see Case No. 01-593,
pp. 4-8.
12' See e.g. Braka r. hTacionalFinanciers, No. 83-4161 (SDNY 9 July, 1984) and Frankel v.
Bunco Nacional de Mexico, No. 82-6457 (SDNY 31 May, 1983) cited in 80 ATIL, 1986,
p. 172, note 5.
'24 119 L Ed 2d 394 (1992);100 ILR, p. 509.
11'

119 United Euram Co. v.
120 A,.

'"
'"

644

I N T E R N A T I O N A L LAW

of sovereign immunity and particularly as discussed in Alfred Dunhill v.
Republic of ~ u b a . ' ~Accordingly,''when a foreign government acts, notas regulator of a market, but in the manner of a private player within it,
the foreign sovereign's actions are "commercial" within the meaning of
the FSIA.. .the issue is whether the particular actions that the foreignstate performs (whatever the motives behind them) are the type of actions by which a private party engages in "trade or traffic or commerce"'.
In this case, the bonds in question were debt instruments that could beheld by private persons and were negotiable and could be traded on theinternational market.12'
The purchase of military equipment by Haiti for use by its army12'and a military training agreement whereby a foreign soldier was in the' ~ has~ also been decided
US were held not to be commercial a c t i ~ i t i e s . It
that Somalia's participation in an Agency for International Development
programme constituted a public or governmental act,129while the publication of a libel in a journal distributed in the US was not a commercial
activity where the journal concerned constituted an official commentaryof the Soviet government.130
Many cases before the US courts have, however, centred upon the jurisdictional requirements of section 1605(a),which states that a foreign state
is not immune in any case in which the action is based upon a commercial
activity carried on in the US by a foreign state; or upon an act performedin the US in connection with a foreign state's commercial activity elsewhere; or upon an act outside the territory of the US in connection with aforeign state's commercial activity elsewhere, when that act causes a direct
effect in the US."'"' 425 US 682 (1976);66 ILR, p. 212. Here, the plurality stated that a foreign state engaging
in commercial activities was exercising only those powers that can be exercised by private
citizens, 425 US 704.
119 L Ed 2d 394,405; 100 ILR, p. 515. Reaffirmed in Saudi Arabia v. Nelson 123 L Ed 2d47,61 (1993); 100 ILR, pp. 545,553.
"'Aerotrade Inc. v. Reptrblic ofHaiti 63 ILR, p. 41.
Casrro v. Saudi Arabia 63 ILR, p. 419.
lZy Tra~lsa~~lerica~l
Steamship Corp. v. Sornali Denzocratic Republic 590 F.Supp. 968 (1984)
and 767 F.2d 998. This is based upon the legislative history of the 1976 Act: see the H.R.
Rep. No. 1487,94th Cong., 2d Sess. 16 (1976).
"O
Yessenin-Volpirl v. Aiovosti Press Agency 443 F.Supp. 849 (1978); 63 ILR, 17. 127. See also
Schreuer, State Imrntlnity, pp. 42-3, providing a list of criteria with respect to identifyingcommercial transactions.
See e.g. International Shoe Co. v. Washington 326 US 310 (1945); McGee v. InternationalLife Insurance Co. 355 US 220 (1957); Libyan-American Oil Co. r.Libya 482 F.Supp. 1175
(1980); 62 ILR, p. 220; Perez et al. v. The Bahamas 482 F.Supp. 1208 (1980); 63 ILR,'""'IMMUNITIES FROM TURISDICTION

645

In Zedan v. Kingdom of Saudi ~rabia,'" for example, the US Courtof Appeals in discussing the scope of section 1605(a)(2) emphasisedthat the commercial activity in question taking place in the US had tobe substantial, so that a telephone call in the US which initiated a sequence of events which resulted in the plaintiff working in Saudi Arabia
was not sufficient. Additionally, where an act is performed in the US inconnection with a commercial activity of a foreign state elsewhere, thisact must in itself be sufficient to form the basis of a cause of a ~ t i o n , ' ~ "while the direct effect in the US provision of an act abroad in connection with a foreign state's commercial activity elsewhere was subject toa high threshold. As the Court noted,'34 in cases where this clause washeld to have been satisfied, 'something legally significant actually happened in the United
However, in Republic of Argentina v. Weltover ~ n c . , the' ~ ~Court rejected the suggestion that section 1605(a)(2)contained any unexpressed requirement as to substantiality or foreseeability and supported the Court of Appeals' view that an effect was direct if it followed as an immediate consequence of the defendant's activity.13' In the case, it was sufficient that the respondents had designatedtheir accounts in New York as the place of payment and Argentina had
made some interest payments into them prior to the rescheduling decision.
It is interesting to note the approach adopted in the ILC Draft on Jurisdictional Immunities. Article 10 provides for no immunity where a stateengages in a 'commercial transaction' with a foreign natural or juridical person (but not another state) in a situation where by virtue of therules of private international law a dispute comes before the courts of
p. 350 and Thoj. P. Gonzalez Corp Y. Consejo Nacional de Produccion de Costa Rica 614
F.2d 1247 (1980); 63 ILR, p. 370, aff'd 652 F.2d 186 (1982).
'j2 849 F.2d 1511 (1988).
""bid. Note that the Supreme Court i n Saudi Arabia v. Nelson 123 L Ed 2d 47, 58-9; 100
ILR, pp. 545,550-1, held that the phrase 'based on' appearing in the section, meant 'thoseelements of a claim that, if proven, would entitle a plaintiff to relief under his theory of
the case'.
849 F.2d 1515.
'j5 Referring to the cases of Transamerican Stearnship Corp. v. Sorrlali Denlocratic Republic
767 F.2d 998, 1004, where demand for payment in the US by an agency of the Somali
government and actual bank transfers were held to be sufficient, and Texas Trading 6
Milling Corp. v. Federal Republic ofNigeria 647 F.2d 300,312; 63 ILR, pp. 552,563, whererefusal to pay letters of credit issued by a US bank and payable in the US to financiallyinjured claimants was held to suffice.
136 119 L Ed 2d 394 (1992); 100 ILR, p. 509.
13' 119 L Ed 2d 407; 100 ILR, p. 517, citing 941 F.2d at 152.

646

I N T E R N A T I O N A L LAW

another state. Article 2 ( l ) c provides that the term 'commercial transaction' means:(i) any commercial contract or transaction for the sale or purchase ofgoods or the supply of services;(ii) any contract for a loan or other transaction of a financial nature, including any obligation of guarantee in respect of any such loan or ofindemnity in respect of any such loan or transaction;(iii) any other contract or transaction, whether of a commercial, industrial, trading or professional nature, but not including a contract of
employment of persons.'38

This definition is essentially the same as that suggested in previous drafts,
with the difference that the reference is to 'commercial transactions' andnot 'commercial contract'.139

Contracts of employment
Section 4(1) of the State Immunity Act 1978 provides that a state is not
immune as respects proceedings relating to a contract of employment
between the state and an individual where the contract was made in the
UK or where the work is to be performed wholly or in part there.14' The
section does not apply if at the time of the proceedings the individual isa national of the state concerned141or at the time the contract was madethe individual was neither a national nor habitual resident of the UK or
the parties to the contract have otherwise agreed in writing. However,these provisions do not apply with regard to members of a diplomatic
mission or consular post,142a fact that has rendered section 4(1) significantlyweaker.'" There have been a number of cases concerning immunityand contracts of employment, particularly with regard to employment at
foreign embassies. In Sengupta v. Republic of India, for example, a broad
Report of the International Law Con~mission,1991, pp. 13 and 69. See also above, p. 633,
with regard to the definition of 'commercial transaction' contained in Draft Article 2(2).
See Yearbook of the ILC, 1986, vol. 11, part 2, p. 8.
140 See e.g. H. Fox, 'Employment Contracts as an Exception to State Immunity: Is All PublicService Immune?: 66 BYIL, 1995, p. 97, and R. Garnett, 'State Immunity in Employment
Matters', 46 ICLQ, 1997, p. 81.
14' See e.g. Arab Republic of Egypt v. Garnal Eldin [I9961 2 All ER 237.
Section 16(l)a.
14' See e.g. Salldi Arabia v. Ahrned [I9961 2 All ER 248; 104 ILR, p. 629.

'"

IMMUNITIES FROM TURISDICTION

647

decision prior to the 1978 Act, the Employment Appeal Tribunal heldon the basis of customary law that immunity existed with regard to acontract of employment dispute since the workings of the mission inquestion constituted a form of sovereign activity.14"
The position in other countries is varied. In Norwegian Enzbassy v.
Quattri, for example, the Italian Court of Cassation referred to an international trend of restricting immunity with regard to employment
contracts. The court held that under customary international law immunity was available, but this was restricted to acts carried out in the exerciseof the foreign state's public law functions. Accordingly, no immunity existed with regard to acts carried out by the foreign state in the capacityof a private individual under the internal law of the receiving state. An
example of this would be employment disputes where the employees'
duties were of a merely auxiliary nature and not intrinsic to the foreign
public law entity.'" In Barrandon v. USA, the French Court of Cassation(1992) and subsequently the Court of Appeal of Versailles (1995) heldthat immunity was a privilege not guaranteed by an international treaty
to which France was a party and could only be invoked by a state which
believed it was entitled to rely upon it. Immunity from jurisdiction was
limited to acts of sovereign power (puissancepublique) or acts performedin the interest of a public service. In the instant case, the plaintiff, a nurse
and medical secretary at the US embassy, had performed functions clearlyin the interest of a public service of the respondent state and immunityl~~on appeal the Court of Cassation
was therefore a p p 1 i ~ a b l e . However,(1998) reversed this decision and held that her tasks did not give her
any special responsibility for the performance of the public service ofthe embassy, so that her dismissal was an ordinary act of administration
so that immunity was not a p p 1 i ~ a b l e . Practicel~~
is far from consistent.
144 65 ILR, p. 325. See also United States ofAnzericcz v. The Public Service Allirznce of Crzrlada(Re C ~ n a d nLabour Code) (1992) 91 DLR (4th) 449; 94 ILR, p. 264, holding that the
conduct of labour relations at a foreign military base was not a commercial activity so that the US was entitled to sovereign immunity in proceedings before a labour
tribunal.
114 ILR, p. 525. See also Canada v. Cargnello 114 ILR, p. 559. See also a number ofGerman cases also holding that employment functions forming part of the core sphereof sovereigil activity of the foreign states would attract immunity, otherwise not, X v.
Argentina 114 ILR, p. 502; the French Corlstllate Disabled E~rzployeecase, 114 ILR, p. 508
and Mz~llerv. USA 114 ILR, p. 513.
'46 113 ILR, p, 464.
14' 116 ILR, p. 622. The case was remitted to the Court of Appeal for decision.

'"

648

I N T E R N A T I O N A L LAW

Courts in a number of states have accepted immunity claims in such state
immunity/employment situation^,'^^ while courts in others have rejected
such ~ 1 a i m s . l ~ ~Other non-immunity areas
Domestic and international instruments prohibit sovereign immunity incases of tortious activity.'jOArticle 11 of the European Convention on
State Immunity, 1972, for example, refers to 'redress for injury to theperson or damage to tangible property, if the facts which occasioned the
injury or damage occurred in the territory of the state of the forum, andif the author of the injury or damage was present in that territory at thetime when those facts occurred'.
Section 5 of the UK State Immunity Act provides that a state is not
immune as respects proceedings in respect of death or personal injury,
or damage to or loss of tangible property, caused by an act or omission
in the UK,"' while section 1605(a)(5)of the US Foreign Sovereign Immunities Act 1976, although basically similar, does include exceptions
relating to the exercise of the state's discretionary functions and to claims
arising out of malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit or interference with contractual rights. In Letelier
v. chile,'j2 the Court rejected a claim that the torts exception in this legislation referred only to private acts and held that it could apply to politicalassassinations.
Sections 6-11 of the UK Act detail the remainder of the wide-ranging
non-immunity areas and include proceedings relating to immovable
See e.g. the Brazilian Ef~ibassy
Eniployeecase, 116 ILR, p. 625 (Portuguese Supreme Court)
and Ratnor v. USA 116 ILR, p. 634 (High Court of Lisbon).
149 See e.g. Landano v. USA 116 ILR, p. 636 (Labour Court of Geneva); Nicoud v. USA 116
ILR, p. 650 (Labour Court of Geneva); M v. Arab Republic qfEgypt 116 ILR, p. 656 (Swiss
Federal Tribunal); R v. Republic ofIraq 116 ILR, p. 664 (Swiss Federal Tribunal); Fraiicois
v. State of Canada 115 ILR, p. 418 (Labour Court of Brussels); Kingdom of Morocco v.
DR 115 ILR, 17. 421 (Labour Court of Brussels); De Queiroz v. State ofPortugal 115 ILR,
p. 430 (Labour Court of Brussels); Zarnbian Enzbassy v. Sendanayake 114 ILR, p. 532(Italian Court of Cassation), and Carbonar v. Magurno 114 ILR, 17. 534 (Italian Court ofCassation).
'jOSee e.g. Schreuer, State hiirriunity, chapter 3.
"' See also s. 6 of the Canadian State Immunity Act 1982; s. 6 of the South African Foreign
Sovereign Imn~unityAct 1981; s. 7 of the Singapore State Immunity Act 1979; and s. 13of the Australian Foreign States Iinillunities Act 1985. See also article 12 of the ILC Draft
Articles, Report of the International Law Commission, 1991, p. 102.
488 FSupp 665 (1980); 63 ILR, p. 378.
14'

IMMUNITIES FROM TURISDICTION

649

property (section 6)lS3except with regard to proceedings concerning astate's title to or right to possession of property used for the purposesof a diplomatic mission;lj4 patents, trademarks, designs, plant breeders'
rights or copyrights (section 7); proceedings relating to a state's membership of a body corporate, an unincorporated body or partnership, withmembers other than states which is incorporated or constituted under
UK law or is controlled from or has its principal place of business in the
UK (section 8); where a state has agreed in writing to submit to arbitration and with respect to proceedings in the UK courts relating to that
arbitration (section 9); Admiraltyproceedings with regard to state-owned
ships used or intended for use for commercial purposes (section 10); andproceedings relating to liability for various taxes, such as VAT (section
11). This, together with generally similar provisions in the legislationof other states,"' demonstrates how restricted the concept of sovereign
acts is now becoming in practice in the context of sovereign immunity,
although definitional problems remain.

T h e personality issue - instrumentalities and parts of the state1j6
Whether the absolute or restrictive theory is applied, the crucial factor
is to determine the entity entitled to immunity. If the entity, in very
general terms, is not part of the apparatus of state, then no immunity can arise. Shaw LJ in Trendtex Trading Corporation Ltd v. Central
Bank of Nigeria1j7 cautioned against too facile an attribution of immunity particularly in the light of the growth of governmental functions,since its acceptance resulted in a significant disadvantage to the otherparty.
A department of government would, however, be entitled to immunity, even if it had a separate legal personality under its own law.'j8 The
issue was discussed in detail in the Trendtex case. It was emphasised that'" The winding-up of a company is not protected by immunity where the state is not directly
impleaded: see section 6(3) and Re Rafidain [I9921 BCLC 301; 101 ILR, 17. 332.
Section 16(l)b.
l S s See e.g. section 1605 of the US Foreign Sovereign Immunities Act 1976 and sections 10-21of the Australian Foreign States Immunities Act 1985. Note in particular the inclusion in
the US legislation of an exception to immunity with regard to rights in property taken
in violation of international law, s. 1605(a)(3),which does not appear in other domestic
legislation.
l S 6 See e.g. Schreuer, State Immunity, chapter 5.
l S 7 [I9771 2 WLR 356,383; 64 ILR, pp. 122, 147.
l S 8 BUCCUS
SrL v. Servicio hracional del Trigo [I9571 1 Q B 438; 23 ILR, p. 160.
Is4

650

I N T E R N A T I O N A L LAW

recourse should be had to all the circumstances of the case. The fact ofincorporation as a separate legal identity was noted in Baccus SrL v.
Servicio Nacional del trig^'^^ and both Donaldson J at first instance andDenning MR emphasised this.l6' The question arises in analysing whether
a body is a corporation or not, and indeed whether it is or is not an arm ofgovernment, as to which law is relevant. Each country may have its own
rules governing incorporation, and similarly with regard to government
departments. Should English law therefore merely accept the conclusionsof the foreign law? The majority of the Court in Baccus was of the viewthat foreign law was decisive in questions relating to incorporation andwhether corporateness was consistent with the recognition of immunity,
and to a certain extent this was accepted in Trendtex. Shaw LJ declaredthat 'the constitution and powers of Nigerian corporation must be viewed
in the light of the domestic law of ~ i g e r i d l ' lHowever, the status on theinternational scene of the entity in question must be decided, it was held,by the law of the country in which the issue as to its status has been raised.
The Court had to determine whether the NigerianBank could constitute a government department as understood in English law.162It wasalso noted that where a material difference existed between English law
and the foreign law, this would be taken into account, but the Court was
satisfied that this was not the case in Trendtex.
This position of pre-eminence for English law must not be understoodto imply the application of decisions of English courts relating to immunities granted internally. These could be at best only rough guides to be
utilised depending on the circumstances of each case. If the view taken by
the foreign law was not conclusive, neither was the attitude adopted by theforeign government. It was a factor to be considered, again, but no morethan that. In this, the Court followed Krajina v. ~ a s s ~ g e n cThe
~ . 'point~~
was also made that the evidence provided by Nigerian officials, including
the High Commissioner, that the Bank was a government organ, was notconclusive. This was because the officials might very well be applying atest of governmental control which would not be decisive for the courtsof this country.164
Of more importance was the legislative intention of the government increating and regulating the entity and the degree of its control. Stephenson
119571 1 QB 438,467.
160 119771 2 WLR 356,370; 64 ILR, p. 133.
[I9771 2 WLR 356, 385; 64 ILR, p. 149.
16' 119771 2 11'LR 356, 385; 64 ILR, p. 175.
16' 119491 2 All ER 274.
164 [I9771 2 WLR 356,370 and 374; 64 ILR, p. 137, 139.
li9

16'

IMMUNITIES FROM TURISDICTION

6 jl

LJ in fact based his decision upon this point. An express provision in thecreative legislation to the effect that the Bank was an arm of government
was not necessary, but the Bank had to prove that the intention to makeit an organ of the Nigerian state was of necessity to be implied fromthe enabling Central Bank of Nigeria Act 1958 and subsequent decrees.
This the Bank had failed to do and Stephenson LJ accordingly allowed
the appeal.'" It could be argued that the judge was placing too muchstress upon this aspect, particularly in the light of the overall approachof the Court in applying the functional rather than the personality test.
In many ways, Stephenson LJ was also looking at the attributes of the
Bank but from a slightly different perspective. He examined the powers
and duties of the entity and denied it immunity since the intention of thegovernment to establish the Bank as an arm of itself could not be clearly
demonstrated. The other judges were concerned with the functions of the
Bank as implying governmental status per se.
The Court clearly accepted the functional test as the crucial guide to
the determination of sovereign immunity. In this it was following themodern approach which has precipitated the change in emphasis fromthe personality of the entity for which immunity is claimed to the natureof the subject matter. This functional test looks to the powers, duties
and control of the entity within the framework of its constitution andactivities.
In such difficult borderline decisions, the proposition put forward by
Shaw LJ is to be welcomed. He noted that:
where the issue of status trembles o n a fine edge, the absence of any positive
indication that the body in question was intended to possess sovereign
status and its attendant privileges must perforce militate against the viewthat it enjoys that status or is entitled to those privileges.'66

In Czarnikow Ltd v. ~oliruzpex,'~'the House ofLords accepted as correct
the findings of the arbitrators that although Rolimpex had been established by the Polish government and was controlled by it, it was not so
closely connected with the government as to be an organ or department of
the state. It had separate legal personality and had considerable freedom
in day-to-day commercial activities.
'13'[I9771 2 WLR 356, 374-6. See also Shaw LJ, ibid.,p. 384; 64 ILR, p. 149.

'66

Ibid.

'15'

[I9791 AC 351,364 (Lord Wilberforce) and 367 (Viscount Dilhorne).

652

I N T E R N A T I O N A L LAW

Under section 14(1) ofthe State Immunity Act of 1978, a state is deemed
to include the sovereign or other head of state in his public capacity,168
the government and any department of that government, but not any
entity 'which is distinct from the executive organs of the government of
the state and capable of suing or being sued'. This modifies the Baccus
and Trendtex approaches to some extent. Such a separate entity would
only be immune if the proceedings related to acts done 'in the exercise
of sovereign authority' and the circumstances are such that a state would
have been so immune.'69In determining- such a situation, all the relevant
circumstances should be taken into ~ o n s i d e r a t i o n .In' ~ ~Kuwait Airways
Corporation v. Iraqi Airways Co., the House of Lords, in discussing theposition ofthe Iraqi Airways Company (IAC), analysed the relevant transactions as a whole but felt able to separate out differing elements and treat
them discretely. In brief, aircraft of the plaintiffs (KAC) had been seized
by IAC consequent upon the Iraqi invasion of Kuwait in 1990 and pursuant to orders from the Iraqi government. Revolutionary Command
C o ~ n c i l "resolution~
369 purported to dissolve KAC and transfer all of
its assets to IAC. From that point on, IAC treated the aircraft in question
as part of its own fleet. The issue was whether the fact that the initial appropriation was by governmental action meant that the plea of immunity
continued to be available to IAC. The House of Lords held that it was not.
Once resolution 369 came into effect the situation changed and immunity was no longer applicable since the retention and use of the aircraft
were not acts done in the exercise of sovereign authority. A characterisation of the appropriation of the property as a sovereign act could not
be determinative of the characterisation of its subsequent retention anduse.172
The US Foreign Sovereign Immunities Act of 1976 provides in section 1603 that 'foreign state' includes a political subdivision of sucha state and its agencies
or instrumentalities. This is defined to mean
any entity which is a separate legal person and which is an organ of
a foreign state or political subdivision thereof or a majority of whose
shares or other ownership interest is owned by a foreign state or politicalsubdivision thereof and which is neither a citizen of a state of the

'"

"O

'"
'''

See further below, p. 655.
Sect~on14(2).
See e.g. Hollund v. Lampen-Wove [2000]1 M'LR 1573.
Essent~allythe Iraqi government.
[I9951 1 WLR 1147, 1163 (per Lord Goff). Cf. Lord Mustill at 1174 who argued that thecontext should be taken as a whole so that iininunity continued.

IMMUNITIES FROM TURISDICTION

653

United States nor created under the laws of any third country."3 Thisissue of personality has occasioned problems and some complex decision~." ~In First National City Bank v. Banco Para el Comercio Exterior de Cuba
( ~ a n c e c ) , ' ~for' example, the Supreme Court suggested a presumption of
separateness for state entities, under which their separate legal personalities were to be recognised unless applicable equitable principles mandated
otherwise or the parent entity so completely dominated the subsidiary as
to render it an agent of the parent.Ii6
The meaning of the term 'government' as it appears in section 1 4 ( 1 )of the State Immunity Act was discussed in Propend Finance v. Sing. The
Court of Appeal held that it must be given a broad meaning and, in particular, that it should be construed in the light of the concept of sovereignauthority. Accordingly, 'government' meant more than it would in othercontexts in English law where it would mean simply the government of
the United Kingdom. In particular it would include the performance ofpolice functions as part of governmental activity. Further, individual employees or officers of a foreign state were entitled to the same protection
as that which envelops the state itself. The Court thus concluded that both
the Australian Federal Police superintendent and Commissioner, the defendants in the case, were covered by state i m r n ~ n i t y . " The~ view thatthe agent of a foreign state would enjoy immunity in respect of his actsof a sovereign or governmental nature was reaffirmed in Re P ( N o . 2).
The Court accepted that the removal from the country of the family ofa diplomat based in the UK and their return to the US at the end of his
mission was in compliance with a direct order from his government. ThisSee e.g. Gittler v. German Information Centre 408 NI'S 2d 600 (1978); 63 ILR, p. 170;
Carey v. National Oil Co. 453 F.Supp. 1097 (1978); 63 ILK, p. 164 and Yessenin-Volpin v.
Novosti PressApncy443 F.Supp. 849 (1978); 63 ILR, p. 127. See also Sinclair, 'Sovereign
Imn~unity:pp. 248-9 and 258-9. Note, in addition, articles 6 and 7 of the European
Convention on State Immunity, 1972.
See also article 2( l ) b ofthe ILC Draft Articles, in~vhichthe term 'state' is defined to indude'political subdivisions of the state which are entitled to perform acts in the exercise ofsovereign authority' and 'agencies or instrumentalities of the state and other entities, tothe extent that they are entitled to perform acts in the exercise ofthe sovereign authority ofthe state: This formulation has raised controversy in appearing to establish a presumptionof imillunity for such entities: see Report of the International Law Commission, 1991,
p. 13.
17' 462 US 611 (1983); 80 ILR, p. 566.
176 See also Foremost-McKesson Inc. v. IslamicRepublic ofIran 905 F.2d 438 (1990).
177 111 ILR,pp611,667-71.

654

I N T E R N A T I O N A L LAW

was held to constitute an act of a governmental nature and thus subject
to state immunity.178
One particular issue that has caused controversy in the past relates tothe status of component units of federal states.li9 There have been casesa ~ s e r t i n ~ i r n r n u nandi t ~ denyingimmunity'8''~~
in such circumstances. In
Mellenger v. New Brunswick Development Corp~ration,'~'Lord Denningemphasised that since under the Canadian Constitution,
Each provincial government, within its own sphere, retained its independence and autononly directly under the C r o w n . . . It follo~vsthat theProvince ofNew Brunswick is a sovereign state in its own right and entitled
if it so wishes t o claim sovereign immunity.

However, article 28 of the European Convention on State Immunity,
1972 provides that constituent states of a federal state do not enjoy immunity, although this general principle is subject to the proviso that federal
state parties may declare by notification that their constituent states may
invoke the benefits and carry out the obligations of the ~ 0 n v e n t i o n . l ~ ~The State Immunity Act follows this pattern in that component units ofa federation are not entitled to immunity. However, section 14(5) provides
that the Act may be made applicable to the 'constituent territories of afederal state by specific Order in Coun~il'.~~"here no such order ismade, any such 'constituent territory' would be entitled to immunity only
if it conformed with section 14(2), being a separate entity acting in theexercise of sovereign authority and in circumstances in which the state[I9981 1 FLR 1027, 1034-5; 114 ILR, p. 485. See also J. C. Barker, 'State Immunity,
Diplomatic Immunity and Act of State: A Triple Protection Against Legal Action?: 47
ICLQ, 1998, p. 950.
See e.g. I. Bernier, International Legal Aspects ofFederalistn, London, 1973, pp. 121 ff. andSucharitkul, State I~nmunities,p. 106.
IS' See e.g. Feldtnan c. Etat deBahia, PasicrisieBelge, 208,II, 55; Etat de Cturu c. Dorr et autres
4 AD, p. 39; Etat de Ceara c. D'Archer de Montgascorl, 6 AD, p. 162 and Durnont c. Etat
d'Arnazonas 15 AD, p. 140. See also Etat de Hesse c. Jean Neger 74 Revue Gtnerale de Droit
International Public, 1970, p. 1108.
18' See e.g. Sullivan v. State ofSao Paulo 122 F.2d 355 (1941); 10 AD, p. 178.
lS2 [I9711 2 All ER 593, 595; 52 ILR, pp. 322, 324. See also Stviss-Israel Trade Bank v. Salta
55 ILR, p. 411.
IS' See e.g. I. Sinclair, 'The European Convention on State Immunity: 22 ICLQ, 1973,
pp. 254,279-80.
An Order in Council has been made with respect to the constituent territories ofAustria, SI
1979 no. 457, and Germany, SI 1993 ilo.2809. The Act may also be extended to dependent
territories: see e.g. the State Immunity (Overseas Territories) Order 1979, SI 1979 no. 458
and the State Immuility (Tersey) Order 1985, SI 1985 no. 1642.

"'

IMMUNITIES FROM TURISDICTION

655

would be immune.1s5 Article 2(1)b of the ILC Draft Articles, it should
be noted, includes within its definition of state, 'constituent units of afederal state'.'86 The issue of the status of the European Community inthis context was raised in the course of the ITC litigation as the EEC was aparty to the sixth International Tin Agreement, 1982 under which the ITC
was constituted. The Court of Appeal in Maclaine Watson v. Departmentof Trade aizd ~ n d u s t r ~held" ~ that the EEC's claim to sovereign immunity
was untenable. It had been conceded that the EEC was not a state andthus could not rely on the State Immunity Act 1978, but it was argued
that the Community was entitled to immunity analogous to sovereign
immunity under the rules of common law. This approach was held by Kerr
LJ to be 'entirely misc~nceived'.'~~
Although the EEC had personality ininternational law and was able to exercise powers and functions analogous
to those of sovereign states, this did not lead on to immunity as such.
This was because sovereign immunity was 'a derogation from the normal
exercise of jurisdiction by the courts and should be accorded only in clear
cases',189while the concept itself was based upon the equality of states.
The EEC Treaty, 1957 and the Merger Treaty, 1965 themselves made no
claim for general immunity and nothing else existed upon which such aclaim could be based.lgO

The personality issue - immunity for government figures
The question of immunity ratione personae arises particularly and moststrongly in the case of heads of state. Such immunity issues may comeinto play either with regard to international tribunals or within domesticorders. Taking the first, it is clear that serving heads of state, and other
BCCI v. Price Waterhouse [I9971 4 All ER 108; 111 ILR, p. 604.
See Report of the International Law Commission, 1991, p. 13. Note that article I of the
Revised Draft Articles for a Convention on State Immunity adopted by the International
Law Association in 1994 defines the term 'foreign state' to include the government of thestate, any other state organs and agencies and instrumentalities ofthe state not possessing
legal personality distinct from the state. No specific reference to units of federal states ismade.
la' [l988] 3 WLR 1033; 80 ILR, p. 49.
l a 8 [l988] 3 WLR 1107; 80 ILR, 17. 122.
l X y ~ i c t o Transportr~
V . Cornisaria General de Abastecirnierltos y Trarzsportes 336 F.2d 354(1964), cited with approval by Ackner LJ in Erripresa Exportadora de Azucar v. Industria
Azucarera Nacional [I9831 2 LL. R 171, 193 and Lord Edmund-Davies in I' Corlgreso delPurtido [I9831 1 AC 244,276.
[I9881 3 IVLR 1033, 1108-12; 80 ILR, pp. 49, 123. Nourse and Ralph Gibson LLTagreed with Kerr LJ completely on this issue, ibid., pp. 1131 and 1158; 80 ILR,
pp, 150, 180.

lsi
See e.g.

Ix6

'"

656

I N T E R N A T I O N A L LAW

governmental officials, may be rendered susceptible to the jurisdictionof international tribunals, depending, of course, upon the terms of theconstitutions of such tribunals. The provisions of, for example, the Versailles Treaty, 1919 (article 227); the Charter of the International Military
Tribunal at Nuremberg, 1945 (article 7); the Statutes of the Yugoslav andRwanda War Crimes Tribunals (articles 7 and 6 respectively); and theRome Statute of the International Criminal Court 1998 (article 27) all
expressly state that individual criminal responsibility will exist irrespective of any official status, including that of head of state. The situation of
immunity before domestic courts is more complex.
First, the question of the determination of the status of head of state
before domestic courts is primarily a matter for the domestic order of theindividual concerned. In Republic of the Philippines v. Marcos (No. 1),I9l
for example, the US Court of Appeals for the Second Circuit held that
the Marcoses, the deposed leader of the Philippines and his wife, were
not entitled to claim sovereign immunity. In a further decision, the Courtof Appeals for the Fourth Circuit held in In re Grand Jury Proceedings,
Doe No. 770I9"hat head of state immunity was primarily an attributeof state sovereignty, not an individual right, and that accordingly full
effect should be given to the revocation by the Philippines governmentof the immunity of the ~ a r c 0 s e s . Alsol ~ ~ relevant would be the attitude
adopted by the executive in the state in which the case is being brought.
eCourt noted that head of state immunity
In US v. ~ o r i e ~ a , l ~ " hDistrict
was grounded in customary international law, but in order to assert such
immunity, a government official must be recognised as head of state andthis had not happened with regard to General ~ 0 r i e ~ a .This
I ~ ' was confirmed by the Court of Appeals for the Eleventh Circuit, who noted thatthe judiciary deferred to the executive in matters concerning jurisdiction
over foreign sovereigns and their instrumentalities, and, in the Noriega
situation, the executive had demonstrated the view that he should not
be granted head of state status. This was coupled with the fact that hehad never served as constitutional ruler of Panama and that state had
not sought immunity for him; further the charges related to his private'" 806 F.2d 344 (1986); 81 ILR, p. 581. See also e.g. Re Honecker 80 ILR, p. 365.
817 F.2d 1108 (1987); 81 ILR, p. 599.
'" See also Doe v. United Statex ofArrlerica 860 F.2d 40 (1988); 121 ILR, p. 567.
746 F.Supp 1506, 1519 (1990); 99 ILR, pp. 143, 161.
'" See also Watts, 'Legal Position', pp. 52 ff. See also H. Fox, 'The Resolution of the Institute
'92

'94

of International Law o n the Immunities of Heads of State and Government: 51 ICLQ,
2002, p. 119.

IMMUNITIES FROM TURISDICTION

657

e n r i ~ h m e n t . In
' ~ ~First American Corporation v. Al-Nahyan, the District
Court noted that the Foreign Sovereign Immunities Act did not affect theright of the US government to file a Suggestion of Immunity asserting
immunity with regard to a head of state and this would be binding on the~0urts.l~~Secondly, international law has traditionally made a distinction between the official and private acts of a head of state.198In the case of civil
proceedings, this means that a head of state may be susceptible to the jurisdiction where the question concerns purely private acts as distinct fromacts undertaken in exercise or ostensible exercise of public a ~ t h 0 r i t y . I ~ ~Thirdly, serving heads of state benefit from absolute immunity fromthe exercise of the jurisdiction of a foreign domestic
This hasbeen reaffirmed in Exparte Pinochet (No. 3). Lord Browne-Wilkinson, forexample, noted that, 'This immunity enjoyed by a head of state in power
and an ambassador in post is a complete immunity attaching to the person of the head of state or ambassador and rendering him immune fromall actions or prosecutions whether or not they relate to matters done forthe benefit of the state."" Lord Hope referred to the 'jus cogens characterof the immunity enjoyed by serving heads of state ratione personae:202
This approach affirming the immunity of a serving head of state is endorsed by the decision of the French Cour de Cassation in the Ghaddafi
case.203
Fourthly, the immunity of a former head of state differs in that it maybe
seen as moving from a status immunity (rationepersonae) to a functional
immunity (ratione materiae), so that immunity will only exist for official
19"17
F.3d 1206 (1997); 121 ILR, p. 591. See also Flato~liu. Islamic Republic of Iran 999
F.Supp. 1 (1998); 121 ILR, p. 618.
19'
948 F S u p p 1107 (1996); 121 ILR, p. 577.
See e.g. the Draft Articles o n Jurisdictional Immunities of the International Law Commission, 1991, pp. 16,24-5 and 35.
19' See e.g. Repnblic ofthe Philippines v. LMarcos(No. I ) , 806 F.2d 344 (1986); 81 ILR, p. 581;
Jinienez v. Arijteguieta 33 ILR, p. 353; Lafontant v. Aristide 103 ILR, pp. 581, 585 andMobutu and Republic of Zaire v. SociQtQLogrille 113 ILR, p. 481. See also \L7atts, 'Legal
Position', pp. 54 ff.
See e.g. Watts, 'Legal Position: p. 54.
[2000] 1 AC 147,201-2; 119 ILR, p. 135.
'02 [2000] 1 AC 244. See also Lord Goff at 210; Lord Saville at 265 and Lord Millett at 269.
See also the decision of 12 February 2003 of the Belgian Court of Cassation in HS,4et al. v. S A et al., No. P. 02.1139. F l l , affirming the immunity of Prime Minister Sharonof Israel.
20' Arret no. 1414, 14 March 2001, Cass. Crim. 1. See e.g. S. Zappala, 'Do Heads of State in
Office Enjoy Immunity from Jurisdiction for International Crimes? The Ghaddafi Case
Before the French Cour de Cassation', 12 ETIL, 2001, p. 595.

658

I N T E R N A T I O N A L LAW

acts done while in office. The definition of official acts is somewhat unclear,but it is suggested that this would exclude acts done in clear violation ofinternational law. It may be concluded at the least from the judgment inExparte Pinochet ( N o . 3 ) that the existence of the offence in question as acrime under international law by convention will, when coupled in some
way by a universal or extraterritorial mechanism of enforcement, operate
to exclude a plea of immunity ratione rnateriae at least in so far as states
parties to the relevant treaty are concerned.204 his may be a cautious
reading and the law in this area is likely to evolve further.
The question as to whether immunities rationepersonae apply to othergovernmental persons has been contro~ersial.~~'The International Law
Commission, for example, in its commentary on the Draft Articles on
Jurisdictional Immunities distinguished between the special position as
regards immunities rationepersonae of personal sovereigns (which would
include heads of state) and diplomatic agents from that of other representatives of the government who would have only immunities ratione
m a t e r i ~ e . ~However,'~in its judgment in the Congo v. Belgium case, theInternational Court of Justice stated that, 'in international law it is firmly
established that.. . certain holders of high-ranking office in a state, suchas the head of state, head of government and minister for foreign affairs,
enjoy immunities from jurisdiction in other states, both civil and criminal'.'07 The Court took the view that serving Foreign Ministers would
benefit from immunity rationepersonae on the basis that such immunities were in order to ensure the effective performance of their functions on[2000] 1 AC 147 at e.g. 204-5 (Lord Browne-JVilkinson); 246 (Lord Hope); 262 (Lord
Hutton); 266-7 (Lord Saville); 277 (Lord Millett); 290 (Lord Phillips); 119 ILR, p. 135.
Note that by virtue of section 20 of the State Immunity Act cross-referring to the Diplomatic Privileges Act 1964 incorporating the Vienna Convention on Diplomatic Relations,
1961, the immunities of a head of state were assimilated to those of the head of a diplomatic mission. Article 39(2) of the Vienna Convention provides that once a diplomat's
functions have come to an end, immunity will only exist as regards acts performed 'in
the exercise of his functions:
lo-otethat as far as UK law is concerned, the provisions of section 20(1) of the State
Immunity Act do not apply so that the analogy with diplomatic agents is not relevant:see previous footnote.
'06 See the Report ofthe International Law Commission, 199 1, pp. 24-7. See also Watts, 'Legal
Position', pp. 53 and 102, who adopts a similar position. Lord Millett in Exparte Pinochet(No. 3) took the view that immunity ratiorie personae was 'only narrowly available. It is
confined to serving heads of state and heads of diplomatic missions, their families andservants. It is not available to serving heads of government who are not also heads ofstate.. . ', [2000] 1 AC 147 at 268; 119 ILR, p. 135.
'07 ICJ Reports, 2002, para. 51. See also A. Cassese, 'b11en May Senior State Officials Be Tried
for International Crimes?', 13 EJIL, 2002, p. 853.
'04

IMMUNITIES FROM TURISDICTION

659

behalf of their states.208The extent of such immunities would be dependent upon the functions exercised, but they were such that 'throughout the
duration of his or her office, he or she when abroad enjoys full immunityfrom criminal jurisdiction and inviolability',209irrespective of whether
the acts in question have been performed in an official or a private cap a ~ i t ~ .This~ l ' absolute immunity from the jurisdiction of foreign courts
would also apply with regard to war crimes or crimes against h ~ i n a n i t y . ~ l l
Immunities derived from customary international law would remain opposable to national courts even where such courts exercised jurisdiction
under various international conventions requiring states parties to extend
their criminal jurisdiction to cover the offences in question.212The Court
concluded by noting that after a person ceased to hold the office of Foreign Minister, the courts of other countries may prosecute with regard toacts committed before or after the period of office and also 'in respect ofacts committed during that period of office in a private capacity'.213This
appears to leave open the question of prosecution for acts performed inviolation of international law (such as, for example, torture), unless theseare deemed to fall within the category of private acts.

Waiver ofimmunity
It is possible for a state to waive its immunity from the jurisdiction of thecourt. Express waiver of immunity from jurisdiction, however, does not of
itself mean waiver of immunity from execution.214In the case of implied
ICJ Reports, 2002, para. 53.
'09 Ibid., para. 54.
Ibid., para. 55.
'I1 Ibid., para. 58.
Ibid., para. 59. See, as to such conventions, above, chapter 12, p. 594. See also the application brought by the Government of the Congo against France on 9 December 2002.
France consented to the Court's jurisdiction on 11 April 2003. In its Application, theCongo seeks the annulment of the investigation and prosecution measures taken by the
French judicial authorities further to a complaint for crimes against humanity and torture
filed by various associations against inter alia the President of the Republic of the Congo,
Mr. Denis Sassou Nguesso, and the Congolese Minister of the Interior, Mr. Pierre Oba,
together with other individuals including General Norbert Dabira, Inspector-General of
the Congolese Armies. The Application further states that, in connection with these proceedings, an investigating judge of the Meaux tribunal d e g a n d e instance issued a warrant
for the President of the Republic of the Congo to be examined as a witness. The Congodeclares this to be a violation of international law. See also the order of the ICr of 17 June
2003 refusing an indication of provisional measures in this case.
213 ICJ Reports, 2002, para. 61. But see the Dissenting Opinion of Judge Al-Khasawneh.
214 See e.g. article 18(2) of the ILC Draft Articles on Jurisdictional Immunities, Report of
the International Law Commission, 1991, p. 134. Note, however, that the issue will turnupon the interpretation of the terms of the waiver: see A Company v. Republic ofX [I9901
'08

'lo

"'

660

I N T E R N A T I O N A L LAW

waiver, some care is required. Section 2 ofthe State Immunity Act provides
for loss of immunity upon submission to the jurisdiction, either by a priorwritten agreement215 or after the particular dispute has arisen. A state isdeemed to have submitted to the jurisdiction where the state has instituted
proceedings or has intervened or taken any step in theIfa state submits to proceedings, it is deemed to have submitted to any
counter-claim arising out of the same legal relationship or facts as theclaim.217A provision in an agreement that it is to be governed by the lawof the UK is not to be taken as a submission. By section 9, a state which
has agreed in writing to submit a dispute to arbitration is not immune
from proceedings in the courts which relate to the a r b i t r a t i ~ n . ~The'~issue of waiver is also a key factor in many US cases. Section 1605(a)(l)of the Foreign Sovereign Immunities Act 1976 provides that a foreignstate is not immune where it has waived its immunity either expressly or
by implication, notwithstanding any withdrawal of the waiver which theforeign state may purport to effect, except in accordance with the termsof the waiver.219The Court of Appeals has held, however, that the implied

'I5

'I6

"'
'I8

2 LL. R 520; 87 ILR, p. 412. However, it is suggested that the principle that waiver of
immunity from jurisdiction does not of itself constitute a waiver of immunity from the
grant of relief by the courts is of the nature of a presumption, thus placing the burden of
proof to the contrary upon the private party and having implications with regard to thestandard of proof required. See also Sabah Shipyard v. Pakistan [2002] EI1'CA Civ. 1643
at paras. 18 ff.
Overruling Kizhan v. Pakistan Federation [I9511 2 KB 1003; 18 ILR, p. 210. Submission to
the jurisdiction by means of a provision in a contract must be in clear, express language.
The choice of UK law as the governing law of the contract did not amount to such a
submission: see Mills u.U S A 120 ILR, p. 612.
But not where the intervention or step taken is only for the purpose of claimingimmunity,or where the step taken by the state is in ignorance of facts entitling it to immunity if
those facts could not reasonably have been ascertained and immunity is claimed as soon
as reasonably practicable, s. 2(5). See also article 1 of the European Convention on State
Immunity, 1972 and article 8 of the ILC Draft Articles on Jurisdictional Immunities: see
Report of the International Law Commission, 1991, p. 53.
See also article 1 of the European Convention on State Immunity, 1972 and article 9 of
the ILC Draft Articles on Jurisdictional Immunities: see Report of the International Law
Commission, 1991, p. 60.
See also article 12 of the European Convention on State Immunity, 1972 and article 17 of
the ILC Draft Articles on Jurisdictional Immunities: see Report of the International Law
Commission, 1991, p. 128.
See e.g. Siderrnan v. ReptlblicofArgentina 965 F.2d 699 (1992); 103 ILR, p. 454. It should
also be noted that a substantial number of bilateral treaties expressly waive immunityfrom jurisdiction. This is particularly the case where the states maintaining the absolute
immunity approach are concerned: see e.g. UN, Materials, part 111. See also USA v.
Friedland (1998) 40 OR (3d) 747; 120 ILR, p. 418.

IMMUNITIES FROM TURISDICTION

661

waiver provision did not extend to conduct constituting a violation of jus

cog en^.^^'

Section 1610(d) of the US Foreign Sovereign Immunities Act 1976 prohibits the attachment of the property of a foreign state before judgment
unless that state has explicitly waived its immunity from attachment prior
to judgment and the purpose of the attachment is to secure satisfactionof a judgment that has been or may be entered against the foreign state.
A variety of cases in the US has arisen over whether general waivers contained in treatyprovisions maybe interpreted as permittingpre-judgment
attachment, in order to prevent the defendant from removing his assets
from the jurisdiction. The courts generally require clear evidence of theintention to waive pre-judgment attachment, although that actual phrase
need not necessarily be used.222
Under the UK State Immunity Act 1978, no relief may be given against
a state by way of injunction or order for specific performance, recoveryof land or recovery of any property without the written consent of that
The question has therefore arisen as to whether a Mareva injunction,224ordering that assets remain within the jurisdiction pending
the outcome of the case, may be obtained, particularly since this type of
injunction is interlocutory and obtained ex parte. It is suggested that an
application for a Mareva injunction may indeed be made ex parte since"' Smith v. Libya 101 F.3d 239 (1996); 113 ILR, p. 534. See also Hirsch v. State ofIsrael 962
F.Supp. 377 (1997); 113 ILR, p. 543.
See e.g. J. Crawford, 'Execution of Judgments and Foreign Sovereign Immunity: 75 AJIL,
1981, pp. 820, 867 ff., and Schreuer, Statelmmlrnity, p. 162.
777--- See e.g. Uehring Intfrnational Inc. v. Imperial Iranian Air Forcf 475 F.Supp. 383 (1979);
63 ILR, y. 261; Reading ch Bates Coup. v. National Iranian Oil Company 478 F.Supp. 724(1979); 63 ILR, p. 305; New England Mercllrzr~tsivational Bank v. lran Polver Generation
and Trrtnsmission Compnny 19 I L M , 1980, p. 1298; 63 ILR, p. 408; Security PacificNationnl
Rank v. Government o f l m n 513 F.Supp. 864 (1981); Libra Rank Ltd v. Aanco Nacional de
Costa Rica 676 F.2d 47 (1982); 72 ILR, p. 119; S & S Machinery Co. v. ri4asinexportimport
706 F.2d411 (1981) and O'Connell LVlaclzirreryv. iMVArnericanu 734 F.2d 115 (1984). See
also article 23 of the European Conveiltion on State Immunity prohibiting such action
and article 18 of the ILC Draft Articles on Jurisdictional Immunities: see Report of theInternational Law Commission, 1991, p. 134.
223 S. 13(2).
224 See Mareva Compania Naviera v. Iizterizational Bz~lkcarriers[I9751 2 LL. R 509. See also
S. Gee, iMureva b~junctions& Anton Piller Relief; 2nd edn, London, 1990, especially at
p. 22.

6 62

I N T E R N A T I O N A L LAW

immunity may not apply in the circumstances of the case. In applying
for such an injunction, a plaintiff is under a duty to make full and frank
disclosure and the standard of proof is that of a 'good and arguable case',
explaining, for example, why it is contended that immunity would not
be applicable. It is then for the defendant to seek to discharge the injunction by arguing that these criteria have not been met. The issue as to
how the court should deal with such a situation was discussed in A Company v. Republic ofSaville J noted that the issue of immunity had
to be finally settled at the outset so that when a state sought to dischargea Mareva injunction on the grounds of immunity, the court could notallow the injunction to continue on the basis that the plaintiff has a goodarguable case that immunity does not exist, for if immunity did exist 'then
the court simply has no power to continue the injunction'. Accordingly,
a delay between the granting of the injunction ex parte and the final determination by the court of the issue was probably ~ n a v o i d a b l e . ~The'~situation is generally the same in other countries.227

Immunity from execution228
Immunity from execution is to be distinguished from immunity from jurisdiction, particularly since it involves the question of the actual seizureof assets appertaining to a foreign state. As such it poses a considerable
challenge to relations between states and accordingly states have proved
unwilling to restrict immunity from enforcement judgment in contradistinction to the situation concerning jurisdictional immunity. Article 23of the European Convention on State Immunity, 1972 prohibits any measures of execution or preventive measures against the property of a contracting state in the absence of written consent in any particular case.
However, the Convention provides for a system of mutual enforcementof final judgments rendered in accordance with its provisions229and an""1990]2 LL. R 520; 87 ILR, p. 412.
[I9901 2 LL. R 525; 87 ILR, 17. 417, citing Maclaitze M'atsotz v. Department of Trade andIndustry [I9881 3 W L R 1033 at 1103-4 and 1157-8.
But see the case of Cortdor and Filverit v. Minister o f Justice 101 ILR, p. 394 before the
Italian Constitutional Court in 1992.
22S See e.g. Schreuer, State Immunity, chapter 6 ; Sinclair, 'Sovereign Immunity: chapter 4; Nguyen Quoc Dinh et al., Droit International Public, p. 453; Crawford, 'Execution of Judgments'; H. Fox, 'Enforcement rurisdiction, Foreign State Property and
Diplomatic Immunity', 34 ICLQ, 1985, p. 115, and various articles in 10 Netherlands
YIL, 1979.
??"rticle
20.

"'

IMMUNITIES FROM TURISDICTION

6 63

Additional Protocol provides for proceedings to be taken before the European Tribunal of State Immunity, consisting basically of members of theEuropean Court of Human Rights. Article 18 of the ILC Draft Articles on
Jurisdictional Immunities provides that no measures of constraint may
be taken against the property of a state unless that state has expressly consented by international agreement, or by an arbitration agreement or written contract, or by a declaration before the Court or by a written communication after a dispute between the parties has arisen. In addition, the statemust have allocatedproperty for the satisfaction ofthe claim in question or
the property is specifically in use or intended for use by the state for otherthan government non-commercial purposes and is in the territory of
the state of the forum and has a connection with the claim concerned
or with the agency or instrumentality against which the proceeding was
directed.230
Section 13(2)b of the UK State Immunity Act provides, for instance,that 'the property of a state shall not be subject to any process for theenforcement of a .judgment
or arbitration award or, in an action in rem,for its arrest, detention or sale'. Such immunity may be waived by writtenconsent but not by merely submitting to the jurisdiction of the courts,231
while there is no immunity from execution in respect of property which isfor the time being in use or intended for use for commercial purposes.232
It is particularly to be noted that this latter stipulation is not to apply toa state's central bank or other monetary institution.233Thus, a Trendtex
type of situation could not arise again in the same form. It is also interesting that the corresponding provision in the US Foreign Sovereign
Immunities Act of 1976 is more restrictive with regard to immunity fromexe~ution.'~"he principle that existence of immunity from jurisdiction"O

See Report of the International Law Commission, 1991, p. 134.

"' S. 13(3).See also s. 14 of the South African Foreign Sovereign Immunity Act 1981; s. 14of the Pakistan State Immunity Ordinance 1981; s. 15 of the Singapore State Immunity
Act 1979 and s. 31 of the Australian Foreign States Immunities Act 1985.
S. 13(4).
*" S. 14(4).
'j4 Section 1610. Thus, for example, there would be no immunity with regard to property
taken in violation of international law. See also First National City Bank v. Banco Para El
Contercio Exterior de Cuba 462 US 611 (1983); Letelier v. Republic o f Chile 748 F.2d 790(1984) and Foxworth v. Pernlanerzt Mission of the Republic of Uganda to the United Nations
796 F.Supp. 761 (1992); 99 ILR, 13. 138. See also G. R. Delaume, 'The Foreign Sovereign
Immunities Act and Public Debt Litigation: Some Fifteen Years Later: 88 ATIL, 1994, pp.
257, 266. Note that in 1988, the legislation was amended to include a provision, which
provides that with regard to measures of execution following confirn~ationof an arbitralaward, all the comn~ercialproperty of the award debtor was open to execution, new s.
1610(a)(6),ibid.

'"

664

I N T E R N A T I O N A L LAW

does not automatically entail immunity from execution has been reaffirmed on a number of occasion^."^In 1977, the West German Federal Constitutional Court in the Philippine Embassy case236declared that:forced execution of judgment by the state of the forum under a writ ofexecution against a foreign state which has been issued in respect of nonsovereign acts.. .of that state, or property of that state which is present or
situated in the territory of the state of the forum, is inadmissible without theconsent of the foreign state if. . . such property serves sovereign purposesof the foreign state.

In particular it was noted that:claims against a general current bank account of the embassy of a foreignstate which exists in the state of the forum and the purpose of which is tocover the embassy's costs and expenses are not subject to forced execution
by the state of the forum.237

This was referred to approvingly by Lord Diplock in Alcom Ltd v. Republic of ~ o l o r n b i aa, ~case~ ~which similarly involved the attachment of abank account of a diplomatic mission. The House of Lords unanimously
accepted that the general rule in international law was not overturned in
the State Immunity Act. In Alcom, described as involving a question oflaw of 'outstanding international importance',239it was held that such abank account would not fall within the section 13(4) exception relating
to commercial purposes, unless it could be shown by the person seeking to attach the balance that 'the bank account was earmarked by theforeign state solely. . . for being drawn on to settle liabilities incurred incommercial transactions'.240 The onus of proof lies upon the applicant.

"' See e.g. Abbott u.South Africa 113 ILR,p. 411 (Spanish Constitutional Court); Centre forIndustrial Developnlent v. Naidu 115 ILR, p. 424 and Flatow v. Islamic Republic qf Iran
999 F.Supp. 1 (1998);121 ILR, p. 618.
'j6 See UN, Materials, p. 297; 65 ILR, pp. 146, 150.
UN, Materials, pp. 300-1; 65 ILR, p. 164.
[I9841 2 All ER 6; 74 ILR, p. 180, overturning the Court of Appeal Decision, [I9841 1 All
ER 1; 74 ILR, 17. 170.
[1984] 2 All ER 14; 74 ILR, p. 189.
240 [I9841 2 All ER 13; 74 ILR, p. 187. But cf. Birch Shipping Corporation v. Embassy of theUnited Republic of Tanzarlia 507 F.Supp.311 (1980); 63 ILR, p. 524. But see the decision of
the Swiss Federal Tribunal in 1990 in Z v. Geneva Supervisory Authorityfor theEnforcementofDebts and Bankruptcy, 102 ILR, p. 205, holding that funds allocated for the diplomatic
service of a foreign state were immune from attachment.

"'"'

IMMUNITIES FROM TURISDICTION

665

It is also to be noted that under section 13(5) of the Act, a certificate
by a head of mission to the effect that property was not in use for commercial purposes was sufficient evidence of that fact, unless the contrary
was proven.241The question of determining property used for commercial
purposes is a significant and complex one that will invariably depend uponan analysis of various factors, as seen in the light of the law of the forum
state,242for example the present and future use of the funds and their
origin.243
In Banamar v. Embassy of the Democratic and Popular Republic of~ l ~ e r i a , ~ ~ "ItalianheSupreme Court reaffirmed the rule that customary international law forbids measures of execution against the property
of foreign states located in the territory of the state seeking to exercise
jurisdiction and used for sovereign purposes, and held that it lacked
jurisdiction to enforce a judgment against a foreign state by ordering
execution against bank accounts standing in the name of that state's
embassy. This approach appears to have been modified in Condor andFilvem v. Minister of ~ u s t i c e ~ before"
the Italian Constitutional Court
in 1992. The Court held that it could no longer be affirmed that there
existed an international customary rule forbidding absolutely coercive
measures against the property of foreign states. In order for immunity
against execution not to apply, it is necessary not only to demonstratethat the activity or transaction concerned was jure gestionis, but also
to show that the property to which the request for execution refers is
not destined to accomplish public functions (jure imperii) of the foreignstate.246
However, the Spanish Constitutional Court in Abbott v. South Africa
held that bank accounts held by foreign states used for the purposesof ordinary diplomatic or consular activity were immune from attachment or execution even where the funds were also used for commercial purposes,'47 while the Austrian Supreme Court held in Leasing WestGmbH v. Algeria that a general bank account of a foreign embassy allocated partlybut not exclusivelyfor diplomatic purposes was immune fromSuch certificate had been issued by the Colombian Ambassador. See below, p. 668, withregard to diplomatic immunities.
242 See the West German Federal Constitutional Court decision in the National Iranian Oil
Co. case, 22 ILM, 1983, p. 1279.
243 See e.g. Eurodif Corporation r. Islamic Republic of Iran 23 ILM, 1984, p. 1062.
244 84 AJIL, 1990, p. 573; 87 ILR, p. 56. See also Libya v. Rossbeton SRL, 87 ILR, p. 63.
'45 101 ILR, p. 394.
246 Ibid., pp. 401-2.
247 113 ILR, pp. 411,423-4.
241

666

I N T E R N A T I O N A L LAW

enforcement proceedings without the consent of the state concerned. Attachment could only take place if the account could be shown to be used
exclusively for private purposes.248

The burden and standard of proof
Since section 1 of the State Immunity Act stipulates that a state is immune
from the jurisdiction of the courts of the UK except as provided in thefollowing sections, it is clear that the burden of proof lies upon the plaintiff to establish that an exception to immunity applies.249
As far as the standard of proof is concerned, the Court of Appeal
in Muclaine Wutson v. Department of Trade und 1ndustry2" held thatwhenever a claim of immunity is made, the court must deal with it as apreliminary issue and on the normal test of balance of pr~babilities.~"'It
would be insufficient to apply the 'good arguable case' test usual in Order
11252 cases with regard to leave to serve.253To have decided otherwise
would have meant that the state might have lost its claim for immunity
upon the more impressionistic 'good arguable case' basis, which inpractice is decided upon affidavit evidence only, and would have been
precluded from pursuing its claim at a later stage since that could well be
construed as submission to the jurisdiction under section 2(3) ofthe State
Immunity Act.
The question of service of process upon a foreign state arose inWestminster City Council v. Government of the Islamic Republic of ran,^^^where Peter Gibson J held that without prior service upon the Iranian
government, the court was unable to deal with the substantive issue before it which concerned the attempt by the Westminster City Council torecover from the Iranian government charges incurred by it in rendering
the Iranian embassy safe after it had been stormed in the famous 1980
siege. In the absence of diplomatic relations between the UK and Iran atthat time and in the absence of Iranian consent, there appeared to be no
way to satisfy the requirement in section 12 of the State Immunity Act
that 'any writ or other document required to be served for instituting
116 ILR, p. 526.

See also Staughton 1in R a p e r v. Department of Trade artd Irlilustry [I9871 BCLC 667.
[I9881 3 WLR 1033, 1103 and 1157; 80 ILR, pp. 49, 118, 179.
'jl This would be done procedurally under Order 12, Rule 8 o f the Rules o f the Supreme
Court, 1991. See also A Company v. Republic ofX87 ILR, pp. 412,417.
'j'Rules of the Supreme Court, 1991.
See e.g. Vitkovice Horni v. Korner [I9511 AC 869.
2'"
[I9861 3 All ER 284.
249

*"

'"

IMMUNITIES FROM TURISDICTION

667

proceedings against a state shall be served by being transmitted throughthe Foreign and Commonwealth Office to the Ministry of Foreign Affairs
ofthe state'. The question also arose in KuwaitAirways Corporation v. Iraqi
Since at the relevant time there was no British diplomatic presence in Baghdad, the necessary documents were lodgedpursuant to Order11, Rule 7 at the Central Office, whence they were sent to the Foreign andCommonwealth Office and thence to the Iraqi Embassy in London with arequest for transmission to Baghdad. The House of Lords held that since
the writ was not forwarded to the Iraqi Ministry of Foreign Affairs in
Baghdad, the writ was not served as required under section 12(1) of the1978 A C ~ . ~ ~ ~Conclusion
Although sovereign immunity is in various domestic statutes proclaimed
as a general principle, subject to wide-ranging exceptions, it is, of course,
itself an exception to the general rule of territorial jurisdiction. The enumeration of non-immunity situations is so long, that the true situationof a rapidly diminishing exception to jurisdiction should be appreciated.
In many instances, it has only been with practice that it has become
apparent how much more extensive the submission to jurisdiction has
become under domestic legislation. In Letelier v. Republic offorexample, section 1605(a)5 providing for foreign state liability for injury,
death and loss of property occurring in the US was used to indict thesecret service of Chile with regard to the murder of a former Chilean
Foreign Minister in Washington. Similarly in Verlinden v. Central Bank of~ i ~ e r i a the, ~ ~Supreme'
Court permitted a Dutch company to sue theCentral Bank of Nigeria in thealthough the Tel-oren"' case may
mark a modification of this approach. The amendment to the Act providing for jurisdiction in cases of state-sponsored terrorism has also beena significant d e ~ e l o p m e n t . ~ ~ '"' [I9951 1 WLR 1147; 103 ILR, p. 340.
[I9951 1 WLR 1156 (per Lord Goff). See also ANInterrzational Bank Plc v. Zambia 118
ILR, p. 602.
488 FSupp 665 ( 1 9 8 0 ) ;63 ILR, p. 378.
'j8 22 ILM, 1983, p. 647; 7 9 ILR, p. 548.
259 Nevertheless, it would appear that the Foreign Sovereign Immunities Act of 1976 does
require some minimum jurisdictional links: see generally International Shoe Co. v.
Washington 326 US 310 ( 1 9 4 5 )and Perez v. TheBahamas482 F.Supp. 1208 ( 1 9 8 0 ) ;63 ILR,
p. 350, cf. State Iminunity Act of 1978.
' 6 0 726 F.2d 774 ( 1 9 8 4 ) ;7 7 ILR, p. 193. See further above, p. 607.
See above, p. 638.
256

"'

668

I N T E R N A T I O N A L LAW

The principle of diplomatic immunity may often be relevant in asovereign immunity case. This is considered in the next section.

Diplomatic law 262
Rules regulating the various aspects of diplomatic relations constitute oneof the earliest expressions of international law. Whenever in history there
has been a group of independent states co-existing, special customs havedeveloped on how the ambassadors and other special representatives ofother states were to be treated.263
Diplomacy as a method of communication between various parties,
including negotiations between recognised agents, is an ancient institution and international legal provisions governing its manifestations are
the result of centuries of state practice. The special privileges and immunities related to diplomatic personnel of various kinds grew up partly as
a consequence of sovereign immunity and the independence and equality of states, and partly as an essential requirement of an international
system. States must negotiate and consult with each other and with international organisations and in order to do so need diplomatic staffs. Since'15'

See e.g. P. Cahier, Le Droit Diplonzatique Contenzporain, Geneva, 1962; M. Hardy, Modern
Diplomatic Law, Manchester, 1968; Do Nasliineilto e Silva, Diplomacy in InternationalLaw, Leiden, 1973; E. Denza, Diplonzutic Law, 2nd edn, Oxford, 1998; L. S. Frey and
IM. L. Frey, The History ofDiplon~aticImmunity,Ohio, 1999; Sato~viGuide to Diplomatic
Practice (ed. P. Gore-Booth), 5th edn, London, 1979; B. Sen, ADiplomat's Handbook oflnternational Law and Practice, 3rd edn, The Hague, 1988; J. Brown, 'Diplomatic Immunity:
State Practice under the Vienna Convention on Diplomatic Relations: 37 ICLQ, 1988,
p. 53; Societe Franqais de Droit International, Aspects Recents du Droit des Relations
Diplomatiqnes, Paris, 1989; G. V. McClanahan, DiplonlaticImmi~nity,London,1989; B. S.
~Murty,The lnternrztional Law ofDiplo~riacy,Dordrecht, 1989; L. Dembinski, The Modern
Laiv ofDiplomacy, Dordrecht, 1990; J.Salmon, Xlan~uelde Droit Diplomatique, Brussels,
1994, and Salmon, 'Immunitks et Actes de la Fonction', AFDI, 1992, p. 313; J. C. Barkel;
The Abuse ofDiplomutic Privileges and Immi~nities,Aldershot, 1996; C. E. MTilson, Diplomatic Privileges and Immunities, Tucson, 1967; h4. Whiteman, Digest oflnternational Law,
TVashington,1970, vol. VII; Third CTS Restatefnerzt ofForeign Relations Law, St Paul, 1987,
pp. 455 ff.; House of Commons Foreign Affairs Committee, The Abuse of Diplolllatic
bnmzulities and Privileges, 1984 and the UK Government Response to the Report, Cmnd
9497, and Menzorandum on Diplolllatic Privileges and lnzmunities in the United Kingdom,
UKMIL, 63 BYIL, 1992, p. 688. See also R. Higgins, 'The Abuse of Diplomatic Privileges
and Immunities: Recent United Kingdom Experience: 79 AIIL, 1985, p. 641, and Higgins,
Problerns and Process, Oxford, 1994, p. 86; A. James, 'Diplomatic Relatioils and Contacts',
62 BYIL, 1991, p. 347; Nguyen Quoc Dinh et al., Droit lrzterrzational Public, p. 739, andOppenheinls International Latv, chapters 10 and 11.
See e.g. G. Mattingley, RetzaissatzceDiplomacy, London, 1955, and D. Elgavish, 'Did Diplomatic Immunity Exist in the Ancient Near East?', 2 Journal of the History of InternationalLaw, 2000, p. 73. See also TtTatts,'Legal Position:

IMMUNITIES FROM TURISDICTION

669

these persons represent their states in various ways, they thus benefit fromthe legal principle of state sovereignty. This is also an issue of practicalconvenience.
Diplomatic relations have traditionally been conducted through themedium of ambassadors264and their staffs, but with the growth of tradeand commercial intercourse the office of consul was established and expanded. The development of speedy communications stimulated the creation of special missions designed to be sent to particular areas for specificpurposes, often with the head of state or government in charge. To someextent, however, the establishment of telephone, telegraph, telex and fax
services has lessened the importance of the traditional diplomatic personnel by strengthening the centralising process. Nevertheless, diplomats
and consuls do retain some useful functions in the collection of information and pursuit of friendly relations, as well as providing a permanent
presence in foreign states, with all that that implies for commercial andeconomic a ~ t i v i t i e s . ~ ~ 'The field of diplomatic immunities is one of the most accepted and uncontroversial of international law topics, as it is in the interest of all states
ultimately to preserve an even tenor of diplomatic relations, although not
all states act in accordance with this. As the International Court noted in
the US Diplomatic and Consular Staffin Tehran case:266
the rules of diplomatic law, in short, constitute a self-contained regime,
which o n the one hand, lays down the receiving state's obligations regarding the facilities, privileges and immunities to be accorded to diplomatic
missions and, o n the other, foresees their possible abuse by members ofthe mission and specifies the means at the disposal of the receiving state tocounter any such abuse.267

The Vienna Convention on Diplomatic Relations, 1961
This treaty, which came into force in 1 9 6 4 , emphasises~~~
the functional
necessity of diplomatic privileges and immunities for the efficient conduct'6"ee,
as to the powers of ambassadors, First Fidelity Bank N A v. Government of Antigz~aand Barbuda Pernlaneilt Mission 877 F.2d 189 (1989); 99 ILR, p. 125.
'65 See generally Sutow's Guide, chapter 1.
ICJReports, 1980, p. 3; 61 ILR, p. 504.
ICJ Reports, 1980, p. 40; 61 ILR, p. 566. See also, affirming that the rdes of diplomatic
law constitute a self-contained regime, the decision of the Germail Federal Constitutional
Court of 10 June 1997, Former Syrian Ambasador to the German DernocraticRepublic 115
ILR, p. 597.
The importance of the Convention was stressed in the Iran case, ICJ Reports, 1980, pp.
330-430; 61 ILR, p. 556. Many of its provisions are incorporated into English law by the
Diplonutic Privileges Act 1964.

'"
'"

'"

670

I N T E R N A T I O N A L LAW

of international relations269as well as pointing to the character of the
diplomatic mission as representing its
It both codified existinglaws and established others.271Questions not expressly regulated by theConvention continue to be governed by the rules of customary international law.27"
There is no right as such under international law to diplomatic relations, and they exist by virtue of mutual
If one state does notwish to enter into diplomatic relations, it is not legally compelled so to do.
Accordingly, the Convention specifies in article 4 that the sending statemust ensure that the consent (or agrtment) of the receiving state has been
given for the proposed head of its mission, and reasons for any refusal ofconsent do not have to be given. Similarly, by article 9 the receiving state
may at any time declare any member of the diplomatic mission persona
izon grata without having to explain its decision, and thus obtain the removal of that person. However, the principle of consent as the basis of
diplomatic relations may be affected by other rules of international law.
For example, the Security Council in resolution 748 (1992), which imposed sanctions upon Libya, decided that 'all states shall: (a) significantly
reduce the number and level of the staff at Libyan diplomatic missions andconsular posts and restrict or control the movement within their territoryof all such staff who remain. . . '.
The main functions of a diplomatic mission are specified in article 3
and revolve around the representation and protection of the interests andnationals of the sending state, as well as the promotion of informationand friendly relations.
Article 13 provides that the head of the mission is deemed to have taken
up his functions in the receiving state upon presentation of credentials.
Heads of mission are divided into three classes by article 14, viz. ambassadors or nuncios accredited to heads of state and other heads of missionof equivalent rank; envoys, ministers and internuncios accredited to heads
See also 767 Third Aventre Associates v. Permanent Mission of the Republic of Zaire to theUnited Nations 988 F.2d 295 (1993); 99 ILR, p. 194.
270 See Yearbook of the ILC, 1958, vol. 11, pp. 94-5. The extraterritorial theory of diplomaticlaw, according to which missions constituted an extension of the territory of the sending
state, was of some historic interest but not of practical use, ibid. See also Rad~vanv.
Radwan [I9731 Fam. 24; 55 ILR, p. 579 and McKeel v. Islarrlic Republic of Iran 722 F.2d
582 (1983); 81 ILR, p. 543. Note that in LTS v. Kostadirlov 734 F.2d 906, 908 (1984); 99
ILR, pp. 103, 107, the term 'mission' in the Convention was defined not as the premises
occupied by diplomats, but as a group of people sent by one state to another.
See e.g. the Iran case, ICJ Reports, 1980, pp. 3,24; 61 ILR, p. 550.
27"rticle
2.
272 Preamble to the Convention.
16'

IMMUNITIES FROM TURISDICTION

671

of state; and chargks d'affaires accredited to ministers of foreign affairs.274
It is customary for a named individual to be in charge of a diplomatic
mission. When, in 1979, Libya designated its embassies as 'People's Bureaux' to be run by revolutionary committees, the UK insisted upon andobtained the nomination of a named person as the head of the mission.2i5
The inviolability of the premises of the mission
In order to facilitate the operations of normal diplomatic activities, article
22 of the Convention specifically declares that the premises of the mission
are inviolable and that agents of the receiving state are not to enter themwithout the consent of the mission. This appears to be an absolute rule2i6
and in the Sun Yat Sen incident in 1896, the Court refused to issue a writ ofhabeas corpus with regard to a Chinese refugee held against his will in the
Chinese legation in on don.^^' Precisely what the legal position would
be in the event of entry without express consent because, for example,of fire-fighting requirements or of danger to persons within that area,
is rather uncertain under customary law, but under the Convention any
justification pleaded by virtue of implied consent would be regarded as. ~ ~ receiving~
state is under a special duty
at best highly c o n t r ~ v e r s i a lTheto protect the mission premises from intrusion or damage or 'impairment of its dignity'.279The US Supreme Court, for example, while making specific reference to article 22 of the Vienna Convention, emphasised27"herules as to heads of missions are a modern restatement of the rules established in
1815 by the European powers: see Denza, Diplomatic Law, p. 87.
275 Comment by Sir Antony Acland, Minutes of Evidence Taken Before the Foreign Affairs
Committee, Report, p. 20. See also DUSPIL, 1979, pp. 571-3.
'7"eee.g. 767 Third Avenue Associates v. Perrnailent Mission of the Republic of Zaire to theUnited Nations 988 F.2d 295 (1993); 99 ILR, p. 194.
'77 A. D. McNair, Inter~zatioilalLaw Opinions, Oxford, 1956, vol. I, p. 85. The issue wasresolved by diplomatic means.
'78 The original draft of the article would have permitted such emergency entry, but thiswas rejected: see Denza, Diplomatic Law, pp. 120 ff. In 1973 an armed search of the
Iraqi Embassy in Pakistan took place and considerable quantities of arms were found.
As a result the Iraqi ambassador and an attache were declared personae non grata, ibid.,
p. 125. As to further examples, see Denza, DipIor7iatic Latv, p. 125. A search by US troopsof the residence of the Nicaraguan ambassador in Panama in 1989 was condemned ina draft Security Council resolution by a large majority, but was vetoed by the US, ibid.
Nevertheless, Denza concludes that, 'In the last resort, however, it cannot be excluded
that entry without the consent of the sending State may be justified in international law
by the need to protect human life: ibid., p. 126.
'7' See e.g. the statement of US President Johnson after a series of demonstrations against
the US Embassy in Moscow in 1964-5,4 ILM, 1965, p. 698.

672

I N T E R N A T I O N A L LAW

in Boos v. Barry that, 'The need to protect diplomats is grounded in
our Nation's important interest in international relations. . . Diplomatic
personnel are essential to conduct the international affairs so crucial to
the well-being of this ati ion.'^^' It was also noted that protecting foreign diplomats in the US ensures that similar protection would be afforded to US diplomats abroad.28' The Supreme Court upheld a Districtof Columbia statute which made it unlawful to congregate within 500
feet of diplomatic premises and refuse to disperse after having been soordered by the police, and stated that, 'the "prohibited quantum of disturbance" is whether normal embassy activities have been or are about tobe
By the same token, the premises of a mission must not be used in a way
which is incompatible with the functions of the mission.28"
In 1979, the US Embassy in Tehran, Iran was taken over by several
hundred demonstrators. Archives and documents were seized and fifty
diplomatic and consular staff were held hostage. In 1980, the International Court declared that, under the 1961 Convention (and the 1963
Convention on Consular Relations):
Iran was placed under the most categorical obligations, as a receiving state,
to take appropriate steps to ensure the protection of the United States
Embassy and Consulates, their staffs, their archives, their means of communication and the free movement of the members of their staffs."'

These were also obligations under general international law.285The
Court in particular stressed the seriousness of Iran's behaviour and theconflict between its conduct and its obligations under 'the whole corpus of the international rules of which diplomatic and consular law is
99 L.Ed.2d 333, 345-6 (1988); 121 ILR, p. 551.
281 Ibid.
99 L.Ed.2d 351. See also Minister ,for Foreign @airs and Trade v. Magno 112 ALR 529(1992-3);101 ILR, p. 202.
283 Article 41(3) of the Vienna Convention.
""he
Iran case, ICJ Reports, 1980, pp. 3,30-1; 61 ILR, p. 556, This the Iranians failed to do,
ICJ Reports, 1980, pp. 31-2. The Court emphasised that such obligations concerning theinviolability of the members of a diplomatic nlission and of the premises, property andarchives of the mission continued even in cases of armed conflict or breach of diplomatic
relations, ibid., p. 40. See also DUSPIL, 1979, pp. 577 ff.; K. Gryzbowski, 'The Regimeof Diplomacy and the Tehran Hostages', 30 ICLQ, 1981, p. 42, and L. Gross, 'The Case
Concerning United States Diplomatic and Consular Staff in Tehran: Phase of Provisional
Measures', 74 AJIL, 1980, p. 395.
"'See e.g. Belgizliil v. Nicod aild Ailother 82 ILR, p. 124.
"O

282

IMMUNITIES FROM TURISDICTION

673

comprised, rules the fundamental character of which the Court musthere again strongly affirm'.286
On 8 May 1999, during the Kosovo campaign, the Chinese Embassyin Belgrade was bombed by the US. The US declared that it had been a
mistake and apologised. In December 1999, the US and China signed an
Agreement providing for compensation to be paid by the former to thelatter of $28m. At the same time, China agreed to pay $2.87m to the US
to settle claims arising out of rioting and attacks on the US Embassy inBeijing, the residence of the US consulate in Chengdu and the consulatein ~ u a n g z h u . ~ ~ ~On 17 April 1984, a peaceful demonstration took place outside the
Libyan Embassy in London. Shots from the Embassy were fired that resulted in the death of a policewoman. After a siege, the Libyans insideleft and the building was searched in the presence of a Saudi Arabian
diplomat. Weapons and other relevant forensic evidence were found.'gs
The issue raised here, in the light of article 45(a) which provides that after
a break in diplomatic relations, 'the receiving state must. . . respect andprotect the premises of the mission', is whether that search was permissible. The UK view is that article 45(a) does not mean that the premises
continue to be i n ~ i o l a b l e 'and
~ ~ this would clearly appear to be correct.
There is a distinction between inviolability under article 22 and respect
and protection under article 45(a).
The suggestion has also been raised that the right of self-defence may
also be applicable in this context. It was used to justify the search of
personnel leaving the Libyan ~ m b a s ands ~ the~ ~possibility~
was notedthat in certain limited circumstances it may be used to justify entry intoan ~ m b a s s y . ~ ~ 'The Irun case, ICT Reports, 1980, p. 42; 61 ILR, p. 568. The Court particularly instanced
articles 22,25,26 and 27 and analogous provisions in the 1963 Consular Relations Convention, ibid.
See DUSPIL, 2000, pp. 421-8. In addition, the US had earlier made a nunll>erof exgrutia
paynlents to the individuals injured and to the families of those killed in the Enlbassy
bombing, ibid., p. 428.
See Foreign Affairs Committee, Report, p. xxvi.
289 Memorandum by the Foreign and Common~vealthOffice, Foreign Affairs Committee,
Report, p. 5.
290 Ibid., p. 9. Such a search was declared essential for the protection of the police, ibid. Notethe reference to self-defence is both to domestic and international law, ibid.
291 See the comments of the Legal Adviser to the FCO, Minutes of Evidence, Foreign Affairs
Committee, Report, p. 28. Of course, entry can be made into the building~viththe consent
"6

674

I N T E R N A T I O N A L LAW

A rather different issue arises where mission premises have been abandoned. The UK enacted the Diplomatic and Consular Premises Act in
1987, under which states wishing to use land as diplomatic or consularpremises are required to obtain the consent of the Secretary of State. Oncesuch consent has been obtained (although this is not necessary in the caseof land which had this status prior to the coming into force of the Act), it
could be subsequentlywithdrawn. The Secretary of State has the power torequire that the title to such land be vested in him where that land has been
lying empty, or without diplomatic occupants, and could cause damage
to pedestrians or neighbouring buildings because of neglect, providingthat he is satisfied that to do so is permissible under international law(section 2). By section 3 of the Act, the Secretary of State is able to sell thepremises, deduct certain expenses and transfer the residue to the person
divested of his interest.
This situation occurred with respect to the Cambodian Embassy in
London, whose personnel closed the building after the Pol Pot takeoverof Cambodia in 1975, handing the keys over to the Foreign Office.292In
1979, the UI< withdrew its recognition of the Cambodian government
after the Vietnamese invasion and since that date had had no dealings
with any authority as the government of that country. Squatters moved
in shortly thereafter. These premises were made subject to section 2 of the~ the Secretary of
Diplomatic and Consular Premises Act in 1 9 8 8 ' ~andState vested the land in himself. This was challenged by the squatters andin R v. Secretary of State for Foreign and Commonwealth Afairs, ex parteS a m ~ 4 e 1 Henry, ~ ~ ~ J held that the Secretary of State had acted correctly
and in accordance with the duty imposed under article 45 of the Vienna
Convention. The Court of Appeal dismissed an appeal,"' holding thatthe relevant section merely required that the Secretary of State be satisfied
that international law permitted such action.'96
of the receiving state, as for example when Iran requested the UK to eject militants who
had taken over their London embassy in 1980.
292 See C. Warbrick, 'Current Developments: 38 ICLQ, 1989,p. 965.
See s. 2 of the Diplomatic and Consular Premises (Cambodia) Order, SI 1988 no. 30.
294 The Tinies, 10 September 1988.
The Tittles, 17 August 1989; 83 ILR, p. 232. Note that in Secretary of State for Foreigr~
arid Commonwealth Affairs v. Tomlin, The Times, 4 December 1990; [I9901 1 All ER 920,
the Court of Appeal held that in this situation, the extended limitation period of thirty
years under s. l 5 ( l ) of and Schedule 1 to the Limitation Act 1980 was applicable and thesquatters could not rely on twelve years' adverse possession.
'96 Note that in the US, embassies temporarily abandoned due to broken relations may besequestered and turned to other uses pending resumption of relations. This has been the'"'"

IMMUNITIES FROM TURISDICTION

675

In Westminster City Council v. Government of the Islamic Republic ofran,^^' the issue concerned the payment of expenses arising out of repairs
to the damaged and abandoned Iranian Embassy in London in 1980. The
council sought to register a land charge, but the question of the immunityof the premises under article 22 of the Vienna Convention was raised.
Although the Court felt that procedurally it was unable to p r ~ c e e d , ~ "reference was made to the substantive issue and it was noted that thepremises had ceased to be diplomatic premises in the circumstances andthus the premises were not 'used' for the purpose of the mission as required by article 22, since that phrase connoted the present tense. The
inviolability of diplomatic premises, however, must not be confused withextraterritoriality. Such premises do not constitute part of the territory of
the sending state.299
Whether a right of diplomatic asylum exists within general international law is doubtful and in principle refugees are to be returned to theauthorities of the receiving state in the absence of treaty or customaryrules to the contrary. The International Court in the Asylum case between
Colombia and peru300emphasised that a decision to grant asylum involves
a derogation from the sovereignty of the receiving state 'and constitutes
an intervention in matters which are exclusively within the competenceof that state. Such a derogation from territorial sovereignty cannot berecognised unless its legal basis is established in each particular case.'
Where treaties exist regarding the grant of asylum, the question will arise
as to the respective competences of the sending and receiving state or thestate granting asylum and the territorial state. While the diplomats of thesending state may provisionally determine whether a refugee meets any
condition laid down for the grant of asylum under an applicable treaty
this would not bind the receiving state, for 'the principles of internationallaw do not recognise any rule of unilateral and definitive qualification by
the state granting asylum'.301It may be that in law a right of asylum willarise for 'urgent and compelling reasons of humanity',302but the natureand scope of this is unclear.
case with regard to Iranian, Cambodian and Vietnamese properties that have been in thepp. 53custody of the Office of Foreign Missions: see McClanahan, Diplomatic In~rnt~nity,and 110. See also the US Foreign Missions Act 1982.
719861 3 All ER 284; 108 ILR, p. 557.
lY8
See above, p. 666.
2yy See e.g. Persinger v. Islamic Republic o f Iran 729 F.2d 835 (1984). See also Swiss Federal
Prosec~ltorv. Krtlszyk 102 ILR, p. 176.
300 ICJ Reports, 1950, pp. 266, 274-5.
jO' Ibid., p. 274.
'02 Oppenheimi International Law, p. 1084.

'"

I N T E R N A T I O N A L LAW

The diplomatic bag
Article 27 provides that the receiving state shall permit and protect freecommunication on behalf of the mission for all official purposes. Such
official communication is inviolable and may include the use of diplomatic
couriers and messages in code and in cipher, although the consent of thereceiving state is required for a wireless transmitter.303
Article 27(3) and (4) deals with the diplomatic bag,304and provides thatit shall not be opened or detained3'' and that the packages constituting
the diplomatic bag 'must bear visible external marks of their character andmay contain only diplomatic documents or articles intended for official
use'.306The need for a balance in this area is manifest. On the one hand,missions require a confidential means of communication, while on theother the need to guard against abuse is clear. Article 27, however, lays
the emphasis upon the former.307This is provided that article 27(4) iscomplied with. In the Dikko incident on 5 July 1984, a former Nigerianminister was kidnapped in London and placed in a crate to be flown toNigeria. The crate was opened at Stansted Airport, although accompanied
by a person claiming diplomatic status. The crate308did not contain an
official seal and was thus clearly not a diplomatic bag.'09 When, in March
2000, diplomatic baggage destined for the British High Commission in
Harare was detained and opened by the Zimbabwe authorities, the UK
There was a division of opinion at the Vienna Conference between the developed anddeveloping states over this issue. The former felt that the right to instal and use a wirelessdid not require consent: see Denza, Diplorr~aticLaw, pp. 175-7.
jo4 Definedin article 3(2) ofthe Draft Articles on the Diplomatic Courier and the DiplomaticBag adopted by the International Law Commission in 1989 as 'the packages containing
official correspondence, and documents or articles intended exclusively for official use,
whether accompanied by diplomatic courier or not, which are used for the official communication referred to in article 1 and which bear visible external marks oftheir character'as a diplomatic bag: see Yearbook of the ILC, 1989, vol. 11, part 2, p. 15.
O%rticle 27(3).
Article 27(4).
This marked a shift from earlier practice: see Yearbook of the ILC, 1989, vol. 11, part 2,
p. 15.
'08 An accompanying crate contained persons allegedly part of the kidnapping operation.
See Foreign Affairs Committee, Report, pp. xxxiii-xxxiv. Note also the incident in 1964
when an Israeli was found bound and drugged in a crate marked 'diplomatic mail' atRome Airport. As a result, the Italians declared one Egyptian official at the Embassy
persona noti grata and expelled two others, Keesingi Contenlporary Archives, p. 20580. In
1980, a crate bound for the Moroccan Embassy in London split open at Harwich to reveal$500,000 worth of drugs, The Times, 13 June 1980. In July 1984, a lorry belonging to the
USSR was opened for inspection by West Gerinan authorities on the grounds that a lorry
itself could not be a bag. The crates inside the lorry were accepted as diplomatic bags andnot opened, Foreign Affairs Committee, Report, p. xiii, note 48.
jn3

"'

"'

"'

IMMUNITIES FROM TURISDICTION

677

government protested vigorously and announced the withdrawal of its
High Commissioner for consultation^.^^^
In view of suspicions of abuse, the question has arisen as to whether
electronic screening, not involving opening or detention, of the diplomatic bag is legitimate. The UK appears to take the view that electronic
screening of this kind would be permissible, although it claims not to havecarried out such activities, but other states do not accept this.jl' It is to be
noted that after the Libyan Embassy siege in April 1984, the diplomaticbags leaving the building were not searched.312However, Libya had entered a reservation to the Vienna Convention, reserving its right to open
a diplomatic bag in the presence of an official representative of the diplomatic mission concerned. In the absence of permission by the authoritiesof the sending state, the diplomatic bag was to be returned to its placeof origin. Kuwait and Saudi Arabia made similar reservations which were
not objected to.313This is to be contrasted with a Bahraini reservation
to article 2 7 ( 3 ) which would have permitted the opening of diplomaticbags in certain circumstance^.^^^ The Libyan reservation could have beenrelied upon by the UI< in these conditions.
It is also interesting to note that after the Dikko incident, the UK Foreign
Minister stated that the crates concerned were opened because of thesuspicion of human contents. Whether the crates constituted diplomaticbags or not was a relevant consideration with regard to a right to search,
but:
the advice given and the advice which would have been given had the crate
constituted a diplomatic bag took fully into account the overriding duty topreserve and protect human life.315

This appears to point to an implied exception to article 2 7 ( 3 ) in theinterests of humanity. It is to be welcomed, provided, of course, it isapplied solely and strictly in these terms.
See UKMIL, 71 BYIL, 2000, pp. 586-7.
See the Legal Adviser, FCO, Foreign Affairs Committee, Report, p. 23. See also 985 HC
Deb., col. 1219,2 June 1980, and Cmnd 9497. See further Yearbook o f t h e ILC, 1988, vol.
11, part 1, 17. 157, and Denza, Diplomatic Law, 1317. 194 ff.
Foreign Affairs Committee, Report, p. xxx.
'I3 Except by France: see Denza, Diplomatic Law, 17. 188. The UK did not object and regarded the reservations in fact as reflective of customary law prior to the Convention,
Memorandum of the FCO, Foreign Affairs Committee, Report, p. 4.
"4 This was objected to, Foreign Affairs Committee, Report, p. 4, and see Denza, DiplomaticLaw, p. 188.
See Foreign Affairs Committee, Report, p. 50.
'lo

'I1

"'

"'

678

I N T E R N A T I O N A L LAW

The issue of the diplomatic bag has been considered by the International Law Commission, in the context of article 27 and analogous provisions in the 1963 Consular Relations Convention, the 1969 Convention
on Special Missions and the 1975 Convention on the Representation ofStates in their Relations with International Organisations. Article 28 of
the Draft Articles on the Diplomatic Courier and the Diplomatic Bag,as finally adopted by the International Law Commission in 1989, provides that the diplomatic bag shall be inviolable wherever it may be. It
is not to be opened or detained and 'shall be exempt from examination directly or through electronic or other technical device'. However,in the case of the consular bag, it is noted that if the competent authorities of the receiving or transit state have serious reason to believethat the bag contains something other than official correspondence anddocuments or articles intended exclusively for official use, they may request that the bag be opened in their presence by an authorised representative of the sending state. If this request is refused by the authoritiesof the sending state, the bag is to be returned to its place of origin.316
It was thought that this preserved existing law. Certainly, in so far as
the consular bag is concerned, the provisions of article 35(3) of theVienna Convention on Consular Relations are reproduced, but the stipulation of exemption from electronic or other technical examination does
not appear in the Vienna Convention on Diplomatic Relations and theview of the Commission that this is mere clarification317 is controver~ial.~l'
As far as the diplomatic courier is concerned, that is, a person accompanying a diplomatic bag, the Draft Articles provide for a regimeof privileges, immunities and inviolability that is akin to that governing
diplomats. He is to enjoy personal inviolability and is not liable to any
form of arrest or detention (draft article lo), his temporary accommodation is inviolable (draft article 17), and he will benefit from immunityfrom the criminal and civil jurisdiction of the receiving or transit state inrespect of all acts performed in the exercise of his functions (draft article"'Draft article 28(2). See Yearbook of the ILC, 1989, vol. 11, part 2, pp. 42-3. See also
'I7"'

S. McCaffrey, 'The Forty-First Session of the International Law Commission', 83 AJIL,
1989, p. 937.
Yearbook of the ILC, 1989, vol. 11, part 2, p. 43.
See e.g. Yearbook of the ILC, 1980, vol. 11, pp. 231 ff.; ibid., 1981, vol. 11, pp. 151 ff. andibid., 1985, ~ o l11,
. part 2, pp. 30 ff. See also A138110 (1983) and the Memorandum by
Sir Ian Sinclair, member of the ILC, dealing with the 1984 session on this issue, Foreign
Affairs Committee, Report, pp. 79 ff.

IMMUNITIES FROM TURISDICTION

679

18). In general, his privileges and immunities last from the moment heenters the territory of the receiving or transit state until he leaves suchstate (draft article 21).319
Diplomatic immunities - property
Under article 22 of the Vienna Convention, the premises of the mission~ ~ together with their furnishings and other property
are i n ~ i o l a b l e 'and,
thereon and the means oftransport, are immune from search, requisition,
attachment or execution. By article 23, a general exception from taxationin respect of the mission premises is posited. The Court in the Philippine
Embassy case explained that, in the light of customary and treaty law,
'property used by the sending state for the performance of its diplomaticfunctions in any event enjoys immunity even if it does not fall within thematerial or spatial scope' of article 22."" It should also be noted that theHouse of Lords in Alcom Ltd v. Republic of ~ o l o m b i 322
a held that under
the State Immunity Act 1978 a current account at a commercial bank in
the name of a diplomatic mission would be immune unless the plaintiff
could show that it had been earmarked by the foreign state solely for thesettlement of liabilities incurred in commercial transactions. An accountused to meet the day-to-day running expenses of a diplomatic mission
would therefore be immune. This approach was also based upon the obligation contained in article 25 of the Vienna Convention on Diplomatic
Relations, which provided that the receiving state 'shall accord full facilities for the performance of the functions of the mission'. The House ofLords noted that the negative formulation of this principle meant thatneither the executive nor the legal branch of government in the receiving
state must act in such manner as to obstruct the mission in carrying out
its function^.'^"
Section 16(l)b of the State Immunity Act provides, however, that theexemption from immunity in article 6 relating to proceedings involving
immovable property in the UK did not extend to proceedings concerning'a state's title to or its possession of property used for the purposes of a"'See e.g. McClanahan, Diplolnatic Inzrnunity, p. 64, and Yearbook of the ILC, 1985, vol. 11,
part 2, pp. 36 ff.

"' By article 30(1) of the Convention, the private residence of a diplomatic agent shall enjoy
the same inviolability and protection as the premises of the mission.

"' See UN, Materials, pp. 297, 317; 65 ILR, pp. 146, 187.
3"

[I9841 2 All ER 6; 74 ILR, p. 180.

323

[I9841 2 All ER 9; 74 ILR, p. 182.

680

I N T E R N A T I O N A L LAW

diplomatic mission'. It was held in Intpro Properties (UK) Ltd v. ~auvel324
by the Court of Appeal that the private residence of a diplomatic agent,even where used for embassy social functions from time to time, did
not constitute use for the purposes of a diplomatic mission and thatin any event the proceedings did not concern the French government's
title to or possession of the premises, but were merely for damages forbreach of a covenant in a lease. Accordingly, there was no immunity under
section 16.
It is to be noted that by article 24 of the Vienna Convention, the archives
and documents of the mission are inviolable at any time and wherever
they may be.325Although 'archives and documents' are not defined in
the Convention, article l(1)k of the Vienna Convention on Consular
Relations provides that the term 'consular archives' includes 'all thepapers, documents, correspondence, books, films, tapes and registers of
the consular post together with the ciphers and codes, the card-indexes
and any article of furniture intended for their protection or safekeeping'.
The term as used in the Diplomatic Relations Convention cannot be lessthan
The question of the scope of article 24 was discussed by the Houseof Lords in Shearson Lehman v, Maclaine Watson (No. 2),327which concerned the intervention by the International Tin Council in a case on the
grounds that certain documents it was proposed to adduce in evidence
were inadmissible. This argument was made in the context of article 7of the International Tin Council (Immunities and Privileges) Order 1972
which stipulates that the ITC should have the 'like inviolability of official
archives as . . . is accorded in respect of the official archives of a diplomatic
mission'. Lord Bridge interpreted the phrase 'archives and documents ofthe mission' in article 24 as referring to the archives and documents 'belonging to or held by the mission'.328Such protection was not confined to
executive or judicial action by the host state, but would cover, for example,
the situation where documents were put into circulation by virtue of theftor other improper means.329''V 19831 2 All ER 495; 64 ILR, p. 384.
This goes beyondprevious customary law: see e.g. Rosev. R [I9471 3 DLR 618. See also
Renchard v. Hzlnlphreys & Harding I I K .381 F.Supp. 382 (1974) and the Iran case, ICJ
Reports, 1980, pp. 3, 36.
See e.g. Denza, Diplomatic Law, p. 162.
[I9881 1 WLR 16; 77 ILR, p. 145.
328 [l988] 1 WLR24; 77 ILR, p. 150.
""1988]
1 WLR 27; 77 ILR, p. 154. See also Fayed v. Al-Tajir 119871 2 All ER 396.

325

'"
'"

IMMUNITIES FROM TURISDICTION

Diplomatic immunities - personal
The person of a diplomatic agent330is inviolable under article 29 of theVienna Convention and he may not be detained or arrested.331This principle is the most fundamental rule of diplomatic law and is the oldest
established rule of diplomatic law.""n resolution 53/97 of January 1999,
for example, the UN General Assembly strongly condemned acts of violence against diplomatic and consular missions and representative^,^^^
while the Security Council issued a presidential statement, condemning. ~ ~ ~recognise
the murder of nine Iranian diplomats in ~ f g h a n i s t a nStatesthat the protection of diplomats is a mutual interest founded on functional
requirements and reciprocity.335The receiving state is under an obligation
to 'take all appropriate steps' to prevent any attack on the person, freedom
or dignity of diplomatic agents. After a period of kidnappings of diplomats, the UN Convention on the Prevention and Punishment of Crimes
against Internationally Protected Persons, Including Diplomatic Agentswas adopted in 1973. This provides that states parties must make attacks
upon such persons a crime in internal law with appropriate penalties andtake such measures as may be necessary to establish jurisdiction over thesecrimes. States parties are obliged to extradite or prosecute 0ffende1-s.~~~The most blatant example of the breach ofthe obligation to protect diplomats was the holding ofthe US diplomats as hostages in Iran in 1979-so.337
However, in exceptional cases, a diplomat may be arrested or detained on
the basis of self-defence or in the interests of protecting human life.338"'Defined in article l(e) as the head of the mission or a member of the divlomatic staff ofthe mission. See above, p. 655, with regard to head of state immunities. See also e.g. US
v. Noriega 746 F.Supp. 1506, 1523-5; 99 ILR, pp. 145, 165-7.
Note that by article 26 the receiving state is to ensure to all members of the mission
freedom oflnovement and travel in its territory, subject to laws and regulations concerningprohibited zones or zones regulated for reasons of natiollal security.
See Denza, Diplomrttic Laiv, p. 210.
See also resolution 421154 and Secretary-General's Reports AIINFl52lh and Add.1 andA1531276 and Corr.1.
""~16573(15 Septemher 1998). See also the statement of the UN Secretary-General,
SGlSMl6704 (14 September 1998).
See e.g. the US Supreme Court in Boos v. Barry 99 L Ed 2d 333,346 (1988); 121 ILR, pp.
499, 556.
" 6 See articles 2, 3, 6 and 7. Such crimes by article 8 are deemed to be extraditable offencesin any extradition treaty between states parties. See Duffv. R 119791 28 ALR 663; 73 ILR,
p. 678.
ICJ Reports, 1980, pp. 3, 32, 35-7; 61 ILR, p. 530.
ICJ Reports, 1980, p. 40. See also Denza, Diplomatic Law, p. 219.

"'

"'

"'
"'

'"
"*

682

I N T E R N A T I O N A L LAW

Article 30(1) provides for the inviolability of the private residence339
of a diplomatic agent, while article 30(2) provides that his papers, correspondence and property3" are inviolable. Section 4 of the Diplomatic
Privileges Act 1964 stipulates that where a question arises as to whether
a person is or is not entitled to any privilege or immunity under the Act,
which incorporates many of the provisions of the Vienna Convention, acertificate issued by or under the authority of the Secretary of State stating
any fact relating to that question shall be conclusive evidence of that fact.
As far as criminal jurisdiction is concerned, diplomatic agents enjoy
complete immunity from the legal system of the receiving state,'41 although there is no immunity from the jurisdiction of the sending state.342
This provision noted in article 3 l ( 1 ) reflects the accepted position undercustomary law. The only remedy the host state has in the face of offences
alleged to have been committed by a diplomat is to declare him persona
non grata under article 9.343Specific problems have arisen with regard to
motoring offences.344"sdistinct from the premises of the mission. Such residence might be private leasedor leased by the sending state for use as such residential premises and may indeed be
temporary only. Temporary absence would not lead to a loss of immunity, but permanent
absence would: see e.g. Agbor v. Metropolitan Police Coi?zrnissioner 119691 2 All ER 707
and Denza, Diplo~naticLaw, p. 222.Section 9 of the Criminal Law Act 1977 makes it acriminal offence knowingly to trespass on any premises which are the private residenceof a diplomatic agent.
Except that this is limited by article 3 l(3):see below, p. 683.Possession alone of property
p. 227.
would be sufficient, it appears, to attract inviolability: see Denza, Diplornutic LLZIII,
See e.g. Dickinsorl v. Del Solar [I93011 KB 376;5 AD, p. 299;the Iranian Hostages case,
ICJ Reports, 1980,pp. 3,37;61 ILR, p. 530 and Skeen v. Federative Rep~blicofBrazil 566
F. Supp. 1414(1983); 121 ILR, p. 481.See also Denza, Diploir~aticLaw, pp. 229 ff.
j4' Article 3 l(4).
'4' See e.g, the incident in Washington DC in 1999,when an attache of the R~~ssian
Embassy
was declaredpersona non grata for suspected 'bugging' of the State Department, 94 AJIL,
2000,p. 534.
4 4 However, the US has tackled the problem of unpaid parking fines by adopting Section 574
of the Foreign Operations, Export Financing and Related Programs Appropriations Act
1994,under which 110 per cent of unpaid parking fines and penalties must be withheld
from that state's foreign aid. In addition, the State Department announced in December
1993 that registration renewal of vehicles with unpaid or unadjudicated parking tickets
more than one year old would be withheld, thus rendering the use of such vehicles illegal
in the US: see 'Contemporary Practice of the United States Relating to International Law',
88 AIIL, 1994,p. 312.It is also required under the US Diplomatic Relations Act 1978
that diplomatic missions, their members and families hold liability insurance and civil
suits against insurers are permitted. Note that the UK has stated that persistent failure by
diplomats to respect parking regulations and to pay fixed penalty parking notices 'will
call into question their continued acceptability as members of diplomatic missions in
London', UKMIL, 63 BYIL, 1992,p.700.

'"'"

IMMUNITIES FROM TURISDICTION

6 83

Article 31 (1) also specifies that diplomats345are immune from the civil
and administrative jurisdiction of the state in which they are serving,
except in three cases:346first, where the action relates to private immovable property situated within the host state (unless held for mission purp o s e ~ )secondly,; ~ ~ ~ in litigation relating to succession matters in which
the diplomat is involved as a private person (for example as an executor orheir); and, finally, with respect to unofficial professional or commercial
activity engaged in by the agent.348In a document issued by the Foreign
Office in 1987, entitled Men?orandum on Diplomatic Privileges and Immunities in the United ~ i n ~ d o itmwas, ~noted~ ~ that a serious view was
taken of any reliance on diplomatic immunity from civil jurisdiction toevade a legal obligation and that such conduct could call into question thecontinued acceptability in the UK of a particular diplomat.350By article
3 1(2),a diplomat cannot be obliged to give evidence as a witness, while
by article 31(3), no measures of execution may be taken against such aperson except in the cases referred to in article 31(l)a, b and c and provided that the measures concerned can be taken without infringing theinviolability of his person or of his residence. Diplomatic agents are generally exempt from the social security provisions in force in the receiving
state,351from all dues and taxes, personal or real, regional or municipal
except for indirect taxes,352from personal and public services3j3and from'" Note that a diplomat who is a national or permanent resident of the receiving state
will only enjoy immunity from jurisdiction and inviolability in respect of official acts
performed in the exercise of his functions, article 38.
34%rticle 3 1 ( 1 ) a ,b and c. Note that there is no imnlunity from the jurisdiction of the sending
state, article 3 1 ( 4 ) .
j4' See Intpro Properties ( U K ) L f d v. Sauvel[1983]2 All ER 495; 64 ILR, p. 384. In the Deputy
Registrar case, 94 ILR, pp. 308, 311, it was held that article 3 1 ( l ) a was declaratory ofcustomary international law. In Hildebrand v. Champagne 82 ILR, p. 12 1, it was held that
this provision did not cover the situation where a claim was made for payment for charges
under a lease. See also Largueche v. Tancredi Feni 101 ILR, p. 377 and De Andrade v. De
Andrade 118 ILR, pp. 299,306-7.
245 See Portugal v. Gotzcalves 82 ILR, p. 115. This exception does not include ordinary contracts incidental to life in the receiving state, such as a contract for domestic services: see
Tabion v. Mufti 73 F.3d 535 and Denza, Diplottzatic Law, p. 250. See also De Andrade v.
De Aridrade 118 ILR, pp.299,306-7, noting that the purchase by a diplomat of the homeunit as an investment was not a commercial activity within the meaning of the provision.
'49 See UKMIL, 58 BYIL, 1987,p. 549.
Annex F, reproducing a memorandum dated February 1985, ibid., p. 558. See Annex F of
the 1992 Memorandum, UKMIL, 63 BYIL, 1992, p. 698.
Article 33.
35' Article 34 and see subsections b to g for certain other exceptions.
Article 35.

'"
'"
'"

684

I N T E R N A T I O N A L LAW

customs duties and i n ~ p e c t i o n . ~The' ~ personal baggage of a diplomat is
exempt from inspection unless there are serious grounds for presumingthat it contains articles not covered by the specified exemptions in article
36(1). Inspections can only take place in the presence of the diplomat or
his authorised r e p r e ~ e n t a t i v e . ~ ~ ~Article 37 provides that the members of the family of a diplomatic agent
forming part of his household3" shall enjoy the privileges and immunities
specified in articles 29 to 36 if not nationals of the receiving ~ t a t e . ~In"
UK practice, members of the family include spouses and minor children(i.e. under the age of eighteen); children over eighteen not in permanent
paid employment (such as students); persons fulfilling the social duties ofhostess to the diplomatic agent; and the parent of a diplomat living withhim and not engaged in paid permanent e r n p l ~ y r n e n t . ~ ' ~Members of the administrative and technical staff (and their households), if not nationals or permanent residents of the receiving state, may
similarly benefit from articles 29-35,35%xcept that the article 3 l ( 1 ) immunities do not extend beyond acts performed in the course of theirduties, while members of the service staff) who are not nationals or permanent residents of the receiving state, benefit from immunity regarding
acts performed in the course of official duties.360
Immunities and privileges start from the moment the person enters
the territory of the receiving state on proceeding to take up his post or,
if already in the territory, from the moment of official notification under,~~~article 39.361In R v. Governor ofPentonville Prison, exparte T e ~ aLord
Parker noted that it was fundamental to the claiming of diplomatic immunity that the diplomatic agent 'should have been in some form acceptedor received by this country'.363This view was carefully interpreted by the~ r t i c l e36(1).
'5'Article 36(2).
See Brown, 'Diplomatic Immunity', pp. 63-6, and Denza, Diplomatic Law, pp. 321 ff.
3'7 The rationale behind this is to ensure the diplomat's independence and ability to function
free from harassment: see Denza, Diploinatic Law, pp. 322-3.
"8 Ibid., pp. 323-4. See, for the slightly different US practice, ibid., p. 324. The term 'spouse'may be interpreted to include more than one wife in a polygamous marriage forming
part of the household of the diplomat and may include a partner not being married tothe diplomat, ibid., pp. 324-5.
""heprivileges specified in article 36(1) in relation to exemption from custon~sduties andtaxes apply only to articles imported at the time of first installation.
'60 Customary law prior to the Vienna Conventioil was most unclear on iminuilities of suchjunior diplomatic personnel and it was recognised that these provisions in article 37
constituted a development in such rules: see e.g. Denza, Diplomatic Law, p. 328 andYearbook of the ILC, 1958, vol. 11, pp. 101-2. See also S v. bzdia 82 ILR, p. 13.
'62 [I9711 2 QB 274; 52 ILR, p. 368.
See also article 10.
z6"1971] 2 QB 282; 52 ILR, p. 373.
3'4

'j6

IMMUNITIES FROM TURISDICTION

685

Court of Appeal in R v. Secretary of State for the Home Department, exparte ~ a g g ina the~ ~light~ of the facts of the former case so that, as Parker
LJ held, if a person already in the country is employed as a secretary, forexample, at an embassy, nothing more than notification is required before
that person would be entitled to immunities. While it had been held in
R v. Lambeth Justices, ex purte Yusufu ".'that article 39, in the words of
Watkins LJ, provided 'at most some temporary immunity between entry
and notification to a person who is without a diplomat', the court in Bagga
disagreed strongly.366Immunity clearly did not depend upon notification
and acceptance,367but under article 39 commenced upon entry. Article 40
provides for immunity where the person is in the territory in transit between his home state and a third state to which he has been ~ o s t e d . ~ ~ ~Where, however, a diplomat is in a state which is neither the receiving state
nor a state of transit between his state and the receiving state, there will
be no immunity.369Immunities and privileges normally cease when the
person leaves the country or on expiry of a reasonable period in which to
do so.370However, by article 39(2) there would be continuing- immunity
with regard to those acts that were performed in the exercise of his functions as a member of the mission. It follows from this formulation that
immunity would not continue for a person leaving the receiving state forany act which was performed outside the exercise of his functions as amember of a diplomatic mission even though he was immune from prosecution at the time. This was the view taken by the US Department of State
with regard to an incident where the ambassador of Papua New Guinea
was responsible for a serious automobile accident involving damage tofive cars and injuries to two persons."' The ambassador was withdrawn
from the US and assurances sought by Papua New Guinea that any criminal investigation of the incident or indictment of the former ambassador
under US domestic law would be quashed were rejected. The US refusedto accept the view that international law precluded the prosecution of
the former diplomat for non-official acts committed during his period of
3"
'66
3"

'"

'"
"O
"l

419911 1 QB 485; 88 ILR, p. 404.
3"
[I9851 Crim. LR 510; 88 ILR, p. 323.
[1991] 1 QB 485,498; 88 ILR, pp. 404,412.
[I9911 1 QB 499; 88 ILR, p. 413, 'save possibly in the case of a head of mission or otherperson of diplomatic rank: ibid.
See Brown, 'Diplomatic Immunity', p. 59, and Bergluun v. de Sieyks 170 F.2d 360 (1948).
See also R v. Govel-nor ofPeiztonville Prison, exparte Teja [1971] 2 QB 274; 52 ILR, p. 368.
Note that such immunity only applies to members ofhis family ifthey were accompanying
him or travelling separately to join him or return to their country, Vafudar 82 ILR, p. 97.
See e.g. Public Prosecutor v. JBC 94 ILR, p. 339.
Article 39, and see Shaw v. Shaw [I9791 3 All ER 1; 78 ILR, p. 483.
See 81 AJIL, 1987, p. 937.

686

I N T E R N A T I O N A L LAW

a ~ c r e d i t a t i o nIn. ~ Propend~~
Finance v. Sing, the Court took a broad viewof diplomatic functions, including within this term police liaison functions so that immunity continued under article 39(2).37'
In the Former Syrian Ambassador to the GDR case, the German Federal
Constitutional Court held that article 39(2) covered the situation where
the ambassador in question was accused of complicity in murder by allowing explosives to be transferred from his embassy to a terrorist group.
He was held to have acted in the exercise of his official functions. It wasargued that diplomatic immunity from criminal proceedings knew of no
exception for particularly serious crimes, the only resort being to declare
him persona norz grata.374The Court, in perhaps a controversial statement, noted that article 39(2), while binding on the receiving state, was
not binding on third states.375Accordingly the continuing immunity of
the former ambassador to the German Democratic Republic under article
39(2) was not binding upon the Federal Republic of Germany.
Although a state under section 4 of the State Immunity Act of 1978 is
subject to the local jurisdiction with respect to contracts of employment
made or wholly or partly to be performed in the UK, section 16(l)a provides that this is not to apply to proceedings concerning the employmentof the members of a mission within the meaning of the Vienna Conent ti on^'^ and this was reaffirmed in Sengupta v. Republic of ~ n d i a , ~ "a case concerning a clerk employed at the Indian High Commission in

ond don."^" See the Tabatabai case, 80 ILR, p. 388; L'S v. Guinand 688 F.Supp. 774 (1988); 99 ILR,
p. 117; Ernpson v. Smith [I9651 2 All ER 881; 41 ILR, p. 407 and Shaiv Y. Shaw [I9791 3
All ER 1; 78 ILR, p. 483. See also Y. Dinstein, 'Diplomatic Immunity from Jurisdiction
Ratione Materiae', 15 ICLQ, 1966, p. 76.
"' 111 ILR, pp. 611, 659-61. See also Re P (No. 2) [I9981 1 FLR 1027; 114 ILR, p. 485.
"4 121 ILR, pp. 595,607-8.
'"bid., pp. 610-12. See B. Fassbender, 'S v. Berlin Court of Appeal and District Court ofBerlin-Tiergarten', 92 AJIL, 1998, pp. 74, 78.
276 Or to members of a consular post within the meaning of the 1963 Consular Relations
Convention enacted by the Consular Relations Act of 1968.
" 7 64 ILR, p. 352. See further above, p. 646.
Diplomatic agents are also granted exemptions from certain taxes and customs duties.
However, this does not apply to indirect taxes normally incorporated in the price paid;~teproperty in the receiving state unless held on behalf of thetaxes on p r i ~ ~immovablesending state for purposes of the mission; various estate, succession or inheritance duties;
taxes on private income havingits source in the receiringstate; charges for specificservices,and various registration, court and record fees with regard to immovable property otherthan mission premises: see article 34 oftheVienna Convention. See also UKMemorandum,
p. 693.

"'

IMMUNITIES FROM TURISDICTION

687

Waiver of immunity
By article 32 of the 1961 Vienna Convention, the sending state379may
waive the immunity from jurisdiction of diplomatic agents and others
possessing immunity under the Convention. Such waiver must be express."' Where a person with immunity initiates proceedings, he cannot
claim immunity in respect of any counter-claim directly connected withthe principal claim.381Waiver of immunity from jurisdiction in respectof civil or administrative proceedings is not to be taken to imply waiverfrom immunity in respect of the execution of the judgment, for which aseparate waiver is necessary.
In general, waiver of immunity is unusual, especially in criminalcase^."^ In a memorandum entitled Department of State Guidance for
Law Enforcement Officers With Regard to Personal Rights and Immunities
of Foreign Diplomatic and Consular personnel 383 the point is made thatwaiver of immunity does not 'belong' to the individual concerned, but isfor the benefit of the sending state. While waiver of immunity in the face ofcriminal charges is not common, 'it is routinely sought and occasionallygranted'. However, Zambia speedily waived the immunity of an official atits London embassy suspected of drugs offences in 1985."'"In Fayed v. ~ l - ~ a j i r the; ~ ~Court'of Appeal referred to an apparent
waiver of immunity by an ambassador made in pleadings by way of defence. Kerr LJ correctly noted that both under international and English
law, immunity was the right of the sending state and that therefore 'only
the sovereign can waive the immunity of its diplomatic representatives.
They cannot do so them~elves.'~'~
It was also pointed out that the defendant's defence filed in the proceedings brought against him was not anappropriate vehicle for waiver of immunity by a state.387In A Company
v. Republic of x , Saville~ ~ J ~noted that whether or not there was a power
See Denza, Diplomatic Law, p. 184.
See e.g. Public Prosecutor v. Orhan Olruez 87 ILR, p. 212.
j8' See e.g. High Conlrnissioner for India v. Ghosh [I9601 1 Q B 134; 28 ILR, p. 150.
ja2 See McClanahan, Diplomatic Immunity, 17. 137, citing in addition an incident where thehusband of an official of the US Embassy in London was suspected of gross indecency
with a minor, where immunity was not waived, but the person concerned was returnedto the US.
jS3 Reproduced in 27 ILM, 1988, pp. 1617, 1633.
'8%cClanahan, Diplomatic Irnrnunity, pp. 156-7.
[I9871 2 All ER 396.
386 Ibid., p. 41 1.
'87 Ibid., pp, 408 (Mustill Lr) and 411-12 (Kerr Lr).
388 [1990] 2 LL. R 520, 524; 87 ILR, pp. 412,416, citing Kahan v. Pakixtan Federation [I9511
2 KB 1003; 18 ILR, p. 210.
"

688

I N T E R N A T I O N A L LAW

to waive article 22 immunities (and he was unconvinced that there existed such a power), no mere inter partes agreement could bind the state
to such a waiver, but only an undertaking or consent given to the Court
itself at the time when the Court is asked to exercise jurisdiction over orin respect of the subject matter of the immunities. In view of the principlethat immunities adhere to the state and not the individual concerned,
such waiver must be express and performed clearly by the state as such.

Consular privileges and immunities: the Vienna Convention on
Consular Relations, 1 9633s9
Consuls represent their state in many administrative ways, for instance,by issuing visas and passports and generally promoting the commercial
interests of their state. They have a particular role in assisting nationals in
distress with regard to, for example, finding lawyers, visiting prisons andcontacting local authorities, but they are unable to intervene in the judicial
process or internal affairs of the receiving state or give legal advice orinvestigate a crimee3" They are based not only in the capitals of receiving
states, but also in the more important provincial cities. However, theirpolitical functions are few and they are accordingly not permitted the same
degree of immunity from jurisdiction as diplomatic agents.391Consuls
must possess a commission from the sending state and the authorisation(exequatur)of a receiving state.392They are entitled to the same exemption
from taxes and customs duties as diplomats.
Article 31 emphasises that consular premises are inviolable and may not
be entered by the authorities of the receiving state without consent. Like
diplomatic premises, they must be protected against intrusion or impairment of dignity,393and similar immunities exist with regard to archives
See e.g. L. T. Lee, Consular Latv and Practice, 2nd edn, Durham, 1991, and Lee, Vienna
Convention on Consular Relations, Durham, 1966; M. A. Ahmad, L'lnstitution Coilsulaireet le Droit International, Paris, 1973, and Satow's Guide, book 111. See also Nguyen Quoc
Dinh et al., Droit International Public, p. 757; Oppenheinl's International Law, pp. 1142 ff.,
and Third L'S Restatement of Foreign Relations Law, pp. 474 ff. The International Courtin the Iran case stated that this Convention codified the law o n consular relations, ICJ
Reports, 1980, pp. 3,24; 61 ILR, pp. 504, 550. See also the Consular Relations Act 1968.
" "See e.g. the UK Foreign Office leaflet entitled 'British Consular Services Abroad' quoted
in UKMIL, 70 BYIL, 1999, p. 530, and see also Exparte Ferhut Butt 116 ILR, pp. 607,618.
See further above, p. 655, with regard to employment and sovereign immunity disputes,
a number of which concerned consular activities.
Articles 10, 11 and 12.
393 But note Security Council resolution 1193 (1998) condemning the Taliban authorities in
Afghanistan for the capture of the Iranian consulate-general.
jX9

'"
'"

IMMUNITIES FROM TURISDICTION

689

and documents394and exemptions from taxes."' Article 35 provides for
freedom of communication, emphasising the inviolability of the official
correspondence of the consular post and establishing that the consularbag should be neither opened nor detained. However, in contrast to thesituation with regard to the diplomatic bag,"6 where the authorities of thereceiving state have serious reason to believe that the bag contains otherthan official correspondence, documents or articles, they may request thatthe bag be opened and, if this is refused, the bag shall be returned to its
place of origin.
Article 36(1) constitutes a critical provision and, as the International
Court emphasised in the LaGrand (Germany v. USA) case, it 'establishes
an interrelated regime designed to facilitate the implementation of thesystem of consular p r o t e c t i ~ n ' . ~Article~'
36(l)(a) provides that consular
officers shall be free to communicate with nationals of the sending state
and to have access to them, while nationals shall have the same freedomof communication with and access to consular officers. In particular,
article 36(l)(b) provides that if the national so requests, the authoritiesof the receiving state shall without delay inform the consular post of thesending state of any arrest or detention. The authorities in question shallinform the national of the sending state without delay of his or her rights.
Similarly, any communication from the detained national to the consular
post must be forwarded without delay. The Court concluded that, basedon a reading of the text, article 36(1) created individual rights which, by
virtue of the Optional Protocol on Compulsory Settlement of Disputes
attached to the Convention, may be invoked before the
The Court held that the US had breached its obligations under article 36(1) by not informing the LaGrand brothers of their rights underthat provision 'without delay'.399In an Advisory Opinion of 1 October
1999, the Inter-American Court of Human Rights concluded that the
duty to notify detained foreign nationals of the right to seek consular
assistance under article 36(1) constituted part of the corpus of humanrights.400
See above, p. 376.
para. 77.
'99 Ibid., para. 128. See also the Avena (Mexico u. USA4Jcase on substantially the same issue,
ICJ, Order for the Indication of Provisional Measures, 5 February 2003.
Series A 16, OC-16199, 1999 and 94 AJIL, 2000, p. 555. See above, chapter 7, p. 361.
Note that the International Court in the LaGrand case felt it unnecessary to deal with thisargument, ICJ Reports, 2001, para. 78. As to the right of access to nationals, see also the
Yugoslavincident of summer 2000, where the UKprotested at the absence of information'94

Article 33.

395

Article 32.

'" ICJ Reports, 2001, para. 74.

396"""bid.,

690

I N T E R N A T I O N A L LAW

Article 41 provides that consular officers may not be arrested or detained except in the case of a grave crime and following a decision by thecompetent judicial authority. If, however, criminal proceedings are instituted against a consul, he must appear before the competent authorities.
The proceedings are to be conducted in a manner that respects his official position and minimises the inconvenience to the exercise of consularfunctions. Under article 43 their immunity from jurisdiction is restrictedin both criminal and civil matters to acts done in the official exerciseof consular functions."' In Koeppel and Koeppel v. Federal Republic of~ i ~ e r i a for, ~ 'example,~
it was held that the provision of refuge by the
Nigerian Consul-General to a Nigerian national was an act performed in
the exercise of a consular function within the meaning of article 43 andthus attracted consular immunity.

T h e Convention o n Special Missions, 1 9 6 9 ~ ' ~In many cases, states will send out special or ad hoc missions to particularcountries to deal with some defined issue in addition to relying upon
the permanent staffs of the diplomatic and consular missions. In suchcircumstances, these missions, whether purely technical or politically important, may rely on certain immunities which are basically derived fromthe Vienna Conventions by analogy with appropriate modifications. By
article 8, the sending state must let the host state know of the size andcomposition of the mission, while according to article 17 the mission
must be sited in a place agreed by the states concerned or in the Foreign
Ministry of the receiving state.
By article 31 members of special missions have no immunity withrespect to claims arising from an accident caused by avehicle, used outside
the official functions of the person involved, and by article 27 only such
freedom of movement and travel as is necessary for the performance ofthe functions of the special mission is permitted.
with regard to the arrest by Yugoslavia of British citizens seconded to the UN Mission in
Kosovo: see UKMIL, 71 BYIL, 2000, p. 608.
401 See e.g. Priilcess Ziziunoff v. IZuhn and Bigelow 4 AD, p. 384. See generally, as to consularfunctions, DUSPIL, 1979, pp. 655 ff. Note that waiver of consular immuilities underarticle 45, in addition to being express, must also be in writing.
402 704 FSupp 521 (1989); 99 ILR, p. 121.
403 See e.g. Hardy, Modern Diploiizutic Law, p. 89, and Oppenheinz's Intel-nutioilul Law, pp.
1125 ff. The Coilveiltion came into force in June 1985.

IMMUNITIES FROM TURISDICTION

691

The question of special missions was discussed in the Tahatabai casebefore a series of German courts.404The Federal Supreme Court notedthat the Convention had not yet come into force and that there were conflicting views as to the extent to which it reflected existing customary law.
However, it was clear that there was a customary rule of internationallaw which provided that an ad hoc envoy, charged with a special politicalmission by the sending state, may be granted immunity by individual
agreement with the host state for that mission and its associated status
and that therefore such envoys could be placed on a par with members of
the permanent missions of states.405The concept of immunity protected
not the diplomat as a person, but rather the mission to be carried out
by that person on behalf of the sending state. The question thus turnedon whether there had been a sufficiently specific special mission agreed
upon by the states concerned, which the Court found in the circums t a n c e ~In. ~USA~ ~ v. Sissoko, the District Court held that the Convention
on Special Missions, to which the US was not a party, did not constitute customary international law and was thus not binding upon the
Co~rt.~"The Vienna Convention on the Representation of States in their
Relations with International Organisations of a
Universal Character, 1975 408
This treaty applies with respect to the representation of states in any
international organisation of a universal character, irrespective ofwhether
or not there are diplomatic relations between the sending and the hoststates.
There are many similarities between this Convention and the 1961
Vienna Convention. By article 30, for example, diplomatic staff enjoy
complete immunity from criminal jurisdiction, and immunity from civil
and administrative jurisdiction in all cases, save for the same exceptions
404 See 80 ILR, p. 388. See also Aockslaff and Koch, 'The Tabatabai Case: The Immunity ofSpecial Envoys and the Linlits of Judicial Review: 25 German YIL, 1982, p. 539.
80 ILR, pp. 388, 419.
'06 Ibid., p. 420.
407 999 F.Supp 1469 (1997); 121 ILR, p. 600.
408 See e.g. J. G. Fennessy, 'The 1975 Vienna Convention on the Representation of States intheir Relations with International Organisations of a Universal Character: 70 AJIL, 1976,
p. 62.
405

692

I N T E R N A T I O N A L LAW

noted in article 31 of the 1961 Convention. Administrative, technical andservice staff are in the same position as under the latter treaty (article 36).
The mission premises are inviolable and exempt from taxation by thehost state, while its archives, documents and correspondence are equally
inviolable.
The Convention has received an unenthusiastic welcome, primarily
because of the high level of immunities it provides for on the basis of acontroversial analogy with diplomatic agents of missions.409The rangeof immunities contrasts with the general situation under existing conventions such as the Convention on the Privileges and Immunities of theUnited Nations, 1946.~"

T h e immunities of international organisations
As far as customary rules are concerned, the position is far from clear and
it is usually dealt with by means of a treaty, providing such immunities tothe international institution sited on the territory of the host state as are
regarded as functionally necessary for the fulfilment of its objectives.
Probably the most important example is the General Convention on thePrivileges and Immunities of the United Nations of 1946, which sets out
the immunities of the United Nations and its personnel and emphasises
the inviolability of its premises, archives and documents.411

Internationally protected persons
The 1973 Convention on the Prevention and Punishment of Crimes
against Internationally Protected Persons, including Diplomatic Agentscame into force in 1977. It seeks to protect heads of state or government,
It should be noted that among those states abstaining in the vote adopting the Convention were France, the US, Switzerland, Austria, Canada and the UK, all states that hostthe headquarters of important international organisations: see Fennessy, '1975 Vienna
Convention', p. 62.
410 See in particular article IV See also, for a similar approach in the Convention on thePrivileges and Immunities of the Specialised Agencies, 1947, article V.
411 See further below, chapter 23, p. 1205. See, as to the privileges and immunities of foreign
armed forces, including the NATO Status of Forces Agreement, 1951, which provides fora system of concurrent jurisdiction, S. Lazareff, Statns of Military Forces under Current
International Law, Leiden, 1971; Brownlie, Principles, pp. 372 ff., and J. Il'oodliffe, The
Dordrecht,
Peacetime UseofForeign Militczry Installations 14nderModernIntel-natior~ulLu~v,
1992.
409

IMMUNITIES FROM TURISDICTION

693

foreign ministers abroad, state representatives and officials of international organisations from the offences of murder, kidnapping or otherattack upon their person or liberty.412
Suggestions for further reading
E. Denza, Diplomatic Law, 2nd edn, Oxford, 1998
H. Fox, The Law of State Imnzunity, Oxford, 2002
C. H. Schreuer, State Inzmunity: Some Recent Developments, Cambridge, 1988
I. Sinclair, 'The Law of Sovereign Immunity: Recent Developments', 167 HR, 1980,
p. 113
A. Watts, 'The Legal Position in International Law of Heads of State, Heads ofGovernments and Foreign Ministers', 247 HR, 1994 111, p. 13'I2

See further above, p. 600.

State responsibility

State responsibility is a fundamental principle of international law, arising out of the nature of the international legal system and the doctrinesof state sovereignty and equality of states. It provides that whenever one
state commits an internationally unlawful act against another state, international responsibility is established between the two. A breach of aninternational obligation gives rise to a requirement for reparation.'
Accordingly, the focus is upon principles concerned with second-orderissues, in other words the procedural and other consequences flowing
from a breach of a substantive rule of international law.' This has led
to a number of issues concerning the relationship between the rules ofstate responsibility and those relating to other areas of international law.
The question as to the relationship between the rules of state responsibility and those relating to the law of treaties arose, for example, in the
Rainbow Warrior Arbitration between France and New Zealand in 1990.'
See generally, J. Crawford, The International Law Conrmission's Articles on State Responsibility, Cambridge, 2002; C. Eagleton, Tlie Respoilsibility of States in International Law,
New York, 1928; Iilterrlational Law of State Responsibility for Injuries to Aliens (ed. R. B.
Lillich), Charlottesville, 1983; R. B. Lillich, 'Duties of States Regarding the Civil Rights of
Aliens: 161 HR, 1978, p. 329, and Lillich, The Hnrnan Rights of Aliens in Conteiilporary
Interizatiotzal Law, Charlottesville, 1984; I. Brownlie, System of the Law of Nations: State
Responsibility, Part I, Oxford, 1983; Bin Cheng, General Principles of Law as Applied byInterizational Courts and Tribunals, London, 1953; United Nations Codification of State Responsibility (eds. M . Spinedi and B. Simma), New York, 1987; Societe Franqais de Droit
International, La Responsabilitt. dans le Syst&rneInternational, Paris, 1991; S. Rosenne, The
ILC's Draft Articles on State Responsibility, Dordrecht, 1991; B. Stern, 'La ResponsabiliteInternationale Aujourd'hui . . . Demain . . . ' in Mt.langes Apollis, Paris, 1992; Nguyen Quoc
Dinh, P. Daillier and A. Pellet, Droit Interrlational Public, 7th edn, Paris, 2002, p. 729, andOpperzlzeim's International Law (eds. R. Y.rennings and A. D. Watts), 9th edn, London,
1992, chapter 4. See also 'Symposium: The ILC's State Responsibility Articles: 96 ATIL,
2002, p. 773, and 'Symposium: Assessing the Work of the International Law Commissiono n State Responsibility', 13 EJIL, 2002, p. 1053.
* See Yearbook ofthe ILC, 1973, vol. 11, pp. 169-70. The issue ofstate responsibility for injuriescaused by lawful activities will be noted in chapter 15.
82 ILR, p. 499.

STATE R E S P O N S I B I L I T Y

695

The arbitration followed the incident in 1985 in which French agents destroyed the vessel Rainbow Warrior in harbour in New Zealand. The UN
Secretary-General was asked to mediate and his ruling in 1 9 8 6 ~provided
inter ulia for French payment to New Zealand and for the transferenceof two French agents to a French base in the Pacific, where they wereto stay for three years and not to leave without the mutual consent ofboth state^.^ However, both the agents were repatriated to France before
the expiry of the three years for various reasons, without the consent
of New Zealand. The 1986 Agreement contained an arbitration clause
and this was invoked by New Zealand. The argument put forward by
New Zealand centred upon the breach of a treaty obligation by France,
whereas that state argued that only the law of state responsibility was relevant and that concepts of force majeure and distress exonerated it fromliability.
The arbitral tribunal decided that the law relating to treaties was relevant, but that the legal consequences of a breach of a treaty, including
the determination of the circumstances that may exclude wrongfulness(and render the breach only apparent) and the appropriate remedies forbreach, are subjects that belong to the customary law of state responsibilit~.~
It was noted that international law did not distinguish between contractual and tortious responsibility, so that any violation by a state of any
obligation of whatever origin gives rise to state responsibility and consequently to the duty of reparation.' In the Gabi-ikovo-Nugymaros Project
case, the International Court reaffirmed the point that
A determination of whether a convention is or is not in force, and whether
it has or has not been properly suspended or denounced, is to be madepursuant to the law of treaties. O n the other hand, an evaluation of theextent to which the suspension or denunciation of a convention, seen as
incompatible with the law of treaties, involves the responsibility of the state
which proceeded to it, is to be made under the law of state resp~nsibility.~

The Arbitration Commission on Yugoslavia also addressed the issueof the relationship between state responsibility and other branches ofinternational law in Opinion No. 13, when asked a question as to whether
any amounts due in respect ofwar damage might affect the distribution of"ee 81 AJIL, 1987, p. 325 and 74 ILR, p. 256.
See also the Agreement between France and New Zealand of 9 ruly 1986, 74 ILR, p. 274
Ibld. See further below, p. 715.
82 ILR, pp. 499, 551.
ICJ Reports, 1997, pp. 7, 38; 116 ILR, p. 1.

'

696

I N T E R N A T I O N A L LAW

assets and debts in the succession process affecting the successor states of
the Former Yugoslavia. The Commission, in producing a negative answer,
emphasised that the question of war damage was one that fell within thesphere of state responsibility, while the rules relating to state successio~lfell into a separate area of international law. Accordingly, the two issues
had to be separately decided.'
In addition to the wide range of state practice in this area, the International Law Commission has been working extensively on this topic. In
1975 it took a decision for the draft articles on state responsibility to be
divided into three parts: part I to deal with the origin of international
responsibility, part I1 to deal with the content, forms and degrees of international responsibility and part I11 to deal with the settlement of disputes
y . ~I~was proviand the implementation of international r e ~ ~ o n s i b i l i tPart
sionally adopted by the Commission in 1980" and the Draft Articles were
finally adopted on 9 August 2001.12 General Assembly resolution 56/83
of 12 December 2001 took note of the adopted articles and commended
them to governments.

The nature of state responsibility
The essential characteristics of responsibility hinge upon certain basic
factors: first, the existence of an international legal obligation in force as
between two particular states; secondly, that there has occurred an act
or omission which violates that obligation and which is imputable to thestate responsible, and finally, that loss or damage has resulted from theunlawful act or omission.13
These requirements have been made clear in a number of leading cases.
In the Spanish Zone ofMorocco claims,14 Judge Huber emphasised that:
96 ILR, pp. 726, 728.

'' Yearbook o f t h e ILC, 1975, vol. 11, pp. 55-9. See also P. Allott, 'State Responsibility and theUnmaking of International Law', 29 Harvard International Law Journal, 1988, p. 1.
l 1 Yearbook of the ILC, 1980, vol. 11, part 2, pp. 30 ff.

ILC Commentary 2001, A/56/10,2001. This Report contains the Commentary of the ILC
to the Articles, which will be discussed in the chapter. The Commentary may also befound in Crawford, Articles. Note that the ILC Articles do not address issues of either
the responsibility of international organisations or the responsibility of individuals: see
articles 57 and 58.
l 3 See e.g. H. Mosler, The International Society as a Legal Community, Dordrecht, 1980,
p. 157, and E. Jimenez de Arechaga, 'International Responsibility' in ,Manual of Pt~blicInternational Law (ed. M. Sarensen), London, 1968, pp. 531, 534.
l 4 2 RIAA, p. 615 (1923); 2 AD, p. 157.

STATE R E S P O N S I B I L I T Y

697

responsibility is the necessary corollary of a right. All rights of an international character involve international responsibility. Responsibility resultsin the duty to make reparation if the obligation in question is not met.'"and in the Chorz6w Factory case,Ih the Permanent Court of International
Justice said that:
it is a principle of international law, and even a greater conception of law,that any breach of an engagement involves an obligation t o make reparation.

Article 1 of the International Law Commission's Articles on State Responsibility reiterates the general rule, widely supported by practice,"that every internationally wrongful act of a state entails responsibility.
Article 2 provides that there is an internationally wrongful act of a state
when conduct consisting of an action or omission is attributable to thestate under international law and constitutes a breach of an international
obligation ofthe state.18This principle has been affirmed in the case-law.''
It is international law that determines what constitutes an internationallyunlawful act, irrespective of any provisions of municipal law.20Article 12
stipulates that there is a breach of an international obligation21 when an
act of that state is not in conformity with what is required of it by thatobligation, regardless of its origin or character." A breach that is of acontinuing nature extends over the entire period during which the act
continues and remains not in conformity with the international obligation in question,23while a breach that consists of a composite act will also
extend over the entire period during which the act or omission continues
l5 2 RIAA, p. 641.

'"CIJ,
Series A, No. 17, 1928, p. 29; 4 AD, p. 258. See also the Corfi4 Channel case, ICT
Reports, pp. 4 , 23; 16 AD, p. 155; the Spanisll Zone of lbforocco case, 2 RIAA, pp. 615,
641 and the M a y a g f ~ a(Surno) Indigenous Cornlnunity o f A ~ v a sTingni v. Nicaragua, InterAmerican Court of Human Rights, Tudgment of 31 August 2001 (Ser. C) No. 79, para.
163.

See e.g. ILC Commentary 2001, p. 63.
See Yearbook of the ILC, 1976, vol. 11, pp. 75 ff. and ILC Commentary 2001, p. 68.
l 9 See e.g. Ckorzdw Factory case, PCIJ, Series A, No. 9, p. 21 and the Rainbow Warrior case,
82 ILR, 17. 499.
20 Article 3. See generally Yearbook of the ILC, 1979, vol. 11, pp. 90 ff.; ibid., 1980, vol. 11, pp.
14 ff. and ILC Commentary 2001,p. 74. See also above, chapter 4 , pp. 124 ff.
By which the state is bound at the time the act occurs, Article 13 and ILC Commentary
2001,p. 133. This principle reflects the general principle of intertemporal law: see e.g. theIsland of Palrnas case, 2 RIAA, pp. 829, 845 and above, chapter 9, p. 429.
22 See the Gabtikovo-A~agyrnuros Project case, ICJ Reports, 1997, pp. 7 , 3 8 ; 116 ILR, p. 1 andILC Commentary 2001, p. 124.
'3 See article 14. See also e.g. Loizidou v. Turkey, Merits, European Court of Human Rights,
Tudgment of 18 December 1996, paras. 41-7 and 63-4; 108 ILR, p. 443 and Cyprus v.
l7

''

698

I N T E R N A T I O N A L LAW

and remains not in conformitywith the international obligation.24A stateassisting another state25to commit an internationally wrongful act will
also be responsible if it so acted with knowledge of the circumstances andwhere it would be wrongful if committed by that stateeZ6
The question of fault2'
There are contending theories as to whether responsibility of the state forunlawful acts or omissions is strict or whether it is necessary to show somefault or intention on the part of the officials concerned. The principle ofobjective responsibility (the so-called 'risk' theory) maintains that theliability of the state is strict. Once an unlawful act has taken place, which
has caused injury and which has been committed by an agent of the state,that state will be responsible in international law to the state suffering
the damage irrespective of good or bad faith. To be contrasted with thisapproach is the subjective responsibility concept (the 'fault' theory) whichemphasises that an element of intentional (dolus) or negligent (culpu)
conduct on the part of the person concerned is necessary before his state
can be rendered liable for any injury caused.
The relevant cases and academic opinions are divided on this question,although the majority tends towards the strict liability, objective theoryof responsibility.
In the Neer claim28in 1926, an American superintendent of a Mexican
mine was shot. The USA, on behalf of his widow and daughter, claimed
damages because of the lackadaisical manner in which the Mexican authorities pursued their investigations. The General Claims Commission
dealing with the matter disallowed the claim, in applying the objective
test.
Turkey, European Court of Human Rights, Judgment of 10 May 2001, paras. 136, 150,
158, 175, 189 and 269; 12OILR, p. 10.
24 Article 15.

" Or directing or controlling it, see article 17; or coercing it, see article 18.
26 Article 16.

" See e.g. Crawford, Articles, p. 12; H . Lauterpacht, Private La~vSourcesandilnnlogies oflnter-national Law, Cambridge, 1927, pp. 135-43; Nguyen Quoc Dinh et al., Droit Internatioilul
Public, p. 766; Brownlie, Principles of Public Internatioilal Law, 5th edn, Oxford, 1998,
p. 439 and System, pp. 38-46, and Arechaga, 'International Responsibility', pp. 534-40.
See also J. G. Starke, 'Imputability in International Delinquencies', 19 BYIL, 1938, p. 104,
and Cheng, General Principles, pp. 218-32.
4 RIAA, p. 60 (1926); 3 AD, p. 213.

'*

STATE R E S P O N S I B I L I T Y

699

In the Caire claim,29the French-Mexican Claims Commission had toconsider the case of a French citizen shot by Mexican soldiers for failing to
supply them with 5,000 Mexican dollars. Verzijl, the presiding commissioner, held that Mexico was responsible for the injury caused in accordance with the objective responsibility doctrine, that is 'the responsibility
for the acts of the officials or organs of a state, which may devolve uponit even in the absence of any "fault" of its own'.30
A leading case adopting the subjective approach is the Home Missionary
Society claim" in 1920 between Britain and the United States. In thiscase, the imposition of a 'hut tax' in the protectorate of Sierra Leone
triggered off a local uprising in which Society property was damaged
and missionaries killed. The tribunal dismissed the claim of the Society(presented by the US) and noted that it was established in international
law that no government was resp onsible for the acts ofrebels where it itself
was guilty of no breach of good faith or negligence in suppressing therevolt. It should, therefore, be noted that the view expressed in this caseis concerned with a specific area of the law, viz. the question of state
responsibility for the acts of rebels. Whether one can analogise from thisgenerally is open to doubt.
In the Corfu Channel case,32the International Court appeared to lean
towards the fault theory3' by saying that:it cannot be concluded from the mere fact of the control exercised by a stateover its territory and waters that that state necessarily knew, or ought to have
known, of any unlawful act perpetrated therein, nor yet that it necessarily
knew, or should have known, the authors. This fact, by itself and apart fromother circumstances, neither involves prima facie responsibility nor shifts
the burden of p r ~ o f . ' ~On the other hand, the Court emphasised that the fact of exclusive
territorial control had a bearing upon the methods of proof available toestablish the knowledge of that state as to the events in question. Because of the difficulties of presenting direct proof of facts giving rise to
29 5 RIAA, p. 516 (1929); 5 AD, p. 146.
30 5 RIAA, pp. 529-31. See also The Jessie, 6 RIAA, p. 57 (1921); 1 AD, p. 175.

" 6 RIAA, p. 42 (1920); 1 AD, p. 173.
32

ICJ Reports, 1949, p. 4; 16 AD, p. 155.

" See e.g. Oppelzheim's Iilterilational Law, p. 509.
j4

ICJ Reports, 1949, pp. 4, 18; 16 AD, p. 157. Cf. Judges Krylov andEcer, ibid., pp. 71-2 and
127-8. See also Judge Azevedo, ibid., p. 85.

700

I N T E R N A T I O N A L LAW

responsibility, the victim state should be allowed a more liberal recourse
to inferences of fact and circumstantial e~idence.~'However, it must be pointed out that the Court was concerned with
Albania's knowledge of the laying of mines," and the question of prima
facie responsibility for any unlawful act committed within the territoryof the state concerned, irrespective of attribution, raises different issues.
It cannot be taken as proof of the acceptance of the fault theory. It may
be concluded that doctrine and practice support the objective theory andthat this is right, particularly in view of the proliferation of state organs
and agencies.37The Commentary to the ILC Articles emphasised that the
Articles did not take a definitive position on this controversy, but notedthat standards as to objective or subjective approaches, fault, negligence orwant of due diligence would vary from one context to another depending
upon the terms of the primary obligation in q ~ e s t i o n . ~ 'Imposing upon the state absolute liability wherever an official is involved
encourages that state to exercise greater control over its various departments and representatives. It also stimulates moves towards complying
with objective standards of conduct in international relations.
State responsibility covers many fields. It includes unlawful acts oromissions directly committed by the state and directly affecting otherstates: for instance, the breach of a treaty, the violation of the territoryof another state, or damage to state property. An example of the latter heading is provided by the incident in 1955 when Bulgarian fighter."
planes shot down an Israeli civil aircraft ofits state airline, ~ 1 ~ 1 Another'' Ibid.

j6

See Brownlie, Principles, pp. 445-6.

" The question of intention is to be distinguished from the problem of causality, i.e. whether
the act or omission in question actually caused the particular loss or damage: see e.g. theLighthouses case, 23 ILR, p. 352.
jS ILC Commentary 2001, pp. 69-70.
" See e.g. Yearbook of the ILC, 1973, vol. 11, p. 189. See also Brou~nlie,Principles, p. 449, andSystern, pp. 36-7 and chapter 7; Nguyen Quoc Dinh et al., Droit International Public, p.
773; L. Condorelli, 'L'Imputation a 1'Etat d'un Fait Internationallement Illicite', 188 HR,
1984, p. 9, and R. Higgins, 'The Concept of "the State": A Variable Geometry and Dualist
Perceptions' in M4larlges Abi-Saab, The Hague, 2001,p. 547.
See above, chapter 10, p. 473. See also the incident where a Soviet fighter plane crashedin Belgium. The USSR accepted responsibility for the loss of life and damage that resulted
and compensation was paid: see 91 ILR, p. 287 and J. Salmon, 'Chute sur le Territoire Belged'un Avion Militaire Sovietique de 4 Juillet 1989, Problemes de Responsabilite', RevueBelgede Droit International, 1990, p. 510.

STATE R E S P O N S I B I L I T Y

701example of state resp onsibility is illustrated by the Nicaragua case,41where
the International Court of Justice found that acts imputable to the US included the laying of mines in Nicaraguan internal or territorial waters
and certain attacks on Nicaraguan ports, oil installations and a naval baseby its agents." In the Corfu Channel case,43Albania was held responsible
for the consequences of mine-laying in its territorial waters on the basisof knowledge possessed by that state as to the presence of such mines,
even though there was no finding as to who had actually laid the mines.
In the Rainbow warrior incident,44the UN Secretary-General mediated asettlement in which New Zealand received inter alia a sum of $7 million
for the violation of its sovereignty which occurred when that vessel wasdestroyed by French agents in New Zealand.45 The state may also incur
responsibility with regard to the activity of its officials in injuring a national of another state, and this activity need not be one authorised by
the authorities of the state.
The doctrine depends on the link that exists between the state and theperson or persons actually committing the unlawful act or omission. The
state as an abstract legal entity cannot, of course, in reality 'act' itself. It
can only do so through authorised officials and representatives. The state
is not responsible under international law for all acts performed by its
nationals. Since the state is responsible only for acts of its servants thatare imputable or attributable to it, it becomes necessary to examine theconcept of imputability (also termed attribution). Imputability is the legal
fiction which assimilates the actions or omissions of state officials to thestate itself and which renders the state liable for damage resulting to theproperty or person of an alien.
Article 4 of the ILC Articles provides that the conduct of any stateorgan (including any person or entity having that status in accordancewith the internal law of the state) shall be considered as an act of thestate concerned under international law where the organ exercises legislative, executive, judicial or any other function, whatever position it holds
in the organisation of the state and whatever its character as an organ of
the central government or of a territorial unit of the state. This approach" Nicaragua v. United States, ICT Reports, 1986, p. 14; 76 ILR, p. 349.
42

ICI Reports, 1986,1317 48-51 and 146-9; 76 ILR, pp. 382,480.

" ICJ Reports, 1949, p. 4; 16 AD, p. 155.

" See 81 AJIL, 1987, p. 325 and 74 ILR, pp. 241 ff. See also above, p. 694.
45

Note also the CTSS Stark incident, in which a US guided missile frigate o n station in the
Persian Gulf was attacked by Iraqi aircraft in May 1987. The Iraqi government agreed to
pay compensation of $27 million: see 83 AJIL, 1989, pp. 561-4.

702

I N T E R N A T I O N A L LAW

reflects customary law. As the International Court noted in Difference
Relating to Immunity from Legal Process of a Special Rapporteur, 'According
to a well-established rule of international law, the conduct of any organof a state must be regarded as an act of that state.'46 This would clearly
cover units and sub-units within a state.47
Article 5, in reaction to the proliferation of government agencies andparastatal entities, notes that the conduct of a person or of an entity
not an organ of the state under article 4 but which is empowered by thelaw of that state to exercise elements of governmental authority shall beconsidered an act of the state under international law, provided the person or entity is acting in that capacity in the particular instance. This
provision is intended inter alia to cover the situation of privatised corporations which retain certain public or regulatory functions. Examplesof the application of this article might include the conduct of private
security firms authorised to act as prison guards or where private orstate-owned airlines exercise certain immigration controls48or with regard to a railway company to which certain police powers have been
granted.49
Article 6 provides that the conduct of an organ placed at the disposalof a state by another state shall be considered as an act of the former
state under international law, if that organ was acting in the exercise ofelements of the governmental authority of the former state. This would,
for example, cover the UK Privy Council acting as the highest judicial
body for certain Commonwealth c ~ u n t r i e s . ~ 'Ultra vires acts
An unlawful act may be imputed to the state even where it was beyond
the legal capacity of the official involved, providing, as Verzijl noted in
46

4'

"
''

ICJ Reports, 1999, pp. 62, 87. See also e.g. the iMassey case, 4 RIAA, p. 155 (1927); 4 AD,
p. 250 and the Salvador Cornrnercial Corr~panycase, 15 R I M , p. 477 (1902). As an exampleof the state organ concerned being from the judiciary, see the Sunday Times case, European
Court of Human Rights, Series A, vol. 30, 1979; 58 ILR, p. 491, and from the legislature,see e.g. the Young Jariles and Webster case, European Court of Human Rights, Series A,
vol. 44, 1981; 62 ILR, p. 359.
Thus, not only would communes, provinces and regions of a unitary state be concerned,
see e.g. the Heirs o f t h e Dtlc de Guisecase, 13 RIAA, p. 161 (1951); 18 ILR, p. 423, but also
the component states of a federal state, see e.g. the LaGrand (Provisional Meast~res)case,
ICJ Reports, 1999, pp. 9, 16; the Davycase, 9 RIAA, p. 468 (1903); the Jarlcs case, 4 RIAA,
p. 86 (1925); 3 AD, p. 218 and the Pellat case, 5 AD, p. 536 (1929); 5 AD, p. 145. See also
Yearbook of the ILC, 1971, vol. 11, part I, pp. 257 ff. and ILC Commentary 2001, pp. 84 ff.
ILC Commentary 2001, p. 92.
"9 Yearbook of the ILC, 1974, rol. 11, pp. 281-2.
Ibid., p. 288 and ILC Commentary 2001, p. 98.

STATE R E S P O N S I B I L I T Y

703

the Caire case,51that the officials 'have acted at least to all appearances ascompetent officials or organs or they must have used powers or methods
appropriate to their official capacity'.
This was reaffirmed in the Moss6 case," where it was noted that:
Even if it were admitted that. . . officials. . .had acted. . . outside the statutory limits of the competence of their service, it should not be deduced,
without further ado, that the claim is not well founded. It would still he necessary to consider a question oflaw. . . namely xvhether in the international
order the state should be acknowledged responsible for acts performed by
officials within the apparent limits of their f~~nctions,in accordance witha line of conduct which was not entirely contrary to the instructions received.

In Youman's claim,53militia ordered to protect threatened American
citizens in a Mexican town instead joined the riot, during which the Americans were killed. These unlawful acts by the militia were imputed tothe state of Mexico, which was found responsible by the General ClaimsCommission. In the Union Bridge Company case,54 a British official of
the Cape Government Railway mistakenly appropriated neutral property
during the Boer War. It was held that there was still liability despite thehonest mistake and the lack of intention on the part of the authorities
to appropriate the material in question. The key was that the action waswithin the general scope of duty of the official. In the Saizdline case, theTribunal emphasised that, 'It is a clearly established principle of international law that acts of a state will be regarded as such even if they are ultra
vires or unlawful under the internal law of the state. . . their [institutions,
officials or employees of the state] acts or omissions when they purport
to act in their capacity as organs of the state are regarded internationallyas those of the state even though they contravene the internal law of thestate.'55
Article 7 of the ILC Articles provides that the conduct of an organ orof a person or entity empowered to exercise elements of governmental
authority shall be considered an act of the state under international law if
acting in that capacity, even if it exceeds its authority or contravenes'' 5 RIAA, pp. 516,530 (1929); 5 AD, pp. 146,148.
" 13 RIAA, p. 494 (1953); 20 ILR, p. 217.

j3 4 RIAA, p. 110 (1926); 3 AD, p. 223.
6 RIAA, p. 138 (1924); 2 AD, p. 170.
" 117 ILR, pp. 552,561. See also Azinian v. United Mexican States 121 ILR, pp. 1,23; SP(ME)Ltd v. E g ~ p106t ILR, p. 501 and Metalclad Corporation v. United ,Mexican States 119 ILR,
pp. 615, 634.

j4

704

I N T E R N A T I O N A L LAW

instructions.j6 This article appears to lay down an absolute rule ofliability, one not limited by reference to the apparent exercise of authority
and, in the context of the general acceptance of the objective theory of
responsibility, is probably the correct approach.57
Although private individuals are not regarded as state officials so thatthe state is not liable for their acts, the state may be responsible for failingto exercise the control necessary to prevent such acts. This was emphasisedin the Zafiro casej8 between Britain and America in 1925. The Tribunal
held the latter responsible for the damage caused by the civilian crew ofa naval ship in the Philippines, since the naval officers had not adopted
effective preventative measures.
State control and responsibility
Article 8 of the ILC Articles provides that the conduct of a person orgroup of persons shall be considered as an act of state under internationallaw if the person or group of persons is in fact acting on the instructionsof, or under the direction or control of, that state in carrying out the
conduct. The first proposition is uncontroversial, but difficulties havearisen in seeking to define the necessary direction or control required
for the second proposition. The Commentary to the article emphasises
that, 'Such conduct will be attributable to the state only if it directed
or controlled the specific operation and the conduct complained of was
an integral part of the operation.'j9 Recent case-law has addressed theissue.
a the International Court declared that in order
In the N i c a r u g ~ ~case,for the conduct of the contm guerrillas to have been attributable to theUS, who financed and equipped the force, 'it would in principle have to be
proved that that state had effective control of the military or paramilitary
operation in the course of which the alleged violations were committed'." In other words, general overall control would have been insufficient to ground responsibility. However, in the T a d 2 case, the Yugoslav
56

See ILC Commentary 2001, p. 99 and see also Yearbook of the ILC, 1975, vol. 11, p. 67.

" See e.g. the Caire case, 5 RIAA, p. 516 (1929); 5 AD, p. 146 and the kldsquez Rodriguez

case, Inter-American Court of Human Rights, Series C, No. 4,1989, para. 170; 95 ILR, pp.
259,296. See also T. Meron, 'International Responsibility of States for Unauthorised Actsof Their Officials: 33 BYIL, 1957, p. 851.
6 RIAA, p. 160 (1925); 3 AD, p. 221. See also Re Gill 5 RIAA, p. 157 (1931); 6 AD, p. 203.
j9 ILC Commentary 2001, p. 104.
60 ICJ Reports, 1986, p p 14, 64-5; 76 ILR, p. 349.

'*

STATE R E S P O N S I B I L I T Y

705

War Crimes Tribunal adopted a more flexible approach, noting that thedegree of control might vary according to the circumstances and a highthreshold might not always be required.61In this case, of course, the issue
was of individual criminal responsibility. Further, the situation might bedifferent where the state deemed responsible was in clear and uncontested
effective control of the territory where the violation occurred. The International Court of Justice in the Namibia case stated that, 'Physical control
of a territory and not sovereignty or legitimacy of title, is the basis of state
liability for acts affecting other states.""hiswas reaffirmed in Loizidou v.
Turkey, where the European Court of Human Rights noted that, bearing
in mind the object and purpose of the European Convention on Human
Rights,the responsibility of a contracting party may also arise when as a consequence ofmilitary action- whether lawful or unlawful- it exercises effective
control of an area outside its national territory. The obligation to secure,in such an area, the rights and freedoms set out in the Convention, derives
from the fact of such control whether it be exercised directly, through its
armed forces, or through a subordinate local a d r n i n i ~ t r a t i o n . ~ ~Article 9 of the ILC Articles provides that the conduct of a person
or a group of persons shall be considered as an act of the state underinternational law if the person or group was in fact exercising elementsof the governmental authority in the absence or default of the official
authorities and in circumstances such as to call for the exercise of thoseelements of a ~ t h o r i t y . ~ ~Mob violence, insurrections and civil wars
Where the governmental authorities have acted in good faith and without negligence, the general principle is one of non-liability for the actions of rioters or rebels causing loss or damage." The state, however,
38 ILM, 1999, pp. 1518, 1541.
62 ICJ Reports, 1971, pp. 17,54; 42 ILR, p. 2.

Preliminary Objections, European Court of Human Rights, Series A, No. 310,1995, pp. 20,
24; 103 ILR, p. 621, and the merits judgment, European Court of Humail Rights, Judgmentof 18 December 1996, para. 52; 108 ILR, p. 443. See also Cyprrls v. Turkey, European Courtof Humail Rights, Judgmeilt of 10 May 2001, para. 76; 120 ILR, p. 10.
64 See e.g. the Yeuger case, 17 Iran-US CTR, 1987, pp. 92, 104.
65 See e.g. the Home A4issionury Society case, 6 RIAA, pp. 42, 44 (1920); 1 AD, p. 173; theYounzuns case, 4 RIAA, p. 110 (1926); 3 AD, p. 223 and the Herd case, 4 RIAA, p. 653(1930).
63

706

I N T E R N A T I O N A L LAW

is under a duty to show due diligence. Quite what is meant by this isdifficult to quantify and more easily defined in the negative.@ It should
also be noted that special provisions apply to diplomatic and consularpersonnel.6'
Article 10 of the ILC Articles provides that where an insurrectional
movement is successful either in becoming the new government of a state
or in establishing a new state in part of the territory of the pre-existingstate, it will be held responsible for its activities prior to its assumption of
authority.68
The issue of the responsibility of the authorities of a state for activities that occurred prior to its coming to power was raised before the
Iran-US Claims Tribunal. In Short v. The Islamic Republic of ran,^' the
Tribunal noted that the international responsibility of a state can be engaged where the circumstances or events causing the departure of an alien
are attributable to it, but that not all departures of aliens from a country in a period of political turmoil would as such be attributable to thatstate." In the instant case, it was emphasised that at the relevant time therevolutionary movement had not yet been able to establish control overany part of Iranian territory and the government had demonstrated its
loss of control. Additionally, the acts of supporters of a revolution cannot
be attributed to the government following the success of the revolution,
just as acts of supporters of an existing government are not attributable
to the government. Accordingly, and since the claimant was unable toidentify any agent of the revolutionary movement the actions of whom
forced him to leave Iran, the claim for compensation failed.'l In Yeager
v. The Islamic Republic of ran,^^ the Tribunal awarded compensation for
expulsion, but in this case it was held that the expulsion was carried out
by the Revolutionary Guards after the success of the revolution. Although
the Revolutionary Guards were not at the time an official organ of the
Iranian state, it was determined that they were exercising governmental
Spanish Zone of ibforocco claims, 2 RIAA, pp. 617, 642 (1925);
2 AD, p. 157. See Brownlie, Principles, pp. 449 ff. and the Sariibaggio case, 10 RIAA,
p. 499 (1903).See also YenrbookoftheILC, 1957, vol. 11,pp. 121-3, and G. Schwarzenberger,
International Law, 3rd edn, London, 1957, pp. 653 ff.
67 See above, chapter 13, pp. 668 ff.
" E.g. Judge Huber, theSee E. M. Borchard, The Diploniatic Protection of Citizens Abroad, New York, 1927,
p. 241 and the Bolivian Rnihvay Compnriy case, 9 RIAA, p. 445 (1903). See also the ILC
Commentary 2001, p. 112.
69 16 Iran-US CTR, p. 76; 82 ILR, p. 148.
70 16 Iran-US CTR, p. 83; 82 ILR, pp. 159-60.
16 Iran-US CTR, p. 85; 82 ILR, p. 161.
17 Iran-US CTR, p. 92; 82 ILR, p. 178.

""

STATE R E S P O N S I B I L I T Y

707

authority with the knowledge and acquiescence of the revolutionary state,making Iran liable for their acts.73
Falling somewhat between these two cases is Rankin v. The Islamic
Republic of ran,^^ where the Tribunal held that the claimant had notproved that he had left Iran after the revolution as a result of action by the Iranian government and the Revolutionary Guards as distinct from leaving because of the general difficulties of life in that state
during the revolutionary period. Thus Iranian responsibility was notengaged.
Where a state subsequently acknowledges and adopts conduct as its
own, then it will be considered as an act of state under international law
entailing responsibility, even though such conduct was not attributable
to the state beforehand." In the Iranian Hostages case, for example, theInternational Court noted that the initial attack on the US Embassy by
militants could not be imputable to Iran since they were clearly not agentsor organs of the state. However, the subsequent approval of the Ayatollah
Khomeini and other organs of Iran to the attack and the decision tomaintain the occupation of the Embassy translated that action into astate act. The militants thus became agents of the Iranian state for whose
acts the state bore international re~ponsibility.'~

Circumstances precluding wrongfulness"
Where a state consents to an act by another state which would otherwise
constitute an unlawful act, wrongfulness is precluded provided that theact is within the limits ofthe consent given.78The most common exampleof this kind of situation is where troops from one state are sent to anotherat the request of the latter.i9 Wrongfulness is also precluded where the act" 17 Iran-US CTR, p. 104; 82 ILR, p. 194.
74 17 Iran-US CTR, p. 135; 82 ILR, p. 204.
75

Article 11 and see ILC Commentary 2001, p. 118.

76 ICJ Reports, 1980, pp. 3, 34-5; 61 ILR, pp. 530, 560. See also above, chapter 13, p. 672.
77 See e.g. M. Whiteman, Digest oflnternutional Law, JVashington, 1970, vol. VII, pp. 837 ff.;

Yearbook of the ILC, 1979, vol. 11, part 1, pp. 21 ff.; ibid., 1980, vol. 11, pp. 26 ff. and ILC
Commentary 2001, p. 169. See also Nguyen Quoc Dinh et al., Droit I~lterilutionalPtrblic,
p. 782, and A. 1'
. Lowe, 'Precluding Mkongfulness or Responsibility: A Plea for Excuses:
10 EJIL, 1999, p. 405.
See article 20 of the ILC Articles. See further ILC Commentary 2001, p. 173.
79 See e.g. the dispatch of UK troops to Muscat and Oman in 1957, 574 HC Deb., col. 872,
29 July 1957, and to Jordan in 1958, SCOR, 13th Sess., 831st meeting, para. 28.

'*

708

I N T E R N A T I O N A L LAW

constitutes a lawful measure of self-defence taken in conformity with theCharter of the UN.~'This would also cover force used in self-defence as
defined in the customary right as well as under article 51 of the Charter,
since that article refers in terms to the 'inherent right' of individual andcollective self-defence." Further, the ILC Commentary makes it clear thatthe fact that an act is taken in self-defence does not necessarily mean that
all wrongfulness is precluded, since the principles relating to human rights
and humanitarian law have to be respected. The International Court, inparticular, noted in its advisory opinion in the Legality of the Threat or
Use of Nuclear Weapons that, 'Respect for the environment is one of theelements that go to assessing whether an action is in conformity with theprinciples of necessity and proportionality' and thus in accordance withthe right to self-defence.82
Article 22 of the ILC Articles provides that the wrongfulness of an act isprecluded if and to the extent that the act constitutes a c o u n t e r m e a ~ u r e . ~ ~International law originally referred in this context to reprisals, whereby
an otherwise unlawful act is renderedlegitimate by the prior application of
unlawful f~rce.~"he term 'countermeasures' is now the preferred term
for reprisals not involving the use of force.85 Countermeasures may becontrasted with the provisions laid down in article 60 of the Vienna Convention on the Law of Treaties, 1969, which deals with the consequencesof a material breach of a treaty in terms of the competence of the otherparties to the treaty to terminate or suspend it.8GWhile countermeasures
do not as such affect the legal validity of the obligation which has beenbreached by way of reprisal for a prior breach, termination of a treaty
under article 60 would under article 70 free the other parties to it fromany further obligations under that treaty.
The International Court stated in the Gabtikovo-Nagymaros Projectcase that,
Article 21 and see also ILC Commentary 2001, p. 177.

" See fi~rtherbelo~v,chapter 20, p. 1024.
ICJ Reports, 1996, pp. 226,242; 110 ILR, p. 163.
" See ILC Commentary 2001, p. 180. See also Crawford, Articles, pp. 47 ff.
" See e.g. the Naulilua case, 2 RIAA, p. 1025 ( 1 9 2 8 ) ;4 AD, p. 466 and the Cysize case,

2 R I M , p. 1056; 5 AD, p. 150.
" See e.g, the US-France Air Services Agreement case, 54 ILR, pp. 306, 337. See also Reportof the International Law Commission, 1989, A144110 and ibid., 1992, A147110, pp. 39 ff.
See also C. Annacker, 'Part Two of the Iilternational Law Cominission's Draft Articles onState Responsibility', 37 German YIL, 1994, pp. 206,234 ff.; E. Zoller, Peacetime Unilateral
New York, 1984, and 0.Y.Elagab, The Legality
Remedies: An Analysis of Countermeas~~res,ofNon-Forcible Counter-Measures ilz Iuteruational Law, Oxford, 1988.
86 See further below, chapter 16, p. 853.

STATE R E S P O N S I B I L I T Y

709

In order to be justifiable, a countermeasure must meet certain conditions. . . I n the first place it must be taken in response to a previous international wrongful act of another state and must be directed against thatstate.. . Secondly, the injured state must have called upon the state committing the wrongful act to discontinue its wrongful conduct or to makereparation for i t . . . In the view of the Court, an important consideration isthat the effects of a countermeasure must be commensurate with the injury
suffered, taking account of the rights in question.. . [and] its purpose must
be to induce the wrongdoing state to comply with its obligations underinternational law, a n d . . .the measure must therefore be rever~ible.'~In other words, lawful countermeasures must be in response to a priorwrongful act and taken in the light of a refusal to remedy it, directedagainst the state committing the wrongful act and proportionate. Further,
there is no requirement that the countermeasures taken should be withregard to the same obligation breached by the state acting wrongfully.
Thus, the response to a breach of one treaty may be action taken withregard to another treaty, provided that the requirements of necessity andproportionality are respected.88
The ILC Articles deal further with countermeasures in Chapter 11. Article 49 provides that an injured states9 may only take countermeasuresagainst a state responsible for the wrongful act in order to induce the latter to comply with the obligations consequent upon the wrongful act."
Countermeasures are limited to the non-performance for the time beingof international obligations of the state taking the measures and shall, as
far as possible, be taken in such a way as to permit the resumption of
performance of the obligation in q u e ~ t i o n .Article~'
50 makes it clear thatcountermeasures shall not affect the obligation to refrain from the threator use of force as embodied by the UN Charter, obligations for the protection of human rights, obligations of a humanitarian character prohibiting
reprisals and other obligations of jus cogens. By the same token, obligations under any applicable dispute settlement procedure between the twostates continue,92 while the state taking countermeasures must respect
the inviolability of diplomatic or consular agents, premises, archives and" ICJ Reports, 1997, pp. 7,55-7; 116 ILR, p. 1. Note that the ILC took the view that the duty
to choose measures that are reversible is not absolute, ILC Commentary 2001, p. 332. See
also the Nicaragua case, ICI Reports, 1986, pp. 14, 102; 76 ILR, p. 1.
** See ILC Commentary 2001, pp. 326-7.
89 See further below, p. 713.
90 See further below, p. 714.
91 See ILC Commentary 2001, p. 328.
9' See e.g. 'Symposium on Counter-Measures and Dispute Settlement,' 5 EJIL, 1994, p. 20,
and Report of the International Law Commission, 1995, Al50110, pp. 173 ff. See alsohnnacker, 'Part Two\.o:pp. 242 ff.

7lO

I N T E R N A T I O N A L LAW

documents.93Article 51 emphasises the requirement for proportionality,
noting that countermeasures must be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act
and the rights in question.94Article 52 provides that before taking countermeasures, the injured state must call upon the responsible state to fulfil
its obligations and notify that state of any decision to take countermeasures while offering to negotiate. However, the injured state may take suchcountermeasures as are necessary to preserve its rights. Where the wrongful acts have ceased or the matter is pending before a court or tribunal withpowers to take binding decisions, then countermeasures should cease (orwhere relevant, not be taken).95Countermeasures shall be terminated assoon as the responsible state has complied with its obligations.96
Force majeure has long been accepted as precluding ~ r o n ~ f u l n e s s , ~ 'although the standard of proof is high. In the Serbian Loaizs case,98forexample, the Court declined to accept the claim that the First World War
had made it impossible for Serbia to repay a loan. In 1946, following a
number of unauthorised flights of US aircraft over Yugoslavia, both statesagreed that only in cases of emergency could such entry be justified in
the absence of consent.99 ~ r t i c l e23 of the ILC Articles provides for the
preclusion of wrongfulness where the act was due to the occurrence ofan irresistible force or of an unforeseen event beyond the control of thestate, making it materially impossible in the circumstances to performo b l i g a t i ~ n . In
' ~ ~the Gill case,lol for example, a British national residing
in Mexico had his house destroyed as a result of sudden and unforeseen
93 See further ILC Commentary 2001, p. 333.

US-FranceAir Services AgreementArbitration, 54 ILR, pp. 303,337. See also the ILC
Commentary 2001, p. 341 and the Report of the ILC o n its 44th Session, 1992, Al47110,
p. 70.
See ILC Commentary 2001, p. 345.
96 Ibid., p. 349.
9' See e.g. Yearbook of the ILC, 1961, vol. 11, p. 46 and ILC Commentary 2001, p. 183.
" PCIJ, Series A, No. 20, 1929, p. 39. See also the Brazilian Loans case, PCIJ, Series A,
No. 20, 1929, p. 120; 5 AD, p. 466.
99 Yearbook of the ILC, 1979, vol. 11, p. 60 and ILC Commentary 2001, pp. 189-90. This
example would cover both force ntajeure and distress (discussed below). Note also that
article 18(2) provides that stopping and anchoring by ships during their passage throughthe territorial sea of another state is permissible where rendered necessary by distressor force majeure. See also article 14(3) of the Convention o n the Territorial Sea andContiguous Zone, 1958.
loo However, this principle does not apply if the situation of force rnajetl1.e is due wholly or
partly to the conduct of the state invoking it or the state has assumed the risk of thatsituation occurring, article 23(2). See also Libyan Arab Foreign Investment Company v.
Republic of Burundi 96 ILR, pp. 279, 318.
lo' 5 RIAA, p. 159 (1931); 6 AD, p. 203.
94 See the''STATE R E S P O N S I B I L I T Y

711

action by opponents of the Mexican government. The Commission heldthat failure to prevent the act was due not to negligence but to genuine
inability to take action in the face of a sudden situation.
The emphasis, therefore, is upon the happening of an event that takes
place without the state being able to do anything to rectify the event oravert its consequences. There had to be a constraint which the state wasunable to avoid or to oppose by its own power.'02 In other words, theconduct of the state is involuntary or at least involves no element of freechoice.lo3
The issue of force majeure was raised by France in the Rainbow Warrior arbitration in 1990.''~ It was argued that one of the French agents
repatriated to France without the consent of New Zealand had to be so
moved as a result of medical factors which amounted to force majeure.
The Tribunal, however, stressed that the test of applicability of this doctrine was one of 'absolute and material impossibility' and a circumstancerendering performance of an obligation more difficult or burdensome did
not constitute a case of force m a j e ~ r e . ~ ~ 'Article 24 provides that wrongfulness is precluded if the author of the
conduct concerned had no other reasonable way in a situation of distress ofsaving the author's life or the lives of other persons entrusted to his care.'06
This would cover, for example, the agreement in the 1946 US-Yugoslav
correspondence that only in an emergency would unauthorised entry into
foreign airspace be justified,"' or the seeking of refuge in a foreign port
without authorisation by a ship's captain in storm conditions.lo8
The difference between distress and force majeure is that in the formercase there is an element of choice. This is often illusory since in bothcases extreme peril exists and whether or not the situation provides anopportunity for real choice is a matter of some d i f f i ~ u l t ~ .The
' ' ~ Tribunal
in the Rainbow lVarrior arbitration"' noted that three conditions wererequired to be satisfied in order for this defence to be applicable to the
French action in repatriating its two agents: first, the existence of exceptional circumstances of extreme urgency involving medical and other
lo2

1°"2

Yearbook of the ILC, 1979, vol. 11, p. 133.
ILR, pp. 499, 551.
'05 Ibid., p. 553.

lo3

ILC Commentary 2001,p. 183.

ILC Commentary 2001, p. 189. This would not apply if the situation of distress is due
wholly or partly to the conduct of the state invoking it or the act in question is likely tocreate a comparable or greater peril, article 24(2).
lo' See above, p. 710.
' 0 8 Yearbook of the ILC, 1979, vol. 11, p. 134 and ILC Commentary 2001, pp. 189-90.
""earbookof the ILC, 1979, vol. 11, pp. 133-5.
' l o 82 ILR, pp. 499,555.
lo6

712

I N T E R N A T I O N A L LAW

considerations of an elementary nature, provided always that a prompt
recognition of the existence of those exceptional circumstances is subsequently obtained from the other interested party or is clearly demonstrated; secondly, the re-establishment of the original situation as soon as
the reasons of emergency invoked to justify the breach of the obligation(i.e. the repatriation) had disappeared; thirdly, the existence of a goodfaith effort to try to obtain the consent of New Zealand according to theterms of the 1986 Agreement.''' It was concluded that France had failed
to observe these conditions (except as far as the removal of one of theagents on medical grounds was concerned).
Article 25 provides that necessity may not be invoked unless the act was
the only means for the state to safeguard an essential interest against a'grave and imminent peril' and the act does not seriously impair an essential interest ofthe other state or states or of the international community as
a whole. Further, necessity may not be invoked if the international obligation in question excludes the possibility or the state has itself contributed
to the situation of necessity.'12 An example of this kind of situation is provided by the Torrey Canyoi~,"~where a Liberian oil tanker went agroundoff the UK coast but outside territorial waters, spilling large quantities ofoil. After salvage attempts, the UK bombed the ship. The ILC took theview that this action was legitimate in the circumstances because of a state
It was only after the incident that international agreementsof ne~essity."~were concluded dealing with this kind of situation."'The Tribunal in the Rainbow Warrior case took the view that the defence of state necessity was 'controversial'."G However, the International
Court in the Gabtikovo-Nagymaros Project case considered that it was'a ground recognised in customary international law for precluding thewrongfulness of an act not in conformity with an international obligation', although it could only be accepted 'on an exceptional basis'.'17
See above, p. 694.
' I 2 See ILC Commentary 2001, p. 194.
Cmnd 3246, 1967. See also below, chapter 15, p. 807.
'I4 Yearbook of the ILC, 1980, vol. 11, p. 39. See also the Comnpat~yGeneral of the Orinoco case,
10 RIAA, p. 280.
'I5 See e.g. the International Convention Relating to Intervention on the High Seas in Casesof Oil Pollution Casualties, 1969.
'I6 82 ILR, ~p.499,554-5.The doctrine has also been controversial in academicwritings: see
Yearbook of the ILC, 1980, vol. 11,part 1, pp. 47-9. See also 1.Barboza, 'Necessity (Revisited)geLachs (ed. J.Makarczyk), The
in International Law' in Essays in Honour of J ~ ~ d Manfred
Hague, 1984, p. 27, and R. Boed, 'State of Necessity as a Justification for InternationallyWrongful Conduct: 3 Yale Htlman Rights and Development Journal, 2000, p. 1.
'I7 ICJ Reports, 1997, pp. 7, 40; 116 ILR, p. 1.
"I'I3

STATE R E S P O N S I B I L I T Y

7l3

The Court referred to the conditions laid down in an earlier version of,and essentially reproduced in, article 25 and stated that such conditions
must be cumulatively satisfied.''' In M/VSaiga (No. 2 ), the International
Tribunal for the Law of the Sea discussed the doctrine on the basis of the
ILC draft as approved by the International Court, but found that it did
not apply as no evidence had been produced by Guinea to show that its
essential interests were in grave and imminent peril and, in any event,
Guinea's interests in maximising its tax revenue from the sale of gas oil
to fishing vessels could be safeguarded by means other than extending its
customs law to parts of the exclusive economic zone.'19
Invocation of state resp~nsibility'~~
Article 42 of the ILC Articles stipulates that a state is entitled as an injured
statel2l to invoke122the responsibility of another state if the obligation
breached is owed to that state individually or to a group of states, including that state or the international community as a whole, and the breachof the obligation specially affects that state or is of such a character asradically to change the position of all the other states to which the obligation is owed with respect to the further performance of the obligation.
Responsibility may not be invoked if the injured state has validly waived
the claim or is to be considered as having, by reason of its conduct, validly
acquiesced in the lapse of the ~ 1 a i m .Anyl ~ ~waiver would need to be clear
and unequivocal,12%hile the question of acquiescence would have to be
judged carefully in the light of the particular circumstance^.'^^ Where
several states are injured by the same wrongful act, each state may separately invoke re~ponsibility,'~~and where several states are responsible,
the responsibility of each may be invoked.'27
ICJ Reports, 1997, p. 41.
11' 120 ILR, pp. 143, 191-2.
See e.g. Annacker, 'Part TWO',pp. 214 ff. See also ILC Commentary 2001, p. 294.
12' The provisions concerning the injured state were particularly complex in earlier formulations: see e.g. article 40 of Part I1 of the ILC Draft Articles of 1996. See also Crawford,
Articles, pp. 23 ff.
122 1.e. taking measures of a formal kind, such as presenting a claim against another stateor commencing proceedings before an international court or tribunal but not simply
protesting: see ILC Commentary 2001, p. 294.
12' Article 45. See also ILC Commentary 2001, p. 307.
See the LVaur~(Preliminary Objection) case, ICJ Reports, 1992, pp. 240,247; 97 ILR, p. 1.
12' ICJ Reports, 1992, pp. 253-4.
Article 46. See also ILC Commentary 2001, p. 311.
12' Article 47. See also ILC Commentary 2001, p. 313.
12'

7l4

I N T E R N A T I O N A L LAW

In the Barcelona Traction case, the International Court referred to the
obligations of a state towards the international community as a whole as
distinct from those owed to another state.128Article 48 builds upon thisprinciple and provides that a state other than an injured state may invoke
the responsibility of another state if either the obligation is owed to agroup of states including that state, and is established for the protectionof a collective interest of the group, or the obligation breached is owed
to the international community as a whole. In such cases, cessation of
the wrongful act and assurances and guarantees of non-repetition may beclaimed,'29 as well as reparation.l3'

T h e consequences of internationally wrongful acts
Cessation
The state responsible for the internationally wrongful act is under anobligation to cease that act, if it is continuing, and to offer appropriate assurances and guarantees of non-repetition if circumstances so require.131The Tribunal in the Rainbow Warrior case held that in orderfor cessation to arise, the wrongful act had to have a continuing character and the violated rule must still be in force at the date the order isgiven.132The obligation to offer assurances ofnon-repetition was raisedby
Germany and discussed by the Court in the LaGrand case.133The Court
held that a US commitment to ensure implementation of specific measures was sufficient to meet Germany's request for a general assuranceof n o n - r e p e t i t i ~ n ,while' ~ ~ with regard to Germany's request for specificassurances, the Court noted that should the US fail in its obligation of consular notification, it would then be incumbent upon that state to allow thereview and reconsideration of any conviction and sentence of a German
national taking place in these circumstances by taking account of theviolation of the rights contained in the Vienna Convention on Consular~e1ations.l~'lZ8 ICJ Reports, 1970, pp. 3, 32; 46 ILR, p. 178.

As per article 30.
See ILC Commentary 2001, p. 318.
13' Article 30 and see ILC Co~nmentary
2001, p. 216. See also C. Derman, 'La Cessation de
I'Acte Illicite', Revue Belge de Droit International Public, 1990 I, p. 477.
13' 82 ILR, pp. 499, 573.
ICJ Reports, 2001.
'j4 Ibid., para. 124.
Ibid., para. 125. See, as to consular ~lotification,above, chapter 13, p. 689.
l''

STATE R E S P O N S I B I L I T Y

The basic principle with regard to reparation, or the remedying of a breachof an international obligation for which the state concerned is responsible,'37 was laid down in the Chorzow Factory case, where the Permanent
Court of International Justice emphasised that,
The essential principle contained in the actual notion of an illegal act isthat reparation must, as far as possible, wipe out all the consequences of
the illegal act and re-establish the situation which ~vould,in all probability,
have existed if thdt act had not been committed.""This principle was reaffirmed in a number of cases, including, for example, by the International Court in the Gabtikovo- Nagymaros Projectcase139and the International Tribunal for the Law of the Sea in M/VSaiga( N o . 2 ).I4' The obligation to make reparation is governed in all its aspects
by international law, irrespective of domestic law provisions. l4' Article 34of the ILC Articles provides that full reparation for the injury caused by""eee.g. M. Whiteman, Danzages in Iizterizational Law, TITashington,3 vols., 1 9 3 7 4 3 ;F. A. Mann, 'The Consequences of an International Wrong in International and National
Law', 48 BYIL, 1978, p. 1; de Arechaga, 'International Responsibility', pp. 564 ff., and dehrechaga,'Internatioilal Law in the Past Third of the Century', 159 HR, 1978, pp. 1,
285-7. See also Cheng, General Prirzciples, pp. 233 ff.; Brownlie, System, part VIII, andC. Gray, J~ldicialRemedies i n Internatiorial Law, Oxford, 1987.
See e.g. C. Dominice, 'Observations sur les Droits de 1'Etat Victime d'un Fiat Internationalement Illicite' in Droit Interi~ational(ed. P. Weil), Paris, 1982, uol. I, p. 25, and B.
Graefrath, 'Responsibility and Damage Caused: Relationship between Responsibility andDamage: HR, 1984 11, pp. 19, 7 3 ff.
PCIJ, Series A, No. 17, 1928, pp. 47-8. In an earlier phase of the case, the Court stated
that, 'It is a principle of international law that the breach of an engagement involves anobligation to make reparation in an adequate form. Reparation therefore is the indispensable complement of a failure to apply a convention', PCIJ, Series A, No. 9, 1927, p. 21. See
also the Iranian Hostages case, ICJ Reports, 1980, pp. 3, 45; 61 ILR, pp. 530, 571, where
the Court held that Iran was under a duty to malze reparation to the US.
' j Y ICJ Reports, 1997, pp. 7 , 80; 116 ILR, p. 1.
'41
120 ILR, pp. 143, 199. See also S.D. ,24yers v. Canada 121 ILR, pp. 72,127-8;Aloeboetoe v.
Suriname, Inter-American Court of Human Rights, 1993, Series C, No. 15 at para. 43;
116 ILR, p. 260; Loayza Tarnayo v. Peru (Reparations), Inter-American Court of Human
Rights, 1998, Series C, No. 42 at para. 84; 116 ILR, 17. 388, and Suarez-Rosero v. Ecuador(Reparations),Inter-American Court of Human Rights, 1999, Series C, No. 44 at para. 39;
118 ILR, p. 92, regarding this as 'one ofthe fundamental principles of general internationallaw, repeatedly elaborated upon by the jurisprudence'. See also the decision of 14 March
2003 of an UNCITRAL Arbitral Tribunal in C M E Czech RepublicBV v. Tlze Czech Republic,
Final Award.
14' See e.g. Suarez-Rosero v. Ecuador (Reparations), Inter-American Court of Human Rights,
1999, Series C, No. 44 at para. 42; 118 ILR, p. 92. See also article 32 of the ILC Articles.

'"

'"

7l6

I N T E R N A T I O N A L LAW

the internationally wrongful act shall take the form of restitution, compensation and satisfaction, either singly or in ~ 0 m b i n a t i o n . l ~ ~Restitution in kind is the obvious method ofperforming the reparation,
since it aims to re-establish the situation which existed before the wrongful
act was ~ommitted.'~%ile restitution has occurred in the p a ~ t , ' ~ ? istmore rare today, if only because the nature of such disputes has changed.
A large number of cases now involve expropriation disputes, where it
is politically difficult for the state concerned to return expropriated property to multinational companies.'" Recognising some of these problems,
article 35 provides for restitution as long as and to the extent that it is notmaterially impossible and does not involve a burden out of all proportion
to the benefit deriving from restitution instead of c o m p e n ~ a t i o n . 'In~~
the Rainbow Warrior a r b i t r a t i ~ n , 'New
~ ~ Zealand sought inter alia an
Order that the French Government return its agents from France to theirprevious place of confinement in the Pacific as required by the original
agreement of 9 July 1986. New Zealand termed this request 'restitutio i nintegrum'. France argued that 'cessation' of the denounced behaviour was
the appropriate terminology and remedy, although in the circumstancesbarred by time.148The Tribunal pointed to the debate in the International
Law Commission on the differences between the two concepts'49 and heldthat the French approach was correct.150The obligation to end an illegal
situation was not reparation but a return to the original obligation, that
See also ILC Conlmentary 2001, p. 235 and Suarez-Rosero v. Eczrizdor (Reparations),InterAmerican Court of Human Rights, 1999, Series C, No. 44 at para. 42; 118 ILR, p. 92. Notefurther that interest is payable on any principal sum payable when necessary to achieve
full reparation and will run from the date the principal sum should have been paid until
the date it is paid, article 38 and see ILC Commentary 2001, p. 268. Article 39 provides
that in the determination of reparation, account shall be taken of the contribution to
the injury by wilful or negligent action or omission of the injured state or any person orentity in relation to whom reparation is sought: see also ILC Commentary 2001, p. 275
and the LaGrand case, ICJ Reports, 2001, paras. 57 and 116.
14' See e.g. Annacker, 'Part Two: pp. 221 ff.
144 See e.g. the post-1945 Peace Treaties with Hungary, Romania andItaly. See also the Spanish
Zone of Morocco case, 2 RIAA, p. 617 (1925); 2 AD, 17. 157; the Martini case, 2 RIAA,
p. 977 (1930);5 AD, p. 153; the Palmagero Gold Fields case, 5 RIAA, p. 298 (1931) and theRussian hidemrlity case, 11 RIAA, p. 431 (1912). Brownlie notes that in certain cases, suchas the illegal possession of territory or acquisition of objects of special cultural, historicalor religious significance, restitution may be the only legal remedy, System, p. 210, and theTemple case, ICJ Reports, 1962, pp. 6, 36-7; 33 ILR, pp. 48, 73.
See e.g. the Aminoil case, 66 ILR, pp. 529, 533.
'46 See also ILC Commentary 2001, p. 237.
82 ILR, p. 499.
Ibid., p. 571.
14"ee e.g. Yearbook of the ILC, 1981, vol. 11, part 1, pp. 79 ff.
'jO 82 ILR, p. 572.

'"'"

STATE R E S P O N S I B I L I T Y

7l7

is cessation of the illegal conduct. However, it was held that since the primary obligation was no longer in force (in the sense that the obligation tokeep the agents in the Pacific island concerned expired under the initialagreement on 22 July 1989), an order for cessation of the illegal conduct
could serve no purpose.'"The question of the appropriate reparation for expropriation was discussed in several cases. In the BP case,'j2 the tribunal emphasised that
there wasn o explicit support for the proposition that specific performance, and evenless so restitutio in integrtrm, are remedies of public international law available at the option of a party suffering a wrongful breach by a co-contracting
p a r t y . . . t h e responsibility incurred by the defaulting party for breach ofan obligation to perform a contractual undertaking is a duty to pay damages.. . the concept of restitutio in integrum has been employed merely as
a vehicle for establishing the amount of damages.'"

However, in the Texaco case,'j4 which similarly involved Libyan nationalisation of oil concessions, the arbitrator held that restitution inkind under international law (and indeed under Libyan law) constituted
the normal sanction for non-performance of contractual obligations andthat it is inapplicable only to the extent that restoration of the status quo
ante is impossible."sThis is an approach that in political terms, particularly in international
contract cases, is unlikely to prove acceptable to states since it appears a
violation of sovereignty. The problems, indeed, of enforcing such restitution awards against a recalcitrant state may be imagined.lS6
Monetary compensation is clearly of importance in reparation and isintended to replace the value of the asset confiscated. Article 36(1) provides that in so far as damage caused by an internationally wrongful act isIbid., p. 573. Note that article 10 bis of Part I1 of the ILC Draft Articles had provided thatthe injured state was entitled, ~vlzereappropriate, to obtain assurances or guarantees of
non-repetition of the wrongfi~lact. See now Article 30.
Is2 53 ILR, p. 297. This concerned the expropriation by Libya of BP oil concessions.
lS3 Ibid., p. 347.
'j4 17 ILM, 1 9 7 8 , ~1;. 53 ILR, p. 389.
Is' 17 ILM, 1978, p. 36; 53 ILR, pp. 507-8. In fact the parties settled the dispute by Libya
supplying $152 million worth of crude oil, 17 ILM, 1998, p. 2.
lS6 ~ h e s epoints were explained by the arbitrator in the Liarnco case, 20 ILM, 1981, pp. 1,
63-4; 62 ILR, pp. 141, 198. See also the Aminoilcase, 21 ILM, 1982, p. 976; 66 ILR, p. 519.
See further e.g. A. Fatouros, 'International Law and the International Contract: 74 AJIL,
1980, p. 134. The issue of compensation for expropriated property is discussed further
below, p. 743.
15'

7l8

I N T E R N A T I O N A L LAW

not made good by restitution, the state responsible is under an obligation
to give cornpensati~n."~Article 36(2) states that the compensation to
be provided shall cover any financially assessable damage including lossof profits in so far as this is established.'" The aim is to deal with economic losses actually caused. Punitive or exemplary damages go beyond
the concept of reparation as such'"' and were indeed held in Velasquez
Rodrigutz v. Honduras (Compensation) to be a principle 'not applicablein international law at this time'.l6'Compensation is usually assessed on the basis of the 'fair market value'of the property lost, although the method used to calculate this may
depend upon the type of property involved.16' Loss of profits may also
be claimed where, for example, there has been interference with use andenjoyment or unlawful taking of income-producing property or in somecases with regard to loss of future income.'62
Damage includes both material and non-material (or moral)
damage.'63 Monetary compensation may thus be paid for individual pain
and suffering and insults. In the I'm lone'^^ case, for example, a sumof $25,000 was suggested as recompense for the indignity suffered by
Canada, in having a ship registered in Montreal unlawfully sunk. A further example of this is provided by the France-New Zealand Agreementof 9 July 1986, concerning the sinking of the vessel Rainbow Warrior by
French agents in New Zealand, the second paragraph of which provided
for France to pay the sum of $7 million as compensation to New Zealandfor 'all the damage which it has suffered'.'65 It is clear from the context that
See also the Gabi-ikovo-Nagymaros Project case, ICJ Reports, 1997, pp. 7,81; 116 ILR, p. 1.
In this case, the Court held that both states were entitled to claim and obliged to provide
con~pensation.Accordingly, the parties were calledupon to renounce or cancel all financial
claims and counter-claims. See more generally D. Shelton, Remedies in International
Hurnarl Rights Law, Oxford, 1999, pp. 214 ff.,and C. N. Brower and J. D. Brueschke, The
Iran-United States Clairns Tribunal, The Hague, 1998, chapters 14-18.
See ILC Commentary 2001, p. 243. See also the Report of the International Law Commission on the IVork of its Forty-Fifth Session, Al48110, p. 185.
See generally Whiteman, Darnages, and Arkchaga, 'International Responsibility', p. 571.
See also N. Jorgensen, 'A Reappraisal of Punitive Damages in International Law', 68 BYIL,
1997, p. 247; Yearbook of the ILC, 1956, vol. 11, pp. 211-12, and Annacker, 'Part Two: pp.
225 ff.
16' Inter-American Court of Human Rights, 1989, Series C, No. 7, pp. 34, 52; 95 ILR,
p. 306.
16' See on this the analysis in the ILC Commentary 2001, pp. 255 ff. See also the UNCITRAL
Arbitral Tribunal decision of 14 March 2003 in CME Czech Republic BV r. The Czech
Republic, Final Award.
16' Ibid., pp. 260 ff.
16? See article 31(2).
16' 74 ILR, pp. 241,274.
164 3 RIAA, p. 1609 (1935); 7 AD, p. 203.

'"'"

STATE R E S P O N S I B I L I T Y

7l9

it covered more than material damage.'@ In the subsequent arbitrationin 1990, the Tribunal declared thatan order for the payment of monetary compensation can be made in respectof the breach of international obligations involving.. . serious moral andlegal damage, even though there is n o material damage.16'

However, the Tribunal declined to make an order for monetary compensation, primarily since New Zealand was seeking alternative remedies.''"Satisfaction constitutes a third form of reparation. This relates to nonmonetary compensation and would include official apologies, the punishment of guilty minor officials or the formal acknowledgement of theunlawful character of an act.169The Tribunal in the Ruinbow Wurrior
arbitration"' pointed to the long-established practice of states and international courts of using satisfaction as a remedy for the breach of aninternational obligation, particularly where moral or legal damage had
been done directly to the state. In the circumstances of the case, it concluded that the public condemnation of France for its breaches of treaty
obligations to New Zealand made by the Tribunal constituted 'appropriate
satisfaction'.17' The Tribunal also made an interesting 'Recommendation'that the two states concerned establish a fund to promote close relations
between their respective citizens and additionally recon~n~ended
that theFrench government 'make an initial contribution equivalent to $2 million
to that f ~ n d ' . " ~In some cases, a party to a dispute will simply seek a declaration thatthe activity complained of is
In territorial disputes, for example,
such declarations may be of particular significance. The InternationalI"

See the Arbitral Tribunal in the Rainbow Warrior case, 82 ILR, pp. 499,574.

'" 82 ILR, pp. 499, 575.

Ibid.

See Annacker, 'Part Two', pp. 230 ff.; de Arechaga, 'International Responsibility', p. 572;
Bowett, 'Treaties and State Responsibility' in iWlanges Virally, Paris, 1991, pp. 137,
D. Mr.
144; and Sch~varzenberger,lnternatiorlal Law, p. 653. See also the I'm Alone case, 3 RIAA,
pp. 1609, 1618 (1935); 7 AD, p. 206 and the Corfu Channel case, ICJ Reports, 1949, pp.
4, 35; 16 AD, pp. 155, 167.
17' 82 ILR, p. 499.
"I
82 ILR, p. 577.
'72 Ibid., p. 578.
173 See e.g. Certain German Interests in Polish Upper Silesia, PCIJ, Series A, No. 7, p. 18 (1926)
and the Corftr Channel case, ICJ Reports, 1949, pp. 4, 35; 16 AD, p. 155. Note also that
under article 41 of the European Convention on Human Rights, 1950, the European
Court of Human Rights may award 'just satisfaction', which often takes the form of adeclaration by the Court that a violation of the Convention has taken place: see e.g. theNeurneister case, European Court of Human Rights, Series A, No. 17 (1974); 41 ILR, p.
316. See also the Pauwels case, ibid., No. 135 (1989); the Larny case, ibid., No. 151 (1989)
and the Htlber case, ibid., No. 188 (1990).

720

I N T E R N A T I O N A L LAW

Court, however, adopted a narrow view of the Australian submissions in
the Nuclear Tests case,174an approach that was the subject of a vigorous
dissenting opinion.175Article 37 of the ILC Articles provides that a state
responsible for a wrongful act is obliged to give satisfaction for the injury
thereby caused in so far as it cannot be made good by restitution orcompensation. Satisfaction may consist of an acknowledgement of thebreach, an expression of regret, a formal apology or another appropriate
modality."6 An example of such another modality might be an assurance
or guarantee of non-repetition."'

Serious breaches ofperemptory norms (jus cogens)
One of the major debates taking place with regard to state responsibility
concerns the question of international crimes. A distinction was drawn inarticle 19 of the ILC Draft Articles 1996 between international crimes andinternational delicts within the context of internationally unlawful acts.
It was provided that an internationally wrongful act which results fromthe breach by a state of an international obligation so essential for theprotection of fundamental interests of the international community thatits breach was recognised as a crime by that community as a whole constitutes an international crime. All other internationally wrongful acts weretermed international d e 1 i ~ t s . lExamples~~
of such international crimes
provided were aggression, the establishment or maintenance by force ofcolonial domination, slavery, genocide, apartheid and massive pollution
ofthe atmosphere or ofthe seas. However, the question as to whether states
can be criminally responsible has been highly c o n t r ~ v e r s i a l .some' ~ ~ haveargued that the concept is of no legal value and cannot be justified inprinciple, not least because the problem of exacting penal sanctions fromstates, while in principle possible, could only be creative of instability.'s0'74 IC J Reports, 1974, p. 253; 57 ILR, p. 398.
175

ICJ Reports, 1974, pp. 312-19; 57 ILR, p. 457.

176 See ILC Commentary 2001, p. 263. Satisfactioil is not to be disproportioilate to the injury

and not in a form which is humiliating to the responsible state, article 37(3).
177 See above, p. 714.

M. Mohr, 'The ILC's Distinction between "International Crimes" and "International
DelictsXandIts Implications' in Spinedi and Simma,UhTCodificatioiz,p.115, and K . Marek,'Criminalising State Responsibility', 14 Revue Belge de Droit International 1978-9, p. 460.
See e.g. Oppeilheim's Inte~xationalLaw, pp. 533 ff. See also G. Gilbert, 'The Criminal
Responsibility of States', 39 ICLQ, 1990, p. 345, and N. Jorgensen, The Rexponsibility ofStates for International Crimes, Oxford, 2000, As far as individual criminal respoilsibility
is concerned, see above, chapter 5, p. 234 and chapter 12, pp. 592 ff.
lS0 See e.g. I. Brownlie, Iriterilational Latv and the Use of Force by States, Oxford, 1963, pp.
150-4.
""ee

STATE R E S P O N S I B I L I T Y

721

Others argued that, particularly since 1945, the attitude towards certain
crimes by states has altered so as to bring them within the realm of international law."' The Rapporteur in his commentary to draft article 19
pointed to three specific changes since 1945 in this context to justify its
inclusion: first, the development of the concept of jus cogens as a set ofprinciples from which no derogation is permitted;'82secondly, the rise ofindividual criminal responsibility directly under international law; andthirdly, the UN Charter and its provision for enforcement action against
a state in the event of threats to or breaches of the peace or acts of aggression.1s3However, the ILC changed its approachls4 in the light of thecontroversial nature of the suggestion and the Articles as finally approvedin 2001 omit any mention of international crimes of states, but rather
seek to focus upon the particular consequences flowing from a breach ofobligations erga omnes and of peremptory norms (jus cogens).lfi5
Article 41 provides that states are under a duty to co-operate to bringto an end, through lawful means, any serious breachls6 by a state of an
obligation arising under a peremptory norm of international law''' andnot to recognise as lawful any such situation.ls8
Diplomatic protection and nationality of
The doctrine of state responsibility with regard to injuries to nationals
rests upon twin pillars, the attribution to one state ofthe unlawful acts andomissions of its officials and its organs (legislative, judicial and executive)
lS1 See e.g, de Arkchaga, 'International L a d

See e.g. article 53 of the Vienna Convention on the Law of Treaties, 1969 and below, p. 850.
o f t h e ILC, 1976, vol. 11, pp. 102-5. Note also the Report of the International
Law Commission, 1994, Al49110, pp. 329 ff. and ibid., 1995, Al50110, pp. 93 ff.
See Crawford, Articles, pp. 17 ff. for a critical analysis of draft article 19 and a discussionof su~bsequentdevelopments.
See above, chapter 3, p. 116.
l"'Article 40(2) describes a breach as serious if it involves a gross or systematic failure by the
responsible state to fulfil the obligation.
'" Examples given of peremptory norms are the prohibitions of aggression, slavery and theslave trade, genocide, racial discrimination and apartheid, and torture, and the principleof self-determination: see ILC Commentary 2001, pp. 283-4.
lS8 See, as to examples of non-recognition, above, chapter 8, p. 390. Article41(3) is in the forillof a saving clause, providing that the article is without prejudice to other consequencesreferred to in Part Two of the Articles and to such further consequences that such a breach
may have under international law.
lS9 See e.g. Oppenheirn's International Law, p. 511; Nguyen Quoc Dinh et al., Droit Iriternational Public, p. 808, and Brownlie, Principles, pp. 482 ff. See also F. Orrego Vicuiia,'Interim Report on the Changing Law of Nationality of Claims: International Law Association, Report of the Sixty-Ninth Conference, London, 2000, p. 631.
18'

lS3 Yearbook

722

I N T E R N A T I O N A L LAW

and the capacity of the other state to adopt the claim of the injured party.
Indeed article 44 of the ILC Articles provides that the responsibility of astate may not be invoked if the claim is not brought in accordance withany applicable rule relating to nationality of claims.lgO
Nationality is the link between the individual and his or her state as regards particular benefits and obligations. It is also thevitallinkbetween theindividual and the benefits of international law. Although internationallaw is now moving to a stage whereby individuals may acquire rights freefrom the interposition of the state, the basic proposition remains that ina state-oriented world system, it is only through the medium of the statethat the individual may obtain the full range of benefits available underinternational law, and nationality is the key.lgl
Article 1 of the ILC's Draft Articles on Diplomatic ~rotectionl" provides that,
Diplomatic protection consists of resort to diplomatic action or othermeans of peaceful settlement by a state adopting in its own right the causeof its national in respect of an injury to that national arising from an internationally wrongful act of another state.

A state is under a duty to protect its nationals and it may take up theirclaims against other states. However, there is under international law no
obligation for states to provide diplomatic protection for their nationals
abroad.'" In addition, once a state does this, the claim then becomes that
ofthe state. This is a result ofthe historical reluctance to permit individuals
the right in international law to prosecute claims against foreign countries,
for reasons relating to state sovereignty and non-interference in internalaffairs.
This basic principle was elaborated in the Mavrommatis Palestine Concessions case.lg4The Permanent Court of International Justice pointed out
that:
See ILC Commentary 2001, p. 304.
See further on nationality, above, chapter 12, p. 584. Note also the claim for reparations
made by Croatia in its application of 2 J~lly1999 to the International Court against
Y~lgoslaviain the Application of the Genocide Converltion case both on behalf of the stateand 'as parens patriae for its citizens: Application, pp. 20-1.
' 9 2 As adopted in 2002: see Report of the ILC on its 54th Session, Al57110,2002, p. 167.
See e.g. HMHK v. Netllerlands 94 ILR, p. 342 and Comercial F S A v. Council ofMinisters
88 ILR, p. 691.
PCIJ, Series A, No. 2, 1924, p. 12. See the Panevezys-Saldt~tiskiscase, PCIT, Series AIB, No.
76; 9 AD, p. 308. See also Vattel, who noted that 'whoever ill-treats a citizen indirectly
injures the state, which must protect that citizen', The Law ofLVations,1916 trans., p. 136.
19'

19'

'"
'"

STATE R E S P O N S I B I L I T Y

723

By taking up the case of one of its subjects and hy resorting to diplomatic
action or international judicial proceedings 011 his behalf, a state is in reality
asserting its own rights, its right to ensure, in the person of its subjects,
respect for the rules of international law.. .

Once a state has taken up a case on behalf of one of its subjects before aninternational tribunal, in the eyes of the latter the state is sole ~ 1 a i r n a n t . l ~ ~It follows that the exercise of diplomatic protection cannot be regarded asintervention contrary to international law by the state concerned. Coupledwith this right of the state is the constraint that a state may in principle
adopt the claims only of its own nationals. Diplomatic protection may
not extend to the adoption of claims of foreign subjects,'" although it
has been suggested 'as an exercise in progressive development of the law'that a state may adopt the claim of a stateless person or refugee who at thedates of the injury and presentation of the claim is lawfully and habituallyresident in that state.19' Such diplomatic protection is not a right of thenational concerned, but a right of the state which it may or may notchoose to exercise.'" It is not a duty incumbent upon the state underinternational law. As the Court noted in the Barcelona Traction case.
within the limits prescribed by international law, a state may exercise diplomatic protection by whatever means and to whatever extent it thinks fit,
for it is its own right that the state is asserting. Should the natural or
legal person o n whose behalf it is acting consider that their rights are notadequately protected, they have n o remedy in international law.1yy

The UK takes the view that the taking up of a claim against a foreignstate is a matter within the prerogative of the Crown, but various principles are outlined in its publication, 'Rules regarding the Taking up ofInternational Claims by Her Majesty's Government', stated to be based
See e.g. Lonrho Exports Ltd v. ECGD [I9961 4 All ER 673, 687; 108 ILR, p. 596.
ow ever, note article 20 of the European Community Treaty, under which every person
holdingthe nationality ofa member state (andthus a citizen ofthe European Union underarticle 17) is entitled to receive diplomatic protection by the diplomatic or consularauthority of any member state on the same conditions as nationals of that state whenin the territorpof a third state where the country ofhis or her nationality is not represented.
lY7 See article 7 of the Draft Articles on Diplomatic Protection, ILC 54th Report, p. 188.
Note the special position of a national working for an international organisation, where
there may be a danger to the independence of the official where diplomatic protection is
exercised: see e.g. the Reparations case, ICJ Reports, 1949, pp. 174, 183.
lYs See e.g. the Interhandel case, ICJ Reports, 1957, pp. 6 , 27; Administrative Decision No. V
7 R I M , p. 119; 2 AD, pp. 185, 191 and US v. Dulles222 F.2d 390. See also DUSPIL, 1973,
pp. 332-4.
ICJ Reports, 1970, pp. 3 , 4 4 ; 46 ILR, p. 178.
19'

lg6

'"

724

I N T E R N A T I O N A L LAW

on international law.200This distinguishes between formal claims and informal representations. In the former case, Rule VIII provides that, 'If, in
exhausting any municipal remedies, the claimant has met with prejudiceor obstruction, which are a denial of justice, HMG [Her Majesty's Government] may intervene on his behalf in order to secure justice.' In thelatter case, the UK will consider making representations if, when all legal
remedies have been exhausted, the British national has evidence of a miscarriage or denial of justice. This may apply to cases where fundamental
violations of the national's human rights had demonstrably altered thecourse of justice. The UK has also stated that it would consider making
direct representations to third governments where it is believed that they
were in breach of their international ~ b l i g a t i o n s . ~ ~ 'The issue was discussed by the Court of Appeal in Abbasi v. Secretaryof
It was noted that there was no authority which supported theimposition of an enforceable duty on the UK authorities to protect its
citizens; however, the Foreign Office had a discretion whether to exercise
the right it had to protect British citizens and had indicated what a citizen
may expect of it through, for example, the Rules regarding the Taking
up of International Claims. The Court concluded that, in view of theRules and official statements made,203there was a 'clear acceptance by thegovernment of a role in relation to protecting the rights of British citizens
abroad, where there is evidence of miscarriage or denial of justice:204
While the expectations raised by such Rules and statements were limited
and the discretion wide, there was no reason why any decision or inaction
by the government should not be judicially reviewable under English law,
if it could be shown that such decision or inaction were irrational orcontrary to legitimate expectation. It might thus be said that there existed
an obligation to consider the position of any particular British citizen andconsider the extent to which some action might be taken on his behalf.205
The scope of a state to extend its nationality206to whomsoever it wishes
is unlimited, except perhaps in so far as it affects other states. Article 1 of
the Hague Convention on Certain Questions Relating to the Conflict of
Nationality Laws, 1930, for example, provides that,"' See 37 ICLQ, 1988, p. 1006 and UKMIL, 70 BYIL, 1999, p. 526.
UKMIL, 70 BYIL, 1999, pp. 528-9.
[2002] EMrCA Civ. 1598.
*''See UKMIL, 70 BYIL, 1999, pp. 528-9.
201

'04

'O'

[2002] EllTCACiv. 1598, para. 92.

'05

Ibid., para. 106.

*06 Whether acquired by birth, descent, succession of states, naturalisation, or in anothermanner not inconsistent with international law: see article 3 of the Draft Articles on
Diplomatic Protection, ILC 54th Report, p. 173.

726

I N T E R N A T I O N A L LAW

that the person was more closely connected with that state than with anyother.210
Having brought out these concepts, the Court emphasised the tenuous nature of Nottebohm's links with Liechtenstein and the strength of
his connection with Guatemala. Nottebohm had spent only a very shortperiod of time in Liechtenstein and one of his brothers lived in Vaduz.
Beyond that and the formal naturalisation process, there were no otherlinks with that state. On the other hand, he had lived in Guatemala forsome thirty years and had returned there upon obtaining his papers from
Vaduz. Since the Liechtenstein nationality 'was granted without regard to
the concept.. . adopted in international relations' in the absence of any
genuine connection, the Court held that Liechtenstein was not able toextend its diplomatic protection to Nottebohm as regards ~ u a t e m a l a . ~ ~ ~The case has been subject to criticism relating to the use of the doctrineof 'genuine connection' by the Court. The doctrine had until then beenutilised with regard to the problems of dual nationality, so as to enable adecision to be made on whether one national state may sue the other onbehalf of the particular national. Its extension to the issue of diplomatic
protection appeared to be a new move altogether.212
The ILC in its Draft Articles on Diplomatic Protection adopted in
2002 did not require establishment of a genuine link as a requirementof nationality'13 and the Commentary argues that the Nottebohm caseshould be limited to its facts alone.214
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, although
this latter point may depend upon a variety of other facts, for example
any agreement between the contending states as regards the ~ l a i m . ~ ""O

ICJ Reports, 1955, p. 23; 22 ILR, p. 359.

" ' ICJ Reports, 1955, pp. 25-6; 22 ILR, p. 362.

"'See generally, Brownlie, Principles, chapter 19, and R. Y. Jennings, 'General Course on
Principles of International Law', 121 HR, 1967, pp. 323,459.

"' See article 3, ILC 54th Report, p. 173.
'I4

'I5

Ibid., pi?. 175-6. See also the Flegenlleinler claim, 14 RIAA, p. 327 (1958); 25 ILR,
p. 91.
See e.g. Borchard, Diplomatic Protection, pp. 660 ff.; Whiteman, Digest, vol. VIII, 1967,
pp. 1243-7, and the Nottebohttl case, ICT Reports, 1955, p. 4; 22 ILR, p. 349. See also theview of the US State Department that it has consistently declined to espouse claims whichhave not been continuously owned by US nationals: see 76 ATIL, 1982, pp. 836-9, andthe Rules regarding International Claims issued by the UK Foreign and Commonwealth
Office, 1985, to the same effect: see 37 ICLQ, 1988, p. 1006. See also I. Sinclair, 'Nationalityof Claims: British Practice: 27 BYIL, 1950, p. 125. Note that article 4(2) of the ILC Draft
on Diplomatic Protection, 2002 provides that protection may be offered even where theSTATE R E S P O N S I B I L I T Y

727

Where an individual possesses dual or multiple nationality, any stateof which he is a national may adopt a claim of his against a third stateu6
and there appears no need to establish a genuine link between the stateof nationality and the dual or multiple national.217In the case of morethan one state of nationality, the rule appears to be that the state withwhich he has the more effective connection may be able to espouse his
claim as against the other state. In the Mergt
it was emphasisedthat the principle based on the sovereign equality of states, which excludes diplomatic protection in the case of dual nationality, must yield
before the principle of effective nationality whenever such nationality
is that of the claimant state. However, where such predominance is notproved, there would be no such yielding. In other words, the test for
permitting protection by a state of a national against another state ofwhich he is also a national is the test of effectiveness. This approach
was reaffirmed by the Iran-US Claims Tribunal, where the Full Tribunal
held that it had jurisdiction over claims against Iran by a dual national
when the 'dominant and effective nationality' at the relevant time was~ m e r i c a n .Article~ ' ~ 6 of the ILC Draft Articles on Diplomatic Protection
provides that a state of nationality may not exercise diplomatic protection in respect of a person against a state of which the person is also anational unless the nationality of the former state is predominant, bothat the time of the injury and at the date of the official presentation of theclaim.220
As far as a corporation is concerned, it appears that there must be sometangible link between it and the state seeking to espouse its claim. Different
person was not a national at the date of the injury, p r o ~ i d e dhe was so at the presentationof the claim and that he had lost his former nationality and gained the current one forreasons unrelated to the claim, ILC 54th Report, p. 178.
" 6 14 R I M , p. 236 (1955); 22 ILR, p. 443. See also the Canevaro case, 11 RIA&, p. 397(1912). See article S(1) of the ILC Draft Articles on Diplomatic Protection, ILC 54th
Report, p. 181. See also article 3 of the Hague Convention on Certain Questions Relating
to the Conflict of Nationality Laws, 1930.
See e.g. the Salem case, 2 RIAA, p. 1161 (1932); 6 AD, p. 188; the Mergi claim, 14 R I M ,p. 236 (1955); 22 ILR, 17. 443 and Dallal v. Iran 3 Iran-US CTR, 1983, p. 23.
'I8 14 RIAA, p. 236 (1955);22 ILR, p. 443. See also the Canevaro case, 11 RIAA, p. 397 (1912).
Cf. the Saleni case, 2 RIAA, p. 1161 (1932); 6 AD, p. 188.
'Iy ~slattlicRepublic oflratz v. USA, Case No. Al18, 5 Iran-US CTR, p. 251; 75 ILR, p. 176;
Esphahanian v. Bartk Tejarat2 Iran-US CTR, 17. 157; 72 ILR, p. 478, and Malek v. Islarnic
Republic ofIran 19 Iran-US CTR, p. 48. See also Saghi v. Islarrlic Republic ofIran,87 AJIL,
1993, p. 447 and the decision of the Canadian Supreme Court in Schavernoch v. Foreign
Claims Commission 1 SCR 1092 (1982);90 ILR, p. 220. Note, however, the rather different
practice adopted under ICSID: see below, chapter 18, p. 943.
220 ILC 54th Report, p. 183.

"'

728

I N T E R N A T I O N A L LAW

cases have pointed to various factors, ranging from incorporation of thecompany in the particular state to the maintenance of the administrative
centre of the company in the state and the existence of substantial holdings
by nationals in the company.221
The Court in the Barcelona Traction case222remarked that the traditional rule gave the right of diplomatic protection of a corporation to thestate under the laws of which it is incorporated and in whose territory
it has its registered office. Any application of the Nottebohm doctrine of
the 'genuine connection' was rejected as having no general acceptance.
Nevertheless, it remains true that some meaningful link must bind thestate to the company which seeks its protection. The position as regards
the shareholders in a company was discussed in that case. It concerneda dispute between Belgium and Spain relating to a company establishedin 1911 in Canada, which was involved in the production of electricity in
Spain and the majority ofwhose shares were owned by Belgian nationals.
After the Second World War, the Spanish authorities took a number offinancial measures which resulted in harm to the company, and in 1948
it was declared bankrupt. The case concerned a Belgian claim in respectof injury to the shareholders, who were Belgian nationals, because of thesteps that Spain had adopted. Spain replied by denying that Belgium had
any standing in the case since the injury had been suffered by the company
and not the shareholders.
The Court rejected the Belgian claim on the grounds that it did nothave a legal interest in the matter. Although shareholders may suffer ifwrong is done to a company, it is only the rights of the latter that havebeen infringed and thus entitle it to institute action. If, on the other hand(as did not happen here), the direct rights of the shareholders were affected, for example as regards dividends, then they would have an independent right of action; but otherwise, only if the company legally ceased toexist.
The Court emphasised that the general rule of international law statedthat where an unlawful act was committed against a company representing
foreign capital, only the national state of the company could sue. In thiscase Canada had chosen not to intervene in the dispute. To accept the ideaof the diplomatic protection of shareholders would, in the opinion of the"' See e.g. Bro~vnlie,Princzples, pp. 486-95, and Scl~warzenberger, International Law,
pp. 387-412. See also Solu Tiles Inc. v. IslarnicReptlblic ofIran 83 ILR, p. 460.

"* ICJ Reports, 1970, pp. 3, 42; 46 ILR, pp. 178,216.

STATE R E S P O N S I B I L I T Y

729International Court of Justice, result in the creation of an atmosphere ofconfusion and insecurity in economic relations especially since the sharesof international companies are 'widely scattered and frequently change
hands'.22"
The United Kingdom, according to the set of Rules regarding the Taking
up of International Claims produced by the Foreign Office in 1 9 8 5 , may~~~intervene in Barcelona Traction situations where a national has an interest
as a shareholder or otherwise, and the company is defunct, although
this is regarded as an exceptional instance. The United Kingdom may alsointervene where it is the national state of the company that activelywrongs
the company in which a United Kingdom national has an interest as ashareholder or in some other respect; otherwise the UK would normallytake up such a claim only in concert with the government of the stateof incorporation of the company.225Further, practice varies as between
states226and under different treaty regimes."'
The position with regard to ships is rather different. The International
Tribunal for the Law of the Sea in M/V Saiga (No. 2) emphasised that
under the Law of the Sea Convention, 1982 it is the flag state that bears
the rights and obligations with regard to the ship itself so that 'the ship,
every thing on it and every person involved or interested in its obligations
are treated as an entity linked to the flag state. The nationalities of these
persons are not rele~ant.'~""' ICJ Reports, 1970, p. 49; 46 ILR, p. 223. See also the Separate Opinion of Judge Oda,
the Elettronica Sicula case, US v. Italy, ICJ Reports, 1989, pp. 15, 84; 84 ILR, pp. 311,
390.
" q e e above, p. 723. The increase in the number of bilateral investment treaties in the
1970s may be partly explained as the response to the post-Barcelona Traction need to protect shareholders. See e.g. M. Sornarajah, 'State Responsibility and Bilateral Investment
Treaties', 20 Journal of World Trade Law, 1986, pp. 79, 87.
See also the position adopted by the UK in the III Finance Ltd v. Aegis Conxumer FinanceInc. litigation before the US courts to the effect that entities incorporated in any territory
for which the UK is internationally responsible are the UK citizens for the purposes of
the US federal alienage iurisdiction statute in question, UKMIL, 71 RYIL, 2000, pp. 552
Sf., and similarly in the Chase Manhattan Bank v. Traffic Streani (BVI) Infrastructure Ltd
litigation, UKMIL, 72 AYIL, 2001, p. 603.
'26 See e.g. IT. K. Geck, 'Diplomatic Protection' in Encyclopedia of Public International Law(ed. R. Bernhardt), Amsterdam, 1992, vol. X, p. 1053.
See e.g, the Algiers Declaration concerning the settleillent of US-Iranian claims, 20 ILR,
1981, p. 230; the Convention on the Settlement of Investment Disputes, 1965, article 25 and Third US Restatement of Foreign Relations Law, \hrashington, 1987, vol. I,
pp. 127-8.
120 ILR, pp. 143, 184-5 and see e.g. article 292 of the Law of the Sea Convention, 1982.

"'

'"
"*

730

I N T E R N A T I O N A L LAW

The exhaustion of locul remedies 229
Customary international law provides that before international proceedings are instituted or claims or representations made, the remedies provided by the local state should have been exhausted.230There is a theoretical dispute as to whether the principle of exhaustion of local remedies is a
substantive or procedural rule or some form of hybrid concept,231but the
purpose of the rule is both to enable the state to have an opportunity toredress the wrong that has occurred within its own legal order and to reduce the number of international claims that might be brought. Anotherfactor, of course, is the respect that is to be accorded to the sovereignty
and jurisdiction of foreign states by not pre-empting the operation of
their legal systems. Article 44 of the ILC Articles on State Responsibility
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.232
The rule was well illustrated in the Ambatielos arbitration z 3 between
Greece and Britain. The former brought proceedings arising out of acontract signed by Ambatielos, which were rejected by the tribunal since
the remedies available under English law had not been fully utilised. In
particular, he had failed to call a vital witness and he had not appealed to
the House of Lords from the decision of the Court of Appeal.
The requirement to exhaust l ~ c a l ~ ~ % e m e dapplies
ies
only to available
effective remedies. It will not be sufficient to dismiss a claim merely because the person claiming had not taken the matter to appeal, where theappeal would not have affected the basic outcome of the case. This was
See further, above, chapter 6, p. 254. See also the Panevezys Railway case, PCIJ, Series AIB,
No. 76 (1939); 9 AD, p. 308; Whiteman, Digest, vol. 111, p. 1558; Borchard, DiplomaticProtection,pp. 817-18;A.A. Canqado Trindade, TheApplication oftheRule ofExllaustion of
Local Rernedies in International Law, Cambridge, 1983; C. F. Amerasinghe, LocalRemedies
in Iilterilational Law, Cambridge, 1990, and J. Kokott, 'Interim Report on the Exhaustionof Local Remedies', International Law Association, Report of the Sixty-Ninth Conference,
London, 2000, p. 606.
230 See e.g. Exparte Ferhut Butt 116 ILR, pp. 607, 614-15 (High Court) and 619 (Court of
"9

*"
'3'
2'4

Appeal). The requirement also arises in a number of treaties: see e.g. article 35, European
Convention on Human Rights; article 46, Inter-American Convention on Human Rights;
article 5, Optional Protocol I, International Covenant on Civil and Political Rights; andarticle 295 of the Law of the Sea Convention.
See e.g. the discussions in Yearbook of the ILC, 1977, vol. 11, part 2, pp. 30 ff. and Report of the ILC on its 54th Session, 2002, pp. 131 ff. See also Kokott, 'Interim Report',
pp. 612 ff.
ILC Commentary 2001, p. 305.
233 12 RIAA, p. 83 (1956); 23 ILR, p. 306.
The terms domestic or municipal remedies are also used.

STATE RESPONSIBILITY

73l

stressed in the Finnish Ships arbitration2" where shipowners brought aclaim before the Admiralty Transport Arbitration Board, but did not appeal against the unfavourable decision. It was held that since the appeal
could only be on points of law, which could not overturn the vital findingof fact that there had been a British requisition of ships involved, any appeal would have been ineffective. Accordingly the claims ofthe shipowners
would not be dismissed for non-exhaustion of local remedies.
In the Interhandel case,236the United States seized the American assets
of a company owned by the Swiss firm Interhandel, in 1942, which wassuspected ofbeing under the control of a German enterprise. In 1958, afternine years of litigation in the US courts regarding the unblocking of the
Swiss assets in America, Switzerland took the matter to the International
Court of Justice. However, before a decision was reached, the US Supreme
Court readmitted Interhandel into the legal proceedings, thus disp osing of
Switzerland's argument that the company's suit had been finally rejected.
The Court dismissed the Swiss government's claim since the local remedies
available had not been exhausted. Criticism has been levelled against thisjudgment on the ground that litigation extending over practically ten years
could hardly be described as constituting an 'effective' remedy. However,the fact remains that the legal system operating in the United States had
still something to offer the Swiss company even after that time.
The local remedies rule does not apply where one state has been guilty
of a direct breach ofinternational law causing immediate injury to anotherstate, as for instance where its diplomatic agents are assaulted. But it does
apply where the state is complaining of injury to its nationals.237The
local remedies rule may be waived by treaty stipulation, as for example
in Article V of the US-Mexico General Claims Convention of 1923 andArticle XI of the Convention on International Liability for Damage causedby Space Objects, 1972.
The issue of local remedies was clarified in the Elettronica Sicula SpA( E L S I ) C ~ Swhich~ , ~ ~referred~to the concept as 'an important principle
'j5

2'6

'37

'''

2 RIAA, p. 1479 (1934); 7 AD, p. 231.
ICJ Reports, 1959, p. 6; 27 ILR, p. 475. The Court declared that the 'rule that local remedies
must be exhausted before international proceedings may be instituted is a well-establishedprinciple of customary internationalla~7:ICT Reports, 1959, p. 27; 27 ILR, p. 490. See also
Rules VII and VIII ofthe International Claims Rules ofthe FCO, above, p. 724; Pleadings,
Israel v. Bulgaria, ICJ Reports, 1959, pp. 531-2, and T. Meron, 'The Incidence of theRule of Exhaustion of Local Remedies', 25 BYIL, 1959, p. 95. Note, in addition, the North
American Dredging Co. claim, 4 RIAA, p. 26 (1926); 3 AD, p. 4.
See e.g. the Heathrotv Airport Uxer Charges Arbitration, 102 ILR, pp. 215,277 ff.
ICJ Reports, 1989, p, 15; 84 ILR, p. 311.

732

I N T E R N A T I O N A L LAW

of customary international
The case concerned an action broughtby the US against Italy alleging injuries to the Italian interests of two US
corporations. Italy claimed that local remedies had not been exhausted,while the US argued that the doctrine did not apply since the case wasbrought under the Treaty of Friendship, Commerce and Navigation, 1948
between the two states which provided for the submission of disputes
relating to the treaty to the International Court, with no mention of local
remedies. The Chamber of the Court, however, firmly held that while
the parties to an agreement could if they so chose dispense with the local
remedies requirement in express terms, it 'finds itself unable to accept thatan important principle of customary international law should be held tohave been tacitly dispensed ~ i t h ' . ~ In
" other words, the presumptionthat local remedies need to be exhausted can only be rebutted by express
provision to the contrary.
The Chamber also dealt with a claim by the US that the doctrine did
not apply to a request for a declaratory judgment finding that the treaty
in question had been violated. This claim in effect was based on the viewthat the doctrine would not apply in cases of direct injury to a state. The
Chamber felt unable to find in the case a dispute over alleged violation of
the treaty resulting in direct injury to the US that was both distinct fromand independent of the dispute with regard to the two US corporations.241
It was stressed that the matter 'which colours and pervades the US claim
as a whole' was the alleged damage to the two US corporations.242In thelight of this stringent test, it therefore seems that in such mixed claims
involving the interests both of nationals and of the state itself one must
assume that the local remedies rule applies.
The claim that local remedies had not in fact been exhausted in the casebecause the two US corporations had not raised the treaty issue before the
Italian courts was rejected. It was held that it was sufficient ifthe essence ofthe claim had been brou g ht before the competent tribunals. Accordingly,
identity of claims as distinct from identity of issues is not required. The
Chamber was not convinced that there clearly remained some remedy
which the corporations, independently of their Italian subsidiary (ELSI),
ought to have pursued and exhausted.243
2'9

ICI Reports, 1989,p. 42.

240

Ibid.,pp. l5,42; 84 ILR, pp. 31 1, 348.

*" ICJ Reports, 1989, pp. 42-4; 84 ILR, pp. 348-50.

'" ICJ Reports, 1989, p. 43; 84 ILR, p. 349.
24'

ICJ Reports, 1989, pp. 46-8; 84 ILR, pp. 352-4. See e.g. M. H. Adler, 'The Exhaustion of the Local Remedies Rule After the International Court of Justice's Decision in
ELSI: 39 ICLQ, 1990, p. 641, and F. A. Manil, 'Foreign Iilvestinent in the International

STATE R E S P O N S I B I L I T Y

733

The treatment of aliens244
The question of the protection of foreign nationals is one of those issues
in international law most closely connected with the different approaches
adopted to international relations by the Western and Third World nations. Developing countries, as weli as communist countries formerly,
have long been eager to reduce what they regard as the privileges accorded
to capitalist states by international law. They lay great emphasis upon thesovereignty and independence of states and resent the economic influenceof the West. The Western nations, on the other hand, have wished to protect their investments and nationals abroad and provide for the securityof their property.
The diplomatic protection of nationals abroad developed as the number of nationals overseas grew as a consequence of increasing trading activities and thus the relevant state practice multiplied. In addition, since
the US-UK Jay Treaty of 1794 numerous mixed claims commissions were
established to resolve problems of injury to aliens,245while a variety of national claims commissions were created to distribute lump sums received
from foreign states in settlement of claims.246Such international and national claims procedures together with diplomatic protection therefore
enabled nationals abroad to be aided in cases of loss or injury in state
responsibility situation^.^^'
Court of rustice: The ELSI Case: 86 ATIL, 1992, pp. 92, 101-2. See also the IM/V Saiga(No. 2) case, 120 ILR, pp. 143, 182-4 and the LaGrand case, ICJ Reports, 2001, paras.
58-60.
'44 See references in footnote 1. See also Guha Roy, 'Is the Law of Responsibility of States
for Injury to Aliens a Part of Universal International Law?', 55 AJIL, 1961, p. 863;
A. Fatouros, 'International La~vand the Third World: 50 Virginia Law Review, 1964,
p. 783; I. Shihata, Legal Treatnzent of Foreign Investinent, Dordrecht, 1993; Oppenheim'sInternational Law, p. 903, and Third USRestaternent ofForeign Relations Law, Washington,
1987, vol. 11, p. 184. See also the Principles Concerning Admission and Treatment of
Aliens adopted by the Asian-African Legal Consultative Committee at its fourth session:
http://wcnv.aalco.orgiPrinciple%20Con~eatmentYo
20of %2Oaliens.htm.
245 See e.g. A. M. Stuyt, Survey ofInternationa1 Arbitrations, 1794-1889,3rd edn, Dordrecht,
1990.
246 See e.g. International Clainls (eds. R. B. Lillich and B. Mreston), Charlottesville, 1982,
and R. B. Lillich and B. Weston, International Claims: Their Settlements by Lump-Sum
Ageenlents, Charlottesville, 2 vols., 1975. See also the US-People's Republic of China
Claims Settlement Agreement of 1979, DUSPIL, 1979, pp. 1213-15, and Mihiteman,
Digest, vol. VIII, pp. 933-69.
247 Note the establishment of the UN Compensation Coinmission following the ending of
the Gulf War in 1991 to enable the settlement of claims arising out of that conflict: see
below, chapter 22, p. 1131.

734

I N T E R N A T I O N A L LAW

The relevant standard of treatment
The developed states of the West have argued historically that there exists an 'international minimum standard' for the protection of foreign
nationals that must be upheld irrespective of how the state treats its own
nationals, whereas other states maintained that all the state need do is treat
the alien as it does its own nationals (the 'national treatment standard').
The reason for the evolution of the latter approach is to be found in theincreasing resentment of Western economic domination rather than in
the necessary neglect of basic standards of justice. The Latin American
states felt, in particular, that the international minimum standard concept
had been used as a means of interference in internal affairs.'" Accordingly, the Calvo doctrine was formulated. This involved a reaffirmation of
the principle of non-intervention coupled with the assertion that aliens
were entitled only to such rights as were accorded nationals and thus had
to seek redress for grievances exclusively in the domestic arena.249It was
intended as a shield against external interference. The international standard concept itself developed during the nineteenth century and received
extensive support in case-law.
r
for example, where the American superintendent ofIn the ~ e ecase,250
a mine in Mexico had been killed, the Commission held 'that the proprietyof governmental acts should be put to the test of international standards',
while in the Certain German Interests in Polish Upper Silesia case,''' the
Court recognised the existence of a common or generally accepted international law respecting the treatment of aliens, which is applicable tothem despite municipal legislation. In the Garcia case,252the US-Mexican
Claims Commission emphasised that there existed an international standard concerning the taking of human life, and in the Roberts claim,253
reference was made to the test as to whether aliens were treated in accordance with ordinary standards of civilisation. If the principle is clear,
the contents or definition of that principle are far from clear. In the Neer
claim,254the Commission stated that the treatment of an alien, in order
to constitute an international delinquency,
e.g. Guha Roy, 'Law of Responsibility'; J. Castafieda, 'The Underdeveloped Nations
and the Developillent of International Law', 15 International Organisation, 1961, p. 38,
and R. P. Anand, ~VewStates and Internatioilal Law, Delhi, 1972.
'49 See e.g. Lillich, 'Duties: p. 349.
4 RIAA, p. 60 (1926); 3 AD, p. 213.
-" PCIJ, Series A, No. 7, 1926; 3 AD, p. 429.
4 RIAA, p. 119 (1926). See also the Chattin case, 4 RIAA, p. 282 (1927); 4 AD, p. 248.
' 3 4 RIAA, p. 77 (1926); 3 AD, p. 227.
"4 4 RIAA, pp. 60, 61-2 (1926); 3 AD, p. 213. See siillilarly the Chattin case, 4 RIAA, p. 282(1927); 4 AD, p. 248.
'4"ee

7-

"'

STATE R E S P O N S I B I L I T Y

735should amount to a n outrage, to bad faith, to wilful neglect of duty, orto an insufficiency of governmental action so far short of international
standards that every reasonable and impartial man would readily recognise
its insufficiency.

In other words, a fairly high threshold is specified before the minimum
standard applies. Some indeed have argued that the concept never involveda definite standard with a fixed content, but rather a 'process of deci~ion',~''
a process which would involve an examination of the responsibility of thestate for the injury to the alien in the light of all the circumstances of theparticular case."' The issue of the content of such a standard has often
been described in terms of the concept of denial of
In effect,that concept refers to the improper administration of civil and criminal
justice as regards an alien.258It would include the failure to apprehendand prosecute those wrongfully causing injury to an alien, as in the Janes
claim,259where an American citizen was killed in Mexico. The identity ofthe murderer was known, but no action had been taken for eight years. The
widow was awarded $12,000 in compensation for the non-apprehension
and non-punishment of the murderer. It would also include unreasonably
long detention and harsh and unlawful treatment in prison.260
A progressive attempt to resolve the divide between the national andinternational standard proponents was put forward by Garcia-Amador
in a report on international responsibility to the International Law Commission in 1956. He argued that the two approaches were now synthesisedin the concept of the international recognition of the essential rights ofman.261He formulated two principles: first, that aliens had to enjoy thesame rights and guarantees as enjoyed by nationals, which should not inany case be less than the fundamental human rights recognised and defined in international instruments; secondly, international responsibility
would only be engaged if internationally recognised fundamental humanrights were affected.262This approach did not prove attractive to the ILC
at that time in the light of a number of problems. However, human rights'" M. S. McDougal et al., Studies in World Public Order, New Haven, 1960, p. 869.
25"ee Lillich, 'Duties', p. 350.
See e.g. A. V. Freeman, The blterllational Responsibility of States for Denial of Justice,London, 1938.
"* See AMCO v. Indonesia (Merits) 89 ILR, pp. 405,451.
259 4 RIAA, p. 82 (1926); 3 AD, p. 218.
'60 See e.g. the Roberts claim, 4 RIAA, p. 77 (1926); 3 AD, p. 227 and the Quintanilla claim,
4 RIAA, p. 101 (1926); 3 AD, p. 224.
Yearbook of the ILC, 1956, vol. 11, pp. 173, 199-203.
Yearbook of the ILC, 1957, vol. 11, pp. 104, 112-13.

"'

'"

736

I N T E R N A T I O N A L LAW

law has developed considerably in recent years263and can now be regarded
as establishing certain minimum standards of state behaviour with regard
to civil and political rights. It is noticeable, for example, that the relevant
instruments do not refer to nationals and aliens specifically, but to allindividuals within the territory and subject to the jurisdiction of the state
without d i ~ c r i m i n a t i o nOne
. ~ ~ should~
also note the special efforts being
made to deal with non-nationals, in particular the UN Declaration on
the Human Rights of Individuals who are not Nationals of the Country
in which they ~ i v e , ~ ~ theb ncontinuingdconcern with regard to migrant
workers.26hSome differences as regards the relative rights and obligations ofnationals and aliens are, of course, inevitable. Non-nationals do nothave political rights and may be banned from employment in certain
areas (e.g. the diplomatic corps), although they remain subject to the
local law. It is also unquestioned that a state may legitimately refuse toadmit aliens, or may accept them subject to certain conditions being fulfilled. Whether a state may expel aliens with equal facility is more open to
doubt.
A number of cases assert that states must give convincing reasons for
expelling an alien. In, for example, the Boffo10 case,267which concerned
an Italian expelled from Venezuela, it was held that states possess a general right of expulsion, but it could only be resorted to in extreme circumstances and accomplished in a manner least injurious to the person
affected. In addition, the reasons for the expulsion must be stated before
an international tribunal when the occasion demanded. Many municipal systems provide that the authorities of a country may deport aliens
without reasons having to be stated. The position under customary international law is therefore somewhat confused. As far as treaty law isconcerned, article 13 of the International Covenant on Civil and Political
Rights stipulates that an alien lawfully in the territory of a state party to
the Convention
2
5'

See above, chapters 6 and 7.

264 See e.g. article 2 of the Interllatiollal Covenant on Civil and Political Rights, 1966 and'67

article 1 of the European Convention o n Human Rights, 1950.
General Assembly resolution 401144. See also ElCN.4lSub.21392 (1977) and R. B. Lillichand S. Neff, 'The Treatment of Aliens and International Human Rights Norms: 21 German
YIL, 1978, p. 97.
See further above, chapter 6, p. 309.
10 RIAA, p. 528 (1903). See also Dr Breger's case, M%iteman, Digest, vol. VIII, p. 861;
R. Plender, International Migration Law, 2nd edn, Dordrecht, 1988, and G. Good\vin-Gill,
Internutiorla1 Law und the Movement ofPersons Between States, Oxford, 1978.

STATE R E S P O N S I B I L I T Y

737

may be expelled therefrom only in pursuance of a decision reached inaccordance with law and shall, except where compelling reasons of national
security otherwise require, be allowed to submit the reasons against his
expulsion and to have his case reviewed by and be represented for the
purpose before, the competent authority.

Article 3 of the European Convention on Establishment, 1956, provides
that nationals of other contracting states lawfully residing in the territory
may be expelled only if they endanger national security or offend against
public order or morality, and Article 4 ofthe Fourth Protocol (1963) ofthe
European Convention on Human Rights declares that 'collective expulsion of aliens is prohibited'.2hxThe burden of proving the wrongfulness ofthe expelling state's action falls upon the claimant alleging expulsion andthe relevant rules would also apply where, even though there is no direct
law or regulation forcing the alien to leave, his continued presence in thatstate is made impossible because of conditions generated by wrongfulacts of the state or attributable to it.269Where states have expelled aliens,
international law requires their national state to admit them.270
The expropriation of foreign property'71
The expansion of the Western economies since the nineteenth century
in particular stimulated an outflow of capital and consequent heavy
Note also article 1 of Protocol 7 (1984) of the European Convention on Human Rights tothe same general effect as article 13. See, as regards refugees, the 1951 Convention Relating
to the Status of Refugees and the 1967 Protocol, and G. Goodwin-Gill, The Refugee inInternational Law, 2nd edn, Oxford, 1996.
26y See Rankill v. The IslanricRepublic ofIran 17 Iran-US CTR, pp. 135, 142; 82 ILR, pp. 204,214. See also Goodwin-Gill, International Law and the Movement of Persons; Brownlie,
Principles, p. 522, and M. Pellonpaa, Expulsion in Irlternational Law, 1984.
"/ This is a general principle, but cf. Lord Denning in the Tllakrar case, 119741 QB 684; 59
ILR, p. 450. Note that the Lord Chancellor, in dealing with the expulsion of British aliens
l a ~ statea was under a duty as between
from East Africa, accepted that in inter~latio~lalother states to accept expelled nationals: see 335 HL Deb., col. 497, 14 September 1972.
See also Van Duyn v. Home Office [I9741 ECR 1337; 60 ILR, p. 247.
271 See e.g. G. White, Nntionalisation ofForeign Property, London, 1961; B. Wortley, Expropri268

ation ofPt~blicInternationa1Law, 1959; I. Brownlie, 'Legal Status ofNatura1 Resources: 162
HR, 1979, p. 245; R. Higgins, 'The Taking of Property by the State: Recent Derelop~ne~lts
in International Law', 176 HR, 1982, p. 267, and The Valuation of Nationalised Property
in International Law (ed. R. B. Lillich), Charlottes~ille,3 ~rols.,1972-5. See also Oppenheinz's International Law, pp. 91 I ff.; P. Muchlinski, MultinationalEnterprises and the Law,
Oxford, 1995, pp. 501 ff.; A. Mouri, The International Lalv of Exproprintion ns Reflectedin the Work ofthe Iran-US Clainis Tribunal, Dordrecht, 1994; P. M. Norton, 'A Law of the
Future or a Law ofthe Past?Modern Tribunals and the International Law ofExpropriation',

738

I N T E R N A T I O N A L LAW

investment in the developing areas of the world. This resulted in substantial areas of local economies falling within the ownership and controlof Western corporations. However, with the granting of independence
to the various Third World countries and in view of the nationalisation measures taken by the Soviet Union after the success of the communist revolution, such properties and influence began to come underpressure.
In assessing the state of international law with regard to the expropriation of the property of aliens, one is immediately confronted with two
opposing objectives, although they need not be irreconcilable in all cases.
On the one hand, the capital-exporting countries require some measureofprotection and security before they will invest abroad and, on the other
hand, the capital-importing countries are wary of the power of foreign investments and the drain of currency that occurs, and are often stimulated
to take over such enterprises. Nationalisation for one reason or another is
now a common feature not only in communist and Afro-Asian states, butalso in Western Europe. The need to acquire control of some key privately
owned property is felt by many states to be an essential requirement in
the interests of economic and social reform. Indeed it is true to say that
extensive sectors of the economies of most West European states were atsome stages under national control after having been taken into public
ownership.
Since it can hardlybe denied that nationalisation is aperfectly legitimate
measure for a state to adopt and clearly not illegal as such under international law,272the problem arises where foreign property is involved. Not
to expropriate such property in a general policy of nationalisation might
be seen as equivalent to proposing a privileged status within the country
for foreign property, as well as limiting the power of the state within its
own jurisdiction. There is no doubt that under international law, expropriation of alien property is legitimate.273This is not disputed. However,certain conditions must be fulfilled.274
85 ATIL, 1991, 17. 474; M. Sornarajah, The Irlternatiotlal Law on Foreign Investment,
Cambridge, 1994, and Sornarajah, The Settlelnerlt of Foreig~lInvestlnent Disputes, The
Hague, 2000; N. Schrijver, Sovereignty over Natural Resources, Cambridge, 1997, and F.
Beveridge, Tlle Treatvlent and Taxation of Foreign Ir~vestrnerltunder International Law,
Manchester, 2000.
272 See e.g. De Sancllez v. Barlco Cerltral de Nicaragua and Otllers 770 F.2d 1385, 1397; 88
ILR, pp. 75, 89.
27' See e.g. A M C O v. Indonesia (Merits) 89 ILR, pp. 405, 466.
'74 See e.g. the World Bank Guidelines o n the Treatment of Foreign Direct Investment, 31
ILM, 1992, p. 1363.

STATE R E S P O N S I B I L I T Y

739The question, of course, arises as to the stage at which international law
in fact becomes involved in such a situation. Apart from the relevance ofthe general rules relating to the treatment of aliens noted in the preceding section, the issue will usually arise out of a contract between a state
and a foreign private enterprise. In such a situation, several possibilities
exist. It could be argued that the contract itself by its very nature becomes'internationalised' and thus subject to international law rather than (orpossibly in addition to) the law of the contracting state. The consequencesof this would include the operation of the principle of international lawthat agreements are to be honoured (pacta sunt servanda) which would
constrain the otherwise wide competence of a state party to alter unilaterally the terms of a relevant agreement. This proposition was adopted
by the Arbitrator in the Texaco v. Libya case in 1977,~~'
where it wasnoted that this may be achieved in various ways: for example, by statingthat the law governing the contract referred to 'general principles of law',which was taken to incorporate international law; by including an international arbitration clause for the settlement of disputes; and by including astabilisation clause in an international development agreement, preventing unilateral variation of the terms of the
However, thisapproach is controversial and case-law is by no means consistent."' International law will clearly be engaged where the expropriation is unlawful,
either because of, for example, the discriminatory manner in which it iscarried out or the offering of inadequate or no c o r n p e n s a t i ~ n . ~ ' ~275 53 ILR, p. 389.

'7"eee.g. C. Greenwood, 'State Contracts in International Law - The Libyan Oil Arbitrations: 53 BYIL, 1982, pp. 27, 41 ff. See also A. Fatouros, 'International Law and theInternationalised Contract: 74 AJIL, 1980, p. 134.
'77 See e.g. J. Paulsson, 'The ICSID Klockner v. Can~eroorlAward: The Duties of Partners inNorth-South Economic Development Agreements: 1 Journal ofIrzternationalArbitration,
1984,p.145; the Afninoilcase,21 ILM, 1982,p.976; 66 ILR, p. 519, andD. M! Bowett, 'State
Contracts with Aliens: Contemporary Developments on Compensation for Termination
or Breach: 59 BYIL, 1988, p. 49.
See in particular article 1 of Protocol I of the European Convention on Human Rights,
1950 as regards the protection of the right to property and the prohibition of deprivationof possessions 'except in the public interest and subject to the conditions provided forby law and by the general principles of international law: See e.g. the following cases:
Marckx, European Court of Human Rights, Series A, No. 31; 58 ILR, p. 561; Sporrorzg
arid Lonnroth, ECHR, Series A, No. 52; 68 ILR, p. 86; Loizidou v. Turkey, J ~ ~ d g m eof
nt
18 December 1996; 108 ILR, p. 444. See also e.g. Jacobs and White European Corlventior~on Human Rights (eds. C. Orey and R. C. A. White), 3rd edn, Oxford, 2002, chapter 15.
However, it has been held that the reference to international law did not apply to the taking
by a state of the property of its own nationals: see Lithgow, European Court of Human
Rights, Series A, No. 102; 75 ILR, p. 438; James,ECHR, Series A, No. 98; 75 ILR, p. 397 and

'''

740

I N T E R N A T I O N A L LAW

T h e property question
Higgins has pointed to 'the almost total absence of any analysis of conceptual aspects of property'.279property would clearly include physicalobjects and certain abstract entities, for example, shares in companies,
debts and intellectual property. The 1961 Harvard Draft Convention on
the International Responsibility of States for Injuries to ~ l i e n s ~dis~'cusses the concept of property in the light of 'all movable and immovable
property, whether tangible or intangible, including industrial, literary andartistic property as well as rights and interests in property'. In the Liamcocase the arbitration specifically mentioned concession rights as forming
part of incorporeal pr~perty,'~'a crucial matter as many expropriation
cases in fact involve a wide variety of contractual rights.282

T h e nature of expropriation
Expropriation involves a taking of property,283but actions short of direct
possession of the assets in question may also fall within the category. The
1961 Harvard Draft would include, for example, 'any such unreasonableinterference with the use, enjoyment or disposal of property as to justify
an inference that the owner thereofwill not be able to use, enjoy or disposeof the property within a reasonable period of time after the inception ofsuch interferen~e'.~'~In 1965, for example, after a series of Indonesian
decrees, the UK government stated that:in view of the conlplete inability of British enterprises and plantations toexercise and enjoy any of their rights of ownership in relation to their

Mellaclzer, ECHR, Series A, No. 169. See also Brock, 'The Protection of Property Rights
Under the European Convention on Human Rights: Legal Issues of European Integration,
1986, p. 52.
Higgins, 'Taking of Property', p. 268.
55 AJIL, 1961, p. 548 (article 10(7)).
20 ILM, 1981, PP l,53; 62 ILR, pp. 141, 189. See also the Sl~ufeldtcase,2 RIAA, pp. 1083,
1097 (1930); 5 AD, p. 179.
'82 See also below, 17. 747, concerning the definition of 'investments' in bilateral investment
treaties. See also article l(6) of the European Energy Charter Treaty, 1994.
'" The North American Free Trade Agreement (NAFTA)Arbitration Tribunal noted that theterm 'expropriation: 'carries with it the connotation of a "taking" by a government-type
authority of a person's "property" with a view to transferring ownership of that property
to another person, usually the authority that exercised its de jure or defacto power to do
the "taking"', S.D. A4yer.c v. Canada, 121 ILR, pp. 72, 122.
284 55 AJIL, 1961, pp. 553-4 (article lO(3)a).

"''"STATE R E S P O N S I B I L I T Y

74lproperties in Indonesia, Her Majesty's Government has concluded that theIndonesian Government has expropriated this property."'

In Starrett Housing Corporation v. Government of the Islanzic Republicof Iran before the Iran-US Claims ~ r i b u n a l , ~it ~was' emphasised by the
Tribunal that:measures taken by a state can interfere with property rights to such an
extent that these rights are rendered so useless that they must be deemed
to have been expropriated, even though the state does not purport to have
expropriated them and the legal title to the property formally remains withthe original owner.

In that case, it was held that a taking had occurred by the end of January
1980 upon the appointment by the Iranian Housing Ministry of a temporary manager of the enterprise concerned, thus depriving the claimants of
the right to manage and of effective control andHowever, a seriesof events prior to that date, including armed incursions and detention of
personnel, intimidation and interference with supplies and needed facilities, did not amount to a taking of the property, since investors in foreigncountries assume certain risks with regard to disturbances and even revolution. The fact that the risks materialise, held the Tribunal, did not meanthat property rights affected by the events could be deemed to have beentaken.28sThere is clearly an important, but indistinct, dividing line here.
It has also been held that the seizure of a controlling stock interest in aforeign corporation is a taking of control of the assets and profits of theenterprise in question.289In Biloune v. Ghana Investment Centre, an investor began construction work relying upon government representations
although without building permits; a stop order was then issued based'" BPIL, 1964, p. 200. See also 4 ILM, 1965, pp. 440-7. Note also Shanghai Potver Co. v. US
4 C1. Ct. 237 (1983), where it was held that the settlement of the plaintiff's claim by the

US government in an agreement with China for less than its worth did not constitute ataking for which compensation was required in the context of the Fifth Amendment.
286 Interlocutory Award, 4 Iran-US CTR, 13. 122; 85 ILR, p. 349.
4 Iran-US CTR, p. 154; 85 ILR, p. 390. See also Harza Engineerirzg Co. v. The Islanzic
Republic ofIran 1 Iran-US CTR, 13. 499; 70 ILR, p. 117, and AIG v. The Islamic RepublicofIran 4 Iran-US CTR, p. 96. See also Sedco v. NIOC 84 ILR, p. 483.
2SS 4 Iran-US CTR, 13. 156; 85 ILR, 13.392.Cf. the Concurring Opinion by Judge Holtzmann
on this issue, 4 Iran-US CTR, pp. 159, 178; 85 ILR, p. 414.
28' Kalamazoo Spice Extraction Company v. The Provisional military Government o f Socialist
Ethiopia 86 ILR, p. 45 and 90 ILR, p, 596. See also Agip SpA v. The Government of
the Popular Republic of the Congo, 67 ILR, p. 319 and Benvenuti and Bonfant r. The
Government of the Popular Republic of the Congo, ibid., p. 345.

742

I N T E R N A T I O N A L LAW

upon the absence of such permit. The Tribunal held that an indirect expropriation had taken place because the totality of the circumstances had
the effect of causing the irreparable cessation of work on the project.290
Where the taking constitutes a process rather than one clear act, there
will be a problem of determinin g when the process has reached the point
at which an expropriation in fact has occurred. This issue may be important, for example, in determining the valuation date for compensation
purposes. In Sarzta Elena v. Costa Rica, the Tribunal stated that 'a property has been expropriated when the effect of the measures taken by thestate has been to deprive the owner of title, possession or access to thebenefit and economic use of his property.. . This is a matter of fact for
the Tribunal to assess in the light of the circumstances of the case.'291
The expropriation of a given property may also include a taking ofclosely connected ancillary rights, such as patents and contracts, which
had not been directly n a t i o n a l i ~ e d . ~ ~ ~Public purposes
The Permanent Court in the Certain German Interests in Polish Upper
Silesia case noted that expropriation must be for 'reasons of public utility,
judicial liquidation and similar measures'.293How far this extends is open
to dispute, although it will cover wartime measures.
The issue was raised in the BP case,2y4where the reason for the expropriation of the BP property was the Libyan belief that the UK had
encouraged Iran to occupy certain Persian Gulf Islands. The arbitrator
explained that the taking violated international law, 'as it was made forpurely extraneous political reasons and was arbitrary and discriminatory
in ~haracter'.~~'
This is ambiguous as to the public purpose issue, andin the Liamco case296it was held that 'the public utility principle is not
95 ILR, pp. 183, 207-10. See also Metalclcid Corporation v. United Mexicun Stutes 119
ILR, pp. 615,639-40, a case under the North American Free Trade Agreement (NAFTA),
article 1110 of which prohibits direct and indirect expropriation: see below, footnote 312.
291 39 ILM, 2000, pp. 1317, 1329.
PCIJ, Series A, No. 7,1926. See also the Nor~vegialzShipowners' Clairnscase, 1 RIAA, p. 307(1922) and the Sporrongand Lonrzroth case before the European Court of Human Rights,
v. Greece, European
Series A, No. 52 (1982); 68 ILR, p. 86. See also Pap~~~ilichalopozllos
Court ofHuman Rights, Series A, No. 260 (1993), p. 15. Note in addition Revere Copper v.
Opic, 56 ILR, p. 258. See G. C. Christie, 'What Constitutes a Taking of Property underInternational Law?', 38 BYIL, 1962, p. 307; DUSPIL, 1976, p. 444; Brownlie, System andState Responsibility, pp. 24-5; Whiteman, Digest, vol. VIII, pp. 1006 ff., and Third US
Restatement on Foreign Relations Law, vol. 11, pp. 200-1.
'9' PCIJ, Series A, No. 7, 1926, p. 22.
294 53 ILR, p. 297.
19' Ibid., p. 329.
9' "0ILM, 1981, p. 1; 62 ILR, p. 141.
"O'"STATE RESPONSIBILITY

743

a necessary requisite for the legality of a nati~nalisation'.~~'
It is to be
noted, however, that the 1962 General Assembly Resolution on Permanent Sovereignty over Natural Resources mentions this requirement,298
although the 1974 Charter of Economic Rights and Duties of States does
not.299The question is thus still an open one.300The Tribunal in Santa
Elena v. Costa Rica took the view that international law permitted expropriation of foreign-owned property inter ulia for a public purpose andnoted that this might include a taking for environmental reason^.^"Compensation
The requirement often stipulated is for prompt, adequate and effective
compensation, the formula used by US Secretary of State Hull on theoccasion of Mexican expropriations.302It is the standard maintained inparticular by the United States"' and found in an increasing numberof bilateral investment treaties.'04 However. case-law has been less clear.
20 ILM, 1981, pp. 58-9; 62 ILR, p. 194
Paragraph 4 ofthe 1962 Resolution provides that '[n] ationalization, expropriation or requisitioning shall be based on grounds or reasons of public utility, security or the national
interest which are recognized as overriding purely individual or private interests, both
domestic and foreign. In such cases the owner shall be paid appropriate compensationin accordance with the rules in force in the state taking such measures in the exercise of
its sovereignty and in accordance with international law. In any case where the questionof conlpensation gives rise to a controversy, the national jurisdiction of the state taking
such measures shall he exhausted. Ho~crever,upon agreement by sovereign states andother parties concerned, settlement of the dispute should be made through arbitration
or international adjudication.''99 Article 2(2)c of the 1974 Charter provides that every state has the right to 'nationalise,
expropriate or transfer ownership of foreign property in which case appropriate compensation s h o d d be paid by the state adopting such measures, taking into account its
relevant laws and regulations and all circumstances that the state considers pertinent. In
any case where the question of compensation gives rise to a controversy, it shall be settled
under the domestic law of the nationalising state and by its tribunals, unless it is freely
and mutually agreed by all states concerned that other peaceful means be sought on thebasis of the sovereign equality of states and in accordance with the principle of free choiceof means.''On See also Agip SpA v. The Government of tlze Popular Republic of the Congo 67 ILR, pp. 319,
336-9.
'01 39 ILM, 2000, pp. 1317, 1329. The fact that the taking was for a laudable environ~nental
reason did not affect the duty to pay compensation, ibid.
'03 Hackworth, Digest, vol. 111, 1940-4, p. 662. See also Muchlinski, MultinationalEilterprises,
pp. 506 ff., and E. Lauterpacht, 'Issues of Compensation and Nationality in the Taking ofEnergy Investments', 8 Jourilal of Eilergy and h'atz~mlResources Law, 1990, p. 241.
'03 See e.g. DUSPIL, 1976, p. 444, and D. Robinson, 'Expropriation in the Restatement(Revised)',78 AJIL, 1984, p. 176.
"4
Robinson, 'Expropriation', p. 178. See further below, p, 747.
297
?"

744

I N T E R N A T I O N A L LAW

Early cases did not use the Hull form~lation'~'and the 1962 Permanent
Sovereignty Resolution referred to 'appropriate compensation', a phrasecited with approval by the arbitrator in the Texaco case306as a rule of customary law in view of the support it achieved. This was underlined in the
Aminoil case,"7 where the tribunal said that the standard of 'appropriatecompensation' in the 1962 resolution 'codifies positive principles'.308It
was stated that the determination of 'appropriate compensation' was better accomplished by an inquiry into all the circumstances relevant to theparticular concrete case than through abstract theoretical discus~ion."~However, while the 'appropriate compensation' formula of the 1962 resolution is linked to both national and international law, the 1974 Charterof Economic Rights and Duties of States links the formula to domestic law and considerations only. The former instrument is accepted asa reflection of custom, while the latter is not.'1° But in any event, it isunclear whether in practice there would be a substantial difference inresult.311
It should also be noted that section IV(1) of the World Bank Guidelines
on the Treatment of Foreign Direct Investment provides that a state may
not expropriate foreign private investment except where this is done inaccordance with applicable legal procedures, in pursuance in good faithof a public purpose, without discrimination on the basis of nationality
and against the payment of appropriate compensation. Section IV(2)notes that compensation will be deemed to be appropriate where it isadequate, prompt and effective.312Article 13 of the European Energy
305

See e.g. the Chorzo~vFuctory case, PCIJ, Series A, No. 17, 1928, p. 46; 4 AD, p. 268 and
the Nori.vegialz Shipowners' Claims case, 1 RIAA, pp. 307, 339-41 (1922). See also 0.
Schachter, 'Compensation for Expropriation', 78 AJIL, 1984, p. 121.
jo6 17 ILM, 1978, pp. 3, 29; 53 ILR, pp. 389,489. See also Bunco Nacional de Cuba v. Chrzse
Manlzattun Bank, 658 F.2d 875 (1981); 66 ILR, p. 421.
jO' 21 ILM, 1982, p. 976; 66 ILR, p. 519.
'09 21 ILM, 1982, p. 1033.
'08 21 ILM, 1982, p. 1032; 66 ILR, p. 601.
jl'
See e.g. the Texaco case, 17 ILM, 1978, pp. 1, 29-31; 53 ILR, p. 489. Note that the Third
US Restatement ofForeign Relations Law, p. 196 (para. 712), refers to the requirement of'just compensation' and not the Hull formula. This is defined as 'an amount equivalent tothe value of the property taken and to be paid at the time of taking or within a reasonable
time thereafter with interest from the date of taking and in a form economically usableby the foreign national: ibid., p. 197. See also Schachter, 'Compensation: p. 121.
'I1 See generally also R. Dolzer, 'New Foundation of the Law of Expropriation of Alien
Sornarajah, 'Compensation for Expropriation',
Property', 75 AJIL, 1981, p. 533, and IM.
13 Journal of World Trade Law, 1979, p. 108, and Sornarajah, International Law on Foreign

Investment.
'I2

31 ILM, 1992, p. 1382. Note also that article 1110 of the North American Free Trade
hgreenlent 1992 (NAFTA) provides that no party shall directly or indirectly nationaliseor expropriate an investment of an investor of another party in its territory or take a

STATE R E S P O N S I B I L I T Y

745Charter Treaty, 1994 provides that expropriation must be for a purpose
which is in the public interest, not discriminatory, carried out under due
process of law and accompanied by the payment of prompt, adequate andeffective compensation."13
In the sensitive process of assessing the extent of compensation, several distinct categories should be noted. There is generally little dispute
about according compensation for the physical assets and other assets ofthe enterprise such as debts or monies due. Although there are differing
methods as to how to value such assets in particular cases,314the essential
principle is that of fair market value.315Interest on the value of such assets
will also normally be paid.1316There is, however, disagreement with regard
to the award of compensation for the loss of future profits. In AMCO v.
~ndonesia,"~the Arbitral Tribunal held that:the f ~ ~compensationllof prejudice, by awarding to the injured party, thedumntrnz emergens [loss suffered] and the lucrtrm cessans [expected profits]
is aprinciple common to the main systems ofmunicipallaw, and therefore, ageneral principle oflawwhich may be considered as a source ofinternationallaw,

although the compensation that could be awarded would cover only direct
and foreseeable prejudice and not more remote damage.1318
measure tantamount to nationalisation or expropriation except where it is for a public
purpose, on a non-discriminatory basis, in accordance with due process of law and upon
paynlent of compensation. The payment of colnpensation is to he the fair market value ofthe expropriated investment immediately before the expropriation took place and should
not reflect any change in value occurring because the intended expropriation had become
known earlier. Valuation criteria shall include going concern value, asset value (including
declared tax value of tangible property) and other criteria, as appropriate to determine
fiair market value. In addition, compensation shall be paid with interest, ~vithoutdelay
and be fillly realisable. See 32 ILM, 1993, p. 605.
'I3 34 ILM, 1995, p. 391.
'I4
See e.g. the Aminoil case, 21 ILM, 1982, pp. 976, 1038; 66 ILR, pp, 519, 608-9.
'I5 Fair market value means essentially the amount that a ~villingbuyer would pay a willing
seller for the shares of a going concern, ignoring the expropriation situation completely:
see e.g. INA Corporation v. The Islanlic Repllblic ofIran 8 Iran-US CTR, pp. 373, 380; 75
ILR, p. 603.
31"ee the Memorandum of the Foreign and Commonwealth Office on the Practice ofInternational Tribunals in Awarding Interest, UKMIL, 63 BYIL, 1992, p. 768.
'I7 24 ILM, 1985, pp. 1022, 1036-7; 89 ILR, pp. 405,504. See also the Chorzdw Factorycase,
PCIJ, Series A, No. 17, 1928; 4 AD, p. 268; the Sapphirecase, 35 ILR, p. 136; the ~Vorwegiail
Shipowners' Claims case, 1 RIAA, p. 307 (1922); the Lighthouses Arbitration 23 ILR, p. 299,
and Benveriuti and Boilfant v. The Governrneilt of the Popular Republic of the Congo 67
ILR pp. 345,375-9.
24 ILM, 1985, pp. 1022, 1037; 89 ILR, p. 505. See also Sola Tiles blc. v. Islamic RepublicofIran 83 ILR, p. 460.

"*

746

I N T E R N A T I O N A L LAWIn Metalclad Corporation v. United iMexican States, the Tribunal notedthat normally the fair market value of a going concern which has a historyof profitable operation may be based on an estimate of future profits
subject to a discounted cash flow analysisJ319but where the enterprise has
not operated for a sufficiently long time to establish a performance recordor where it has failed to make a profit, future profits cannot be used sothat to determine the fair market value. reference instead to the actual
investment made may be appropriate.320
However, it has been argued that one may need to take into account
whether the expropriation itself was lawful or unlawful. In I N A Corporation v. The Islamic Republic of 1 r a 1 1 , ~the
~ ~ Tribunal suggested that in
the case of a large-scale, lawful nationalisation, 'international law has
undergone a gradual reappraisal, the effect ofwhich may be to undermine
the doctrinal value of any "full" or "adequate" (when used as identicalto "full") compensation standard'. However, in a situation involving
an investment of a small amount shortly before the nationalisation,international law did allow for compensation in an amount equal to thefair market value of the investment.322However, Judge Lagergren notedthat the 'fair market value' standard would normally be discounted
in cases of lawful large-scale nationalisations in taking account of 'allcircumstance^'.^^^In Amoco International Finance Corporation v. The Islamic Republic ofran,^^^ Chamber Three of the Iran-US Claims Tribunal held that theproperty in question had been lawfully expropriated and that 'a clear distinction must be made between lawful and unlawful expropriations, since
the rules applicable to the compensation to be paid by the expropriatingstate differ according to the legal characterisation of the taking'.3" In thecase of an unlawful taking, full restitution in kind or its monetary equivalent was required in order to re-establish the situation which would in allprobability have existed if the expropriation had not o ~ c u r r e d , ~ ~ % h i l e
119 ILR, pp. 615, 641. See also Benveizuti and Bonfiznt v. The Government of'the Popular
Republic of the Congo 67 ILR, p. 345 a n d AGlP SPA v. The Governiilent of the Popular
Republic of the Congo 67 ILR, p. 318.
320 119 ILR, pp. 641-2. See also Pllelps Dodge Corporatioil v. Iran 10 Iran-US CTR, 1986,
pp. 121, 132-3 and Biloznle v. Gharla Investrne~ztCentre 95 ILR, pp. 183, 228-9.
8 Iran-US CTR, p. 373; 75 ILR, p. 595.
8 Iran-US CTR, p. 378; 75 ILR, p. 602.
8 Iran-US CTR, p. 390; 75 ILR, p. 614.
3'4 15 Iran-US CTR, pp. 189,246-52; 83 ILR, p. 500.
'25 15 Iran-US CTR, p. 246; 83 ILR, p. 565.
"6 See also Judge Lagergren's Separate Opiilioil in INA Corporation v. The Islaniic RepublicofIran 8 Iran-US CTR, p. 385; 75 ILR, p. 609.
"9

"'

"'

'"

STATE R E S P O N S I B I L I T Y

747in the case of lawful taking, the standard was the payment of the full valueof the undertaking at the moment of dispossession. The difference wasinterpreted by the Tribunal to mean that compensation for lost profits
was only available in cases of wrongful expropriation. As far as the actual
method of valuation was concerned, the Tribunal rejected the 'discounted
cash flow' method, which would involve the estimation of the likely future earnings of the company at the valuation date and discounting suchearnings to take account of reasonably foreseeable risks, since it was likely
to amount to restitution as well as being too spe~ulative.~~'Bilateral investment treaties
In practice, many of the situations involving commercial relations between states and private parties fall within the framework of bilateralagreements.328These arrangements are intended to encourage investment
in a way that protects the basic interests of both the capital-exporting andcapital-importing states. Indeed, there has been a remarkable expansion
in the number of such bilateral investment treaties.329The British government, for example, has stated that it is policy to conclude as many suchagreements as possible in order to stimulate investment flows. It has also
been noted that they are designed to set standards applicable in international law.330The provisions of such agreements indeed are remarkably'" But see e.g. AIG v. The Islamic Republic ofIran 4 Iran-US CTR, pp. 96, 109-10, where
'"

9'

''O

in a case of lawful expropriation lost profits were awarded. See also Brownlie, Principles,
pp. 541-2; Section IV of thelVorld Bank Guidelines, and article 13 ofthe European Energy
Charter Treaty, 1994.
See e.g. E. Denza and D. Brooks, 'Investment Protection Treaties: United Kingdom Experience', 36 ICLQ, 1987, p. 908; A. Akinsanya, 'International Protection of Direct Foreign
Investments in the Third World: 36 ICLQ, 1987, p. 58; F. A. Mann, 'British Treaties for
the Promotion and Protection of Investments: 52 BYIL, 1981, p. 241; D. Vagts, 'Foreign
Investment RiskReconsidered: TheView From the 1980s; 2 ICSID Review-Foreign Investment Law Jollrnal, 1987, p. 1; P. B. Gann, 'The US Bilateral Investment Treaties Program',Law, 1986, p. 373, and I. Pogany, 'The Replatioil
21 Stanfirti Joul.na1 oflnternation~~lof Foreign Investment in Hungary: 4 ICSID Revietv - Foreign Investinent Law J o ~ ~ r n a l ,1989, p. 39. See also J. Kokott, 'Interim Report on the Role of Diplomatic Protection in
the Field of the Protection of Foreign Investment', International Law Association, Reportof the Seventieth Conference, New Delhi, 2002, p. 259.
~ o k o testimatestthat close to 2,000 are in existence, 'Interim Report', p. 263. See, for earlier
figures, 35 ILIM, 1996, p. 1130; Deilza and Brooks, 'Investment Protection Treaties', p. 913,
and UKMIL, 58 BYIL, 1987, p. 621.
See the text of the Foreign Office statement in UKMIL, 58 BYIL, 1987, p. 620. Suchagreements are in UK practice usually termed investment promotion and protection
agreeineilts (IPPhs).In March 2000, it was stated that the UK had entered into ninetythree such treaties, UKMIL, 71 BYIL, 2000, p. 606.

748

I N T E R N A T I O N A L LAW

uniform and constitute valuable state practice."' While normally greatcare has to be taken in inferring the existence of a rule of customary international law from a range of bilateral treaties, the very number anduniformity of such agreements make them significant exemplars.
Some ofthese common features of such treaties maybe noted. First, theconcept of an investment is invariably broadly defined. In article 1(a) of
the important UK-USSR bilateral investment treaty, 1 9 8 9 , ~for~ ' example,
it is provided that:the term 'investment' means every kind of asset and in particular, though
not exclusively, includes:(i) movable and immovable property and any other related property rights
such as mortgages;(ii) shares in, and stocks, bonds and debentures of, and any other form ofparticipation in, a company or business enterprise;(iii) claims to money, and claims to performance under contract having afinancial value;(iv) intellectual property rights, technical processes, know-how and anyother benefit or advantage attached to a business;(v) rights conferred by laxv or under contract to undertake any commercial activity, including the search for, or the cultivation, extraction or
exploitation of natural resources.333

Secondly, both parties undertake to encourage and create favourable conditions for investment, to accord such investments 'fair and equitable
treatment' and to refrain from impairing by unreasonable or discriminatory measures the management, maintenance, use, enjoyment or disposalof investments in its territory."qhirdly, investments by the contracting
parties are not to be treated less favourably than those of other state^.'^'
As far as expropriation is concerned, article 5 of the UK-USSR agreement,
by way of example, provides that investments of the contracting parties
are not to be expropriated:"' See Kokott, 'Interim Report', p. 263. See also R. Dolzer, 'New Foundations of the Law ofExpropriation of Alien Property', 75 AJIL, 1981, pp. 553, 565-6, and B. Kishoiyian, 'The
Utility of Bilateral Investment Treaties in the Formulation of Customary International
Law', 14 Netlzerlalzds Journal of International Latv and Btrsiness, 1994, p. 327.
'j2 Text reproduced in 29 ILM, 1989,p. 366.
See also, for example, the similar provisions in the UK-Philippines Investment Agreement
1981, and the UK-Hungary Investment Agreement 1987. See also article l(6) of theEuropean Energy Charter Treaty, 1994.
33"ee e.g. article 2 of the UK-USSR agreement.
See e.g, article 3 of the UK-USSR agreement.

"'"'

STATE R E S P O N S I B I L I T Y

749

except for a purpose which is in the public interest and is not discriminatory and against the payment, without delay, of prompt and effective
compensation. Such compensation shall amount to the real value of theinvestment expropriated immediately before the expropriation or before
the impending expropriation became public knowledge, whichever is theearlier, shall be made within two months of the date of expropriation, after
which interest at a normal commercial rate shall accrue until the date ofpayment and shall be effectively realisable and be freely transferable. The
investor affected shall have a right under the law of the contracting statemaking the expropriation, to prompt review, by a judicial or other independent authority of that party, of his or its case and of the valuation of his or
its investment in accordance with the principles set out in this paragraph.

Such practice confirms the traditional principles dealing with the conditions of a lawful expropriation and compensation, noting also the acceptance of the jurisdiction of the expropriating state over the issues of thelegality of the expropriation and the valuation of the property expropriated.336An attempt to produce a Multilateral Agreement on Investmentcommenced in 1995 within the framework of the Organisation of Economic Co-operation and Development, but foundered in 1 9 9 8 . ~ ~ ~Lump-sum agreements
Many disputes over expropriation of foreign property have in fact been
resolved directly by the states concerned on the basis of lump-sum settlements, usually after protracted negotiations and invariably at valuation below the current value of the assets concerned.338For example, thej3"otethat provisions for compensation for expropriation may also be contained in Treaties
of Friendship, Comnlerce and Navigation as part of a framework arrangement dealing
with foreign trade and investment: see e.g. article IL7(3)of the Convention of Establishment, 1959 between the US and France, 11 UST 2398.
" See e.g. S. J. Canner, 'The Multilateral Agreement on Investment', 31 Cornell Inteunatiorzal
Law Jouurial, 1998, p. 657; A. Bohmer, 'The Struggle for a Multilateral Agreement on
Investment - An Assessment of the Negotiation Process in the OECD', 41 German YIL,
1998, 17. 267, and T.Waelde, 'Multilateral Investment Agreements (MITs) in the Year
2000' in Melanges Philippe Kahn, Paris, 2000, p. 389. See also http://wruru.oecd.org/
EN/doc~1ment/0,,EN-doc~~ment-92-3-no-6-27308-92,00.html
Discussions on investment continue within the framework of the World Trade Organisation: see http://xm+w.
wto.org/english/tratop_e/invest_e/invest_e.htm.
See e.g. Lillich and Weston, International Clairns: Their Settlement by Lump-Surn Agreements and Lillich and Weston, 'Lump-Sum Agreements: Their Continuing Contribution to the Law of International Claims', 82 ATIL, 1988, p. 69. See also D. J. Bederman,'Interim Report on Lump Sum Agreements and Diplomatic Protection', International
La\v Assoc~ation,Report of the Seventieth Conference, New Delhi, 2002,p. 230.

"'

750

I N T E R N A T I O N A L LAW

UK-USSR Agreement on the Settlement of Mutual Financial and Property Claims, 1 9 8 6 dealt~ ~ ~ with UK government claims of the order of£500 million in respect of Russian war debt and private claims of British~ the event, a sum in thenationals amounting to some £400 m i l l i ~ n . " Inregion of £45 million was made available to satisfy these claims.34' The
Agreement also provided that money held in diplomatic bank accounts in
the UK belonging to the pre-revolutionary Russian Embassy, amounting
to some £2.65 million, was released to the Soviet authorities. As is usual insuch agreements, each government was solely responsible for settling theclaims of its nationals.342This was accomplished in the UK through themedium of the Foreign Compensation Commission, which acts to distribute settlement sums 'as may seem just and equitable to them having
regard to all the circumstances'. A distinction was made as between bondand property claims and principles enunciated with regard to exchange
rates at the relevant time.343
The question arises thus as to whether such agreements constitute statepractice in the context of international customary rules concerning thelevel of compensation requiredupon an expropriation offoreign property.
A Chamber ofthe Iran-US Claims Tribunal in SEDCO v. National Iranian
Oil Co."" noted that deriving general principles of law from the conductof states in lump-sum or negotiated settlements in other expropriation
cases was difficult because of the 'questionable evidentiary value. . . ofmuch of the practice available'. This was because such settlements were
often motivated primarily by non-juridical considerations. The Chamberalso held incidentally that bilateral investment treaties were also unreliable
evidence of international customary standards of compensation. Views
differ as to the value to be attributed to such practice,345but caution
is required before accepting bilateral investment treaties and lump-sum
agreements as evidence of customary law. This is particularly so with
339 Cm 30. Note that this agreement dealt ~ v i t hclaims arising before 1939.

As against these claims, the USSR had made extensive claims in the region of 52 billion
in respect of alleged losses caused by British intervention in the USSR between 1918 and
1921: see UKMIL, 57 BYIL, 1986, p. 606.
341 The British government waived its entitlement to a share in the settlement in respect of
its own claims, ibid., p. 608.
342 See also the UK-China Agreement on the Settlement of Property Claims 1987, UKMIL,
58 BYIL, 1987, p. 626.
See, with respect to the UK-USSR agreement, the Foreign Compensation (USSR)(Registration and Determination of Claims) Order 1986, SI 198612222 and the Foreign
Compensation (USSR) (Distribution) Order 1987.
'44 10 Iran-US CTR, pp. 180, 185; 80 AJIL, 1986, p. 969.
See e.g. Bowett, 'State Contracts with Aliens', pp. 65-6.

'"'"

STATE R E S P O N S I B I L I T Y

75lregard to the latter since they deal with specific situations rather thanlaying down a framework for future activity.3" Nevertheless, it would beequally unwise to disregard them entirely. As with all examples of statepractice and behaviour, careful attention must be paid to all the relevant
circumstances both of the practice maintained and the principle underconsideration.

It has been argued that non-discrimination is a requirement for a valid
and lawful e ~ p r o p r i a t i o n Although.~~~
it is not mentioned in the 1962
resolution, the arbitrator in the ~ i a m c o case
' ~ ~ strongly argued that a discriminatory nationalisation would be
Nevertheless, in thatcase, it was held that Libya's action against certain oil companies wasaimed at preserving its ownership of the oil and was non-discriminatory.
Indeed, the arbitrator noted that the political motive itself was not the
predominant motive for nationalisation and would not per se constitutesufficient proof of a purely discriminatory measure.350While the discrimination factor would certainly be a relevant factor to be considered,it would in practice often be extremely difficult to prove in concrete cases.
The Multilateral Investment Guarantee ~ g e n c ~ ~ ~ l
One approach to the question of foreign investment and the balancingof the interests of the states concerned is provided by the Convention
Establishing the Multilateral Investment Guarantee Agency, 1985, whichcame into force in 1 9 8 8 . ~ 'This~ Agency is part of the World Bank group
346 Note the vie~vof the International Court in the Rnrcelona Trrzction case that such settle-

ments were sui generis and provided no guide as to general international practice, ICJ
Reports, 1969, pp. 4,40.
See e.g. bThite,Nationnlisation, pp. 119 ff. See also A. Maniruzzaman, 'Expropriationof Alien Property and the Principle of Non-Discrimination in the International Law ofForeign Investment', 8 Journal of Transnational Law and Policy, 1999, p. 141.
348 20 ILM, 1981, p. 1; 62 ILR, p. 141.
20 ILM, 1981, pp. 58-9; 62 ILR, p. 194.
350 20 ILM, 1981, p. 60. See also Section IV of the World Bank Guidelines on the Treatment
of Foreign Direct Investment, and article 13 of the European Energy Charter Treaty, 1994.
351 See e.g. S. K. Chatterjee, 'The Convention Establishing the Multilateral Investment Guarantee Agency', 36 ICLQ, 1987, p. 76, and I. Shihata, T h e ~ ~ ~ ~ l t i l a blvestment
teral
Gz~arailtee
Agency and Foreign Investment, Dordrecht, 1987. The Convention came into force on 12
April 1988: see 28 ILIM, 1989, p. 1233 and see also http://~.~~w.miga.org/.
35' See e.g, the UK Multilateral Investment Guarantee Agency Act 1988.

'"
'"

752

I N T E R N A T I O N A L LAW

and offers political risk insurance (guarantees) to investors and lenders.
Membership is open to all members of the World Bank. Article 2 provides
that the purpose of the Agency, which is an affiliate of the World Bank,
is to encourage the flow of investment for productive purposes among
member countries and, in particular, to developing countries. This is
to be achieved in essence by the provision of insurance cover 'against
non-commercial risks', such as restrictions on the transfer of currency,
measures of expropriation, breaches of government contracts and losses
resulting from war or civil disturbance^.^'^
It is also intended that the Agency would positively encourage investment by means of research and the dissemination of information on
investment opportunities. It may very well be that this initiative could in
the long term reduce the sensitive nature of the expropriation mechanism.

Suggestions for further reading
I. Brownlie, System of the Law ofNations: State Responsibility, Part I, Oxford, 1983
J. Crawford, The International Law Coinnzission's Articles on State Responsibility,
Cambridge, 2002
lli. K. Geck, 'Diplomatic Protection' in Encyclopedia ofpublic International Law (ed.
R. Bernhardt), Amsterdam, 1992, vol. X, p. 1053
C. Gray, Judicial Remedies in International Law,Oxford, 1987
'Symposium: The ILC's State Responsibility Articles', 96 AJIL, 2002, p. 773

International environmental law

Recent years have seen an appreciable growth in the level of understanding of the dangers facing the international environment' and an
extensive range of environmental problems is now the subject of serious
See generally P. Birnie and A. Boyle, Interrrational Liz~v and the Environment, 2ndedn, Oxford, 2002; C. Redgwell, Intergenerational Trusts and Enviro11mental Protection,
Manchester, 1999; P. Sands, Principles of l~lter~lutional
Environmental Law, Manchester,
1995; E. Benveniste, Sharing Trar1sbomndary Resozirces, Cambridge, 2002; V. P. Nanda, 111ternutioizal Environmelztal Law and Policy, Ne~vYork, 1995; A. Kiss and D. Shelton, International Environmental Law, 1991; Greening lnter11ational Law (ed. P. Sands), London,
1993; BasicDocunzents ofInternationalEnvironmentalLaiv(ed. H . Hohmann), Dordrecht, 3vols., 1992; A. Kiss, Le Droit International de I'Environnement, 1989, Kiss 'The International
Protection of the Environment' in The Strnctt~reand Process of International Law (eds. R.
St J. Macdonald and D. Johnston), The Hague, 1983, p. 1069, and Kiss, Survey of Current
Developments in I~zter~zational
Enviro~zmentalLaiv, Gland, 1976; L. Caldwell, International
Enviro~lmental Policy, 2nd edn, Durham, 1990; b~ternationalEnvironmental Diplomacy(ed. G. Carroll), Cambridge, 1988; J. Barros and D. M. Johnston, The Internatiorlal Law of
Pollution, 1974; Intern~ztionalEnvironme~rtalL a ~ v(eds. L. Teclaff and A. Utton), New York,
1974; Trends in Environrriental Policy and Laiv(ed. M. Bothe), Gland, 1980; Hague Academyof International Law Colloque 1973, The Protection of the Environme~itand International
Laiv (ed. A. Kiss); ibid., Colloque 1984, The Future of the International Laiv of the Environment (ed. R. J. Dupuy); J. Schneider, World Public Order of the Environirrent, Toronto,
1979; A. L. Springer, The lnternatioual Law of Pollution: Protectiug the Global Environment in a World uf Sovereign States, Westport, 1983; Irzterrzational Environrrlental Law (eds.
C. D. Gurumatry, G. TI! R. Palmer and B. Weston), St Paul, 1994; I. Brownlie, 'International Customary Rules of Environmental Protection', International Relations, 1973, p. 240;
E. Brown \tTeiss, In Fairness to Future Generations: International Law, Corrnnori Patrimony
and Intergenerational Equity, Dobbs Ferry, 1989; Chernobyl: Law and Cortlmunication (ed.
P. Sands), Cambridge, 1988; C. Chinkin, 'International Environmental Law in Evolution'in Law in Erzvironruent Decision-Making (eds. T. Jewel1 and 1. Steele), Oxford, 1998; J.
Scott, ECEnvironniental Law, London, 1998; R. Mrolfrum, 'Means of Ensuring Compliancewith and Enforcement of International Environmental Law', 272 HR, 1998, p. 9; A. Boyle,'Nuclear E n e r u and International Law: An Environmental Perspective', 60 BYIL, 1989, p.
257, and Nguyen Quoc Dinh, P. Daillier and A. Pellet, Droit International Public, 7th edn,
Paris, 2002, p. 1269. See also Selected Multilateral Peatiex in the Field of the Environment,
Cambridge, 2 vols., 1991; A. 0.Adede, InternationalEnvironmental LaivDigest, Amsterdam,
1993, and P. Sands, R. Tarasofsky and M. Weiss, Documents in International Environmental
Law, Manchester, 2 vols., 1994.

753

754

I N T E R N A T I O N A L LAW

international ~ o n c e r nThese. ~ include atmospheric pollution, marine pollution, global warming and ozone depletion, the dangers of nuclear andother extra-hazardous substances and threatened wildlife ~ p e c i e s Such.~problems have an international dimension in two obvious respects. First,
pollution generated from within a particular state often has a serious
impact upon other countries. The prime example would be acid rain,
whereby chemicals emitted from factories rise in the atmosphere andreact with water and sunlight to form acids. These are carried in thewind and fall eventually to earth in the rain, often thousands of miles
away from the initial polluting event. Secondly, it is now apparent thatenvironmental problems cannot be resolved by states acting individually. Accordingly, co-operation between the polluting and the polluted
state is necessitated. However, the issue becomes more complicated inthose cases where it is quite impossible to determine from which country a particular form of environmental pollution has emanated. This
would be the case, for example, with ozone depletion. In other words,
the international nature of pollution, both with regard to its creationand the damage caused, is now accepted as requiring an international
response.
The initial conceptual problem posed for international law lies in thestate-oriented nature of the discipline. Traditionally, a state would only
be responsible in the international legal sense for damage caused where
it could be clearly demonstrated that this resulted from its own unlawful activity."hishas proved to be an inadequate framework for dealing
with environmental issues for a variety of reasons, ranging from difficulties of proof to liability for lawful activities and the particular question of responsibility of non-state offenders. Accordingly, the international community has slowly been moving away from the classic state'This may be measured by the fact that in July 1993, the International Court of Justiceestablished a special Chamber to deal with environmental questions. It has as yet heard nocases. See R. Ranjeva, 'L'Environnement, La Cour Internationale de Justice et sa Chambre
Spkciale pour les Questions d'Environnement', AFDI, 1994, p. 433. Note also the Environmental Annex (Annex I\') to the Israel-Jordan Peace Treaty, 1995 and article 18 of theTreaty, 34 ILM, 1995, p. 43. See also Annex I1 on Water Related Matters.
See, as to endangered species, e.g. M. Carwardine, The WWF Envirorintent Handbook,London, 1990, and S. Lyster, Irzterrzational Wildltfe Latv, Cambridge, 1985. See also theConvention on International Trade in Endangered Species, 1973 covering animals andplants, and the Convention on Biological Diversity, 1992, which inter alia calls upon parties
to promote priority access on a fair and equitable basis by all parties, especially developing
countries, to the results and benefits arising from biotechnologies based upon genetic
resources provided by contracting parties.
See further above, chapter 14.

INTERNATIONAL ENVIRONMENTAL LAW

755

responsibility approach to damage caused towards a regime of international co-operation.
A broad range of international participants are concerned with developments in this field. States, of course, as the dominant subjects of theinternational legal system are deeply involved, as are an increasing numberof international organisations, whether at the global, regional or bilaterallevel. The United Nations General Assembly has adopted a number ofresolutions concerning the environment,' and the UN Environment Programme was established after the Stockholm Conference of 1972. Thishas proved a particularly important organisation in the evolution of conventions and instruments in the field of environmental protection. It
is based in Nairobi and consists of a Governing Council of fifty-eight
members elected by the General Assembly. UNEP has been responsible
for the development of a number of initiatives, including the 1985
Vienna Convention for the Protection of the Ozone Layer and the 1987
Montreal Protocol and the 1992 Convention on ~ i o d i v e r s i tAn~ . ~InterAgency Committee on Sustainable Development was set up in 1992 toimprove co-operation between the various UN bodies concerned withthis topic. In the same year, the UN Commission on Sustainable Development was established by the General Assembly and the Economic
and Social Council of the UN (ECOSOC). It consists of fifty-three stateselected by ECOSOC for three-year terms and it exists in order to follow up
the UN Conference on Environment and Development 1992.~The techniques of supervision utilised in international bodies include reporting,'
inspection9 and standard-setting through the adoption of conventions,
regulations, guidelines and so forth. In 1994 it was agreed to transform the
Global Environment Facility from a three-year pilot programme1' into apermanent financial mechanism to award grants and concessional funds
to developing countries for global environmental protection projects."
The Facility focuses upon climate change, the destruction of biological"eee.g. resolutions 2398 (XXII); 2997 (XXVII); 341188; 3518; 371137; 371250; 421187;
441244; 441228; 451212 and 471188.
See generally 1~ttp:llwww.unep.orgi.
See generally http:ll~~~~~~.un.orgiesalsustdeuicsd.htm.
As e.g. under the Prevention of Marine Pollution from Land-Based Sources Convention,
1974 and the Basle Convention on the Control of Transboundary Movements of Hazardous Wastes, 1989.
See e.g. the Antarctic Treaty, 1959 and the Protocol on Environmental Protection, 199 1. See,with regard to the International Whaling Commission, P. Birnie, International Regulationof \(maling, New York, 1985, p. 199.
l o See 30 ILM, 1991, p. 1735.
l 1 See 33 ILM, 1994, p. 1273.

'
'

756

I N T E R N A T I O N A L LAW

diversity, the pollution of international waters and ozone depletion. Issues of land-degradationl%lso fall within this framework.13 In addition,a wide range of non-governmental organisations are also concerned withenvironmental issues.
It has been argued that there now exists an international human rightto a clean environment.I4 There are, of course, a range of general humanrights provisions that may have a relevance in the field of environmental
protection, such as the right to life, right to an adequate standard of living,right to health, right to food and so forth, but specific references to a human right to a clean environment have tended to be few and ambiguous.
The preamble to the seminal Stockholm Declaration of the UN Conference on the Human Environment 1972 noted that the environment was'essential to . . . the enjoyment of basic human rights - even the right to life
itself', while Principle 1 stated that 'Man 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.' Article 24 of the African
Charter of Human and Peoples' Rights, 1981 provided that 'all people shallhave the right to a general satisfactory environment favourable to theirdevelopment', while article 11 of the Additional Protocol to the American
Convention on Human Rights, 1988 declared that 'everyone shall have theright to live in a healthy environment' and that 'the states parties shall promote the protection, preservation and improvement of the environment'.
Article 29 of the Convention on the Rights of the Child, 1989 explicitly
referred to the need for the education of the child to be directed inter alia
to 'the development of respect for the natural environment'.
The final text of the Conference on Security and Co-operation in
Europe (CSCE) meeting on the environment in Sofia in 1989 reaffirmed
respect for the right of individuals, groups and organisations concernedwith the environment to express freelytheir views, to associate with others
'"ee

''

also the UN Convention to Combat Desertification, 1994, ibid., p. 1328.
See generally http://~t~tw.gefweb.org/.
See, for example, M. Pallemaerts, 'International Environmental Law from Stockholm to
Rio: Rack to the Future?' in Sands, Greeninglnternutional Latv, pp. 1, 8; Environnement etdroits de l'lzonnne (ed. P. Kromarek), Paris, 1987; G. Alfredssoil and A. Ovsiouk, 'Human
Rights and the Environment', 60 Nordic Jonrnal oflnternntional Law, 1991, p. 19; M! P.
Gormley, Hilman Rights andEnvironnlent, Leiden, 1976; Hilman Rights andEnvironlilental
Protection (ed. A. C a n ~ a d oTrindade), 1992; D. Shelton, 'Whatever Happened in Rio to
Humail Rights?', 3 Yearbook of Iilterilational En~~ironmeiltal
Law, 1992, p. 75; Birilie andpp. 252 ff., and Htnnlun Rights Approaches
Boyle, Iilterilutional Law and the Ei~vironn~ent,
to Enviroilmental Protectioil (eds. M . Ailderson and A. E. Boyle), Oxford, 1996. See also
M. Dejeant-Pons and M. Pallemaerts, Human Rights and the Eilvironinent, Council ofEurope, 2002.

INTERNATIONAL ENVIRONMENTAL LAW

757

and assemble peacefully, to obtain and distribute relevant information andto participate in public debates on environmental issues.'' It should also
be noted that the Convention on Environmental Impact Assessment in a
Transboundary Context, 1991 calls for the 'establishment of an environmental impact assessment procedure that permits public participation'in certain circumstances.
However, the references to human rights in the Rio Declaration on
Environment and Development adopted at the UN Conference on Environment andDevelopment in 199216are rather sparse. Principle 1 declaresthat human beings are 'at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony withnature.' Beyond this tangential reference, human rights concerns werenot, it is fair to say, at the centre of the documentation produced by the
1992 conference. In fact, it is fair to say that the focus of the conference
was rather upon states and their sovereign rights than upon individuals
and their rights.
Nevertheless, moves to associate the two areas of international law areprogressing cautiously. In 1994, the final report on Human Rights and theEnvironment was delivered to the UN Sub-Commission on Prevention ofDiscrimination and Protection of Minorities (as it was then called)."The
Report contains a set of Draft Principles on Human Rights and the Environment, which includes the notion that 'human rights, an ecologicallysound environment, sustainable development and peace are interdependent and indivisible' and that 'all persons have the right to a secure, healthy
and ecologically sound environment. This right and other human rights,
including civil, cultural, economic, political and social rights, are universal, interdependent and indivisible.' It remains to be seen whether thisinitiative will bear fruit.18 The Institut de Droit International, a private
but influential association, adopted a resolution on the environment at its
Strasbourg Session in September 1997. Article 2 of this noted that 'Every
human being has the right to live in a healthy environment'.
An important stage has been reached with the adoption of the Aarhus
Convention on Access to Information, Public Participation in DecisionMaking and Access to Justice in Environmental Matters, 1998,19 which
l5 CSCEISEM.36. See also EC Directive 901313, 1990.
l6 See generally, as to the Rio Conference, S. Johnson, Tlle Earth Summit, Dordrecht, 1993.

ElCN.4lSub.21199419.
Note also the European Charter on Environment and Health, 1989 and the Dublin Declaration on the Enviroilmeiltal Imperative adopted by the European Council, 1990.
l9 Adopted through the United Nations Economic Commission for Europe. The Convention
andcame into force on 30 October 2001, see generally l~ttp:ll~vcc~~.unece.orglei~vippi,
l7
l8

758

I N T E R N A T I O N A L LAW

explicitly links human rights and the environment and recognises that'adequate protection of the environment is essential to human well-being
and the enjoyment ofbasic human rights, including the right to life itself'.
Article 1 provides that each contracting party 'shall guarantee the rightsof access to information, public participation in decision-making and access to justice in environmental matters' and thereby marks the acceptanceby parties of obligations towards their own citizens. Article 9 stipulates
that parties should establish a review procedure before a court of law
or other independent and impartial body for any persons who consider
that their request for information has not been properly addressed, andarticle 15 provides that 'optional arrangements of a non-confrontational,
non-judicial and consultative status' should be established for reviewing compliance with the Convention. Such arrangements are to allow for
appropriate public involvement 'and may include the option of considering communications from members of the public on matters relating
to this Convention'. Decision 117 adopted on 30 October 2002 set up
an eight-member Compliance Committee to consider submissions madewith regard to allegations of non-compliance with the Convention by one
party against another or by members of the public against any contracting party unless that party has opted out of the procedure within one
year of becoming a party. The Committee may also prepare a report oncompliance with or implementation of the provisions of the Convention
and monitor, assess and facilitate the implementation of and compliancewith the reporting requirements made under article 10, paragraph 2, of
the Convention and specified in Decision 118.~'
The question of the relationship between the protection of the environment and the need for economic development is another factor
underpinning the evolution of environmental law. States that are currently-attempting to industrialise face the problem that to do so in anenvironmentally safe way is very expensive and the resources that can be
devoted to this are extremely limited. The Stockholm Declaration of theUnited Nations Conference on the Human Environment 1972 emphasised in Principle 8 that 'economic and social development is essential for*'the first meeting of states parties took place in October 2002. Note that governments
accepted in January 2003 a Protocol which will oblige companies to register annually theirreleases into the environment and transfers to other companies of certain pollutants. This
information will then appear in the Pollutant Release and Transfer Register.
See generally R. R. Churchill and G. Uffstein, 'A~~tonoinous
Institutional Arrangements in
Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International
Law: 94 AJIL, 2000, p. 623.

INTERNATIONAL ENVIRONMENTAL LAW

759

ensuring a favourable living and working environment for man and for
creating conditions on earth that are necessary for the improvement of thequality of life', while the sovereign right of states to exploit their own resources was also stressed.21Principle 2 of the Rio Declaration, adopted at
the United Nations Conference on Environment and Development 1992,
noted that states have 'the sovereign right to exploit their own resources
pursuant to their own environmental and developmental policies', while
Principle 3 stated that 'the right to development must be fulfilled so as
to equitably meet developmental and environmental needs of present
and future generations'. The correct balance between development andenvironmental protection is now one of the main challenges facing theinternational community and reflects the competing interests posed by
the principle of state sovereignty on the one hand and the need for international co-operation on the other. It also raises the issue as to how
far one takes into account the legacy for future generations of activities
conducted at the present time or currently planned. Many developmental activities, such as the creation of nuclear power plants for example,
may have significant repercussions for many generations to come.22The
Energy Charter Treaty23signed at Lisbon in 1994 by OECD and Eastern
European and CIS states refers to environmental issues in the context
of energy concerns in a rather less than robust fashion. Article 19 notesthat contracting parties 'shall strive to minimise in an economically efficient manner harmful environmental impacts'. In so doing, parties are toact 'in a cost-effective manner'. Parties are to 'strive to take precautionary measures to prevent or minimise environmental degradation' andagree that the polluter should 'in principle, bear the cost of pollution,
including transboundary pollution, with due regard to the public interest
and without distorting investment in the energy cycle or international
trade'.

" Principle 21. See also S. P. Subedi, 'Balancing International Trade with Environmental
Protection', 25 Brooklyiz Journal of Internatioizal Law, 1999, p. 373, and T. Schoenbaum,'International Trade and Protection of the Environment: 91 AJIL, 1997, p. 268.
22 See e.g. A. D'Amato, 'Do We Owe a Duty to Future Generations to Preserve the Global
Environment?', 84 AJIL, 1990, 17. 190; Sands, Principles, p. 199; E. Il'eiss, 'Our Rights
and Obligations to Future Generations for the Environment', 84 AJIL, 1990, p. 198, andIieiss, Irltergenerational Equity. See also Minors Oposa v. Secretary of the Department ofEnviror~rnentand Natural Resotlrces, Supreme Court of the Philippines, 33 ILM, 1994,
pp. 173, 185, and Judge Weramantry's Dissenting Opinion in the Request for an Exarnination of the Situation in Accordance ivith Paragraph 63 o f the N14clear Tests Case, ICT
Reports, 1995, pp. 288, 341.
33 ILM, 1995, p. 360.

''

760

I N T E R N A T I O N A L LAW

One potentially innovative method for linking economic underdevelopment and protection of the environment is the 'debt for nature swaps'
arrangement, whereby debts owed abroad may be converted into an obligation upon the debtor state to spend the amount of the debt upon local
environment projects.24
State responsibility and the environment 2 'The busic duty of states
The principles of state responsibility26dictate that states are accountablefor breaches of international law. Such breaches of treaty or customaryinternational law enable the injured state to maintain a claim against
the violating state, whether by way of diplomatic action or by way of
recourse to international mechanisms where such are in place with regard
to the subject matter at issue. Recourse to international arbitration or to
the International Court of Justice is also possible provided the necessary
jurisdictional basis has been established. Customary international law
imposes several important fundamental obligations upon states in the areaof environmental protection. The view that international law supports anapproach predicated upon absolute territorial sovereignty, so that a state
could do as it liked irrespective of the consequences upon other states,
has long been discredited. The basic duty upon states is not so to act as
to injure the rights of other states.27This duty has evolved partly out of
the regime concerned with international waterways. In the International
Commission on theRiver 0der case,28for example, the Permanent Court ofInternational Justice noted that 'this community of interest in a navigableriver becomes the basis of a common legal right, the essential featuresof which are the perfect equality of all riparian states in the use of thewhole course of the river and the exclusion of any preferential privileges" See e.g. F. G. Minujin, 'Debt-for-Nature Swops: A Financial Mechanism to Reduce Debt
and Preserve the Environment: 21 Environmental Policy and L n ~ v ,1991, p. 146, and
S. George, The Debt Boomerang, London, 1992, pp. 30-1.
See e.g. A. D. Smith, State Responsibility and tlze Marine Environnlerrt, Oxford, 1988. See
also R. Lefeber, Trarlsboundary Erlvironnlental Interference and the Origin of State Liability,
Dordrecht, 1996.
26 See further above, chapter 14.
See the doctrine expressed by Judson Harmon, Attorney-General of the United States in
1895,21 Op. Att'y. Gen. 274,283 (1895), cited in Nanda, Interrlatioilal Enviroilrnental Law,
pp. 155-6.
PCIJ, Series A, No. 23 (1929); 5 AD, p. 83.

''

''

'*

INTERNATIONAL ENVIRONMENTAL LAW

76lof any riparian state in relation to others:29 But the principle is of far wider
application. It was held in the Island of Palmas case3' that the concept ofterritorial sovereignty incorporated an obligation to protect within the
territory the rights of other states.
In the Trail Smelter arbitrati01-1,~~
the Tribunal was concerned witha dispute between Canada and the United States over sulphur dioxide
pollution from a Canadian smelter, built in a valley shared by British
Columbia and the state of Washington, which damaged trees and crops
on the American side of the border. The Tribunal noted that:
under principles of international law, as well as the l a ~ ofv the United States,n o state has the right to use or permit the use of territory in such a manner
as t o cause injury by fumes in or t o the territory of another or the properties
or persons therein, when the case is of serious consequence and the injury
is established by clear and convincing evidence.j2

The International Court reinforced this approach, by emphasising in
the Corfu Channel case33that it was the obligation of every state 'not toallow knowingly its territory to be used for acts contrary to the rights ofother ~ t a t e s ' . ~ q hCourtealso noted in the Request for a n Examinationof the Situation i n Accordance with Paragraph 63 of the Nuclear Tests Case
1974 case in 1995, that its conclusion with regard to French nuclear testingin the Pacific was 'without prejudice to the obligations of states to respect
and protect the e n ~ i r o n r n e n t ' .In~ ~addition, in its Advisory Opinion to
the UN General Assembly on the Legality of the Threat or Use of Nuclear
Weapons, the Court declared that 'the existence of the general obligation ofstates to ensure that activities within their jurisdiction and control respect
PCIJ, Series A, No. 23 (1929), p. 27; 5 AD, p. 84.
2 R I M , pp. 829,839 (1928).
See 33 AJIL, 1939, p. 182 and 35 AJIL, 1941, p. 684; 9 AD, p. 315. See also J. E. Read,'The Trail Smelter Arbitration', 1 Canadian PIL, 1963, p. 213; R. Kirgis, 'Technological
Challenge of the Shared Environment: US Practice: 66 AJIL, 1974, p. 291, and L. Goldie,'A General View of International Environmental Law - A Survey of Capabilities, Trends
and Limits' in Hague Colloi~ue1973, pp. 26, 66-9.
35 AJIL, 1941, p. 716; 9 AD, p. 317. Canada invoked the Trail Snzelter principle against theUnited States when an oil spill at Cherry Point, Washington, resulted in contamination ofbeaches in British Columbia: see 11 Canadian YIL, 1973, p. 333.
j3 ICJ Reports, 1949, pp. 4, 22; 16 AD, pp. 155, 158.
34 See also the Dissenting Opinion of Judge de Castro in the Nuclear Tests case, ICJ Reports,
1974, p p 253,388; 57 ILR, pp. 350,533, and the Lac Lunoux case, 24 ILR, p. 101.
" ICJ Reports, 1995, pp. 288, 306.
29

O'

''

762

I N T E R N A T I O N A L LAW

the environment of other states or of areas beyond national control is now
part of the corpus of international law relating to the e n ~ i r o n m e n t ' . ~ ~This judicial approach has now been widely reaffirmed in international
instruments. Article 192 of the Law of the Sea Convention, 1982 provides
that 'states have the obligation to protect and preserve the marine environment', while article 194 notes that 'states shall take all measuresnecessary to ensure that activities under their jurisdiction and control areso conducted as not to cause damage by pollution to other states and theirenvironmenC3' The shift of focus from the state alone to a wider perspective including the high seas, deep seabed and outer space is a noticeablede~elopment.~~
It is, however, Principle 21 of the Stockholm Declaration of 1972 thatis of especial significance. It stipulates that, in addition to the sovereign
right to exploit their own resources pursuant to their own environmental policies, states have 'the responsibility to ensure that activities within
their jurisdiction or control do not cause damage to the environmentof other states or of areas beyond the limits of national jurisdiction'. Although a relatively modest formulation repeated in Principle 2 of the Rio
Declaration 1992, it has been seen as an important turning-point in thedevelopment of international environmental law."9 Several issues of importance are raised in the formulation contained in Principle 21 and to
those we now turn.

T h e appropriate standard
It is sometimes argued that the appropriate standard for the conductof states in this field is that of strict liability. In other words, states areunder an absolute obligation to prevent pollution and are thus liable
for its effects irrespective of fault.40 While the advantage of this is theincreased responsibility placed upon the state, it is doubtful whether
ICJ Reports, 1996, para. 29; 35 ILM, 1996, pp. 809,821. See also the Gabtikovo-Nagymaros
Project case, ICJ Reports, 1997, pp. 6, 67; 116 ILR, p. 1.
See also Principle 3 of the UN Environment Programme Principles of Conduct in the
Field of the Environment concerning Resources Shared by Two or More States, 1978; theCharter of Economic Rights and Duties of States adopted in General Assembly resolution
1974 3281 (XXIX) and General Assembly resolution 341186 (1979).
" See Boyle, 'Nuclear Energy', p. 271.
39 See e.g. Kiss, Survey, p. 25, and 'International Protection', p. 1075. See also the preamble
to the Convention on Long-Range Transboundary Air Pollution, 1979.
See e.g. Goldie, 'General View', pp. 73-85, and Schneider, World Public Order, chapter 6.
See also G. Handl, 'State Liability for Accidental Transnational Environmental Damage

j6

"

"

INTERNATIONAL ENVIRONMENTAL LAW

763

international law has in fact accepted such a general p r i n ~ i p l e . ~The'leading cases are inconclusive. In the Rail Smelter case42 Canada's responsibility was accepted from the start, the case focusing upon the compensation due and the terms ofthe future operation ofthe smelter," while
the strict theory was not apparently accepted in the Corfu Channel case.44
In the Nuclear Tests case45the Court did not discuss the substance of theclaims concerning nuclear testing in view of France's decision to end its
programme.
It is also worth considering the Gut Dam arbitration between the US
and Canada.4hThis concerned the construction of a dam by the Canadianauthorities, with US approval, straddling the territory of the two states,in order to facilitate navigation in the St Lawrence River, prior to theexistence of the Seaway. The dam affected the flow of water in the river
basin and caused an increase in the level of water in the river and in Lake
Ontario. This, together with the incidence of severe storms, resulted inheavy flooding on the shores of the river and lake and the US government
claimed damages. The tribunal awarded a lump sum payment to the US,
without considering whether Canada had been in any way negligent or
at fault with regard to the construction of the dam. However, one must
be cautious in regarding this case as an example of a strict liability approach, since the US gave its approval to the construction of the dam on
the condition that US citizens be indemnified for any damage or detriment incurred as a result of the construction or operation of the dam inquestion.47
Treaty practice is variable. The Convention on International Liability
for Damage Caused by Space Objects, 1972 provides for absolute liability for damage caused by space objects on the surface of the earth or toaircraft in flight (article 11), but for fault liability for damage caused elsewhere or to persons or property on board a space object (article I I I ) . ~ ~by Private Persons', 74 AJIL, 1980, p. 525; Birnie and Boyle, International Law and theEnvironment, pp. 182 ff. and Sands, Principles, pp. 637 ff.
41 See e.g. Boyle, 'Nuclear Energy', pp. 289-97, and Handl, 'State Liability', pp. 535-53.
42 33 AJIL, 1939, p. 182 and 35 AJIL, 1941, p. 681; 9 AD, p. 315.
43 See Boyle, 'Nuclear Energy: 17.292,and G. Handl, 'Balancing of Interests and International
Liability for the Pollution of International Watercourses: Customary Principles of Law
Revisited', 13 Canadian YIL, 1975, pp. 156, 167-8.
'"CJ
Reports, 1949, pp. 4,22-3; 16 AD, pp. 155, 158.
ICJ Reports, 1974, p. 253; 57 ILR, p. 350.
46 8 ILM, 1969, p. 118.
See Schneider, World Public Order, p. 165. Cf. Handl, 'State Liability', pp. 525, 538 ff.
48 See e.g. the Canadian claim in the Cosmos 954 incident, 18 ILM, 1992, p. 907.

"
"

764

I N T E R N A T I O N A L LAW

Most treaties, however, take the form of requiring the exercise of diligent
control of sources of harm, so that responsibility is engaged for breachesof obligations specified in the particular instrument^.^^
The test of due diligence is in fact the standard that is accepted generally as the most appropriate one.'' Article 194 of the Convention on
the Law of the Sea, 1982, for example, provides that states are to take 'allmeasures.. .that are necessary to prevent, reduce and control pollutionof the marine environment from any source, using for this purpose thebest practicable means at their disposal and in accordance with their capabilities'. Accordingly, states in general are not automatically liable fordamage caused irrespective of all other factors. However, it is rather lessclear what is actually meant by due diligence. In specific cases, such as theConvention on the Law of the Sea, 1982, for example, particular measures
are specified and references made to other relevant treaties. In other cases,
the issue remains rather more ambiguous." The test of due diligence undoubtedly imports an element of flexibility into the equation and must
be tested in the light of the circumstances of the case in question. States
will be required, for example, to take all necessary steps to prevent substantial pollution and to demonstrate the kind of behaviour expected of'good government'," while such behaviour would probably require theestablishment of systems of consultation and notification.j3 It is also important to note that elements of remoteness and foreseeability are part" See e.g. article 1 of the London Con\~ention

011 the Prevention of Marine Pollution by
Dumping of Wastes, 1972; article 2 of the Convention on Long-Range Transboundary
Air Pollution, 1979; article 2 of the \'ienna Convention for the Protection of the Ozone
Layer, 1985 and articles 139, 194 and 235 of the Convention on the Law of the Sea,
1982; articles 7 and 8 ofthe Convention for the Regulation ofAntarctic Mineral Resources
Activities, 1988 andarticle 2 ofthe Convention onthe Protection anduse ofTransboundary
Watercourses and International Lakes, 1992. See also the Commentary by the International
Law Commission to article 7 of the Draft Articles on the Law of the Non-Navigational
Uses of International Watercourses, Report of the International La~vCommission, 46th
Session, 1994, pp. 236 ff.
'O This is the view taken by the ILC in its Commentary on the Draft Articles on Preventionof Trailshoundary Harm from Hazardous Activities, 2001, Report of the ILC on its 53rd
Session, Al56110, p. 392. See also e.g. H a n d , 'State Liability', pp. 539-40; Aoyle, 'Nuclear
Energy: p. 272, and Birnie and Boyle, International Law and the Environment, pp. 112 ff.
See e.g. the Long-Range Transboundary Air Pollution Convention, 1979.
" 1.e. the standard of conduct expected from a government mindful of its international
obligations: see R. J. Dupuy, 'International Liability for Transfrontier Pollution', in Bothe,
Treizds in Eilvironiilental Policy aild Law, pp. 363, 369.
j3 See Responsibility und Liubility of States ill Relation to Trnilsfrontier Pollutioil, an OECD
Report by the Environineilt Committee, 1984, p. 4.

"

INTERNATIONAL ENVIRONMENTAL LAW

765

of the framework of the liability of states. The damage that occurs musthave been caused by the pollution under consideration. The tribunal in
the Trail Smelter case5%mphasised the need to establish the injury 'by
clear and convincing evidence'.
Damage caused
The first issue is whether indeed any damage must actually have beencaused before international responsibility becomes relevant. Can there
be liability for risk of damage? It appears that at this stage internationallaw in general does not recognise such a liability,'' certainly outside of
the category of ultra-hazardous activities.j6This is for reasons both ofstate reluctance in general and with regard to practical difficulties inparticular. It would be difficult, although not impossible, both to assess the risk involved and to determine the compensation that might bedue.
However, it should be noted that article l(4) of the Convention on
the Law of the Sea, 1982 defines pollution of the marine environment
as 'the introduction by man, directly or indirectly, of substances or energy into the marine environment. . . which results or is likely to result
i n . . . deleterious effects'. In other words, actual damage is not necessary
in this context. It is indeed possible that customary international law may
develop in this direction, but it is too early to conclude that this has already occurred. Most general definitions of pollution rely upon damage
or harm having been caused before liability is engaged.57
The next issue is to determine whether a certain threshold of damage
must have been caused. In the Trail S m e l t e r ~ a s ethe
, ~ ~Tribunal focused on
the need to show that the matter was of 'serious consequence: while article
1 of the Convention on Long-Range Transboundary Air Pollution, 1979
provides that the pollution concerned must result 'in deleterious effectsof such a nature as to endanger human health, harm living resources and
35 AJIL, 1941, p. 716; 9 AD, p. 317.
' 6 See below, p. 795.
See e.g. Kiss, 'International Protection', p. 1076.
See also the commentary to the Montreal Rules adopted by the ILA in 1982, Reportof the Sixtieth Conference, p. 159. Note, however, that the International Law Commission's Draft Articles o n Prevention of Transboundary Harm from Hazardous Activities,
adopted in 2001, concern activities not prohibited by international law which involve a'risk of causing significant transboundary harm', Report of the ILC o n its 53rd Session,p. 380.
35 AJIL, 1941, p. 716; 9 AD, p. 317.

'*

766

I N T E R N A T I O N A L LAW

ecosystems and material property and impair or interfere with amenities and other legitimate uses of the environment'.j9 Article 3 of the ILA
Montreal Rules 1982 stipulates that states are under an obligation to prevent, abate and control transfrontier pollution to such an extent that nosubstantial injury is caused in the territory of another state.60Such formulations do present definitional problems and the qualification as tothe threshold of injury required is by no means present in all relevant
instrument^.^' The issue of relativity and the importance of the circumstances of the particular case remain significant factors, but less support
can be detected at this stage for linkage to a concept of reasonable andequitable use of its territory by a state occasioning liability for use beyond
this.62
As far as the range of interests injured by pollution is concerned, theTrail Smelter case6' focused upon loss of property. Later definitions ofpollution in international instruments have broadened the range to include harm to living resources or ecosystems, interference with amenities
and other legitimate uses of the environment or the sea. Article l ( 4 ) of theConvention on the Law of the Sea, 1982, for example, includes impairment of quality for use of sea water and reduction of amenities. Articlel(2) of the Vienna Convention on the Ozone Layer, 1985 defines adverse
effects upon the ozone layer as changes in the physical environment including climatic changes 'which have significant deleterious effects onhuman health or on the composition, resilience and productivity of natural and managed ecosystems or on materials useful to mankind',64while
Note also that General Assembly resolution 2995 (XXVII) refers to 'significant harmful
results: See also article 1 of the ILC's Draft Articles on Prevention of Transboundary Harmfrom Hazardous Activities, Report of the ILC on its 53rd Session, p. 380.
Note the formulation by L. Oppenheim, International Law, 8th edn, London, 1955, vol. I,
p. 291, that the interference complained of must be 'unduly injurious to the inhabitantsof the neighbouring state'.
See e.g. Principle 21 of the Stockholm Declaration and article 194 of the Convention on
the Law of the Sea, 1982.
See the views of e.g. R. Quentin-Baxter, Yearbook of the ILC, 1981, vol. 11, part 1, pp.
112-19, and S. McCaffrey, ibid., 1986, uol. 11, part 1, pp. 133-4. See also Boyle, 'Nuclear
Energy', p. 275, and 'Chernobyl and the Development of International Environmental
Law' in M! Butler (ed.), Pevestroika and International Latv, London, 1990, pp. 203, 206.
6 z 35 AJIL, 1941, p. 684; 9 AD, p. 315. See also A. Rubin, 'Pollution by Analogy: The Trail
Smelter Arbitration', 50 Oregori Latv Review, 1971, p. 259.
64 See also the OECD Recommendation of Equal Right ofAccess in Relation to Transfrontier
Pollution, 1977 and article l(15) ofthe Convention on the Regulation ofAntarctic Mineral
Resource Activities, 1988.
j9

'"
"
"

INTERNATIONAL ENVIRONMENTAL LAW

767

the Climate Change Convention, 1992 defines adverse effects of climatechange as 'changes in the physical environment or biota resulting fromclimate change which have significant deleterious effects on the composition, resilience or productivity of natural and managed ecosystems or on
the operation of socio-economic systems or on human health and welfare'.6" The Convention on Regulation of Antarctic Mineral Resources,
1988" defines damage to the environment and ecosystem of that polar
region as 'any impact on the living or non-living components of that environment or those ecosystems, including harm to atmospheric, marineor terrestrial life, beyond that which is negligible or which has been assessed and judged to be acceptable pursuant to [the] onv vent ion'.^^ The
Convention on the Protection and Use of Transboundary Watercourses
and International Lakes, 1992 defines 'transboundary impact', which isthe subject of provision, in terms of 'any significant adverse effect on theenvironment resulting from a change in the conditions of transboundarywaters caused by a human activity'.68The Council of Europe's Convention on Civil Liability for Environmental Damage, 1993 defines damage, ~ ~ theto include loss or damage by 'impairment of the e n ~ i r o n m e n t 'whileenvironment itself is taken to include natural resources both abiotic andbiotic, property forming part of the cultural heritage and 'the characteristic aspects of the landscape'.70 The type of harm that is relevant clearly
now extends beyond damage to property,71 but problems do remain withregard to general environmental injury that cannot be defined in material
forrn.j2
65 Article l(1).

See generally on Antarctica, C. Redgvell, 'Environmental Protection in Antarctica: The
1991 Protocol: 43 ICLQ, 1994, p. 599, and above, chapter 9, p. 455. See also, with regard to the Arctic, D. R. Rothwell, 'International Law and the Protection of the Arctic
Environment: 44 ICLQ, 1995, p. 280.
h7 Article l(15).See also article 2 of the Convention on Environmental Impact Assessment
in a Transboundary Context, 1991 and article 1 of the Code of Conduct on Accidental
Pollution of Transboundary Inland Waters, 1990.
Article l(2).
Article 2(7)c.
" Article 2(10).See also article 1 ofthe ILC's Draft Articles on Prevention of Transboundary
Harm from Hazardous Activities, Report of the ILC on its 53rd Session, p. 380.
Note that the Canadian claim for clean-up costs consequeiltial upon the crash of a Soviet
nuclear-powered satellite was settled: see 18 ILM, 1979, p. 902.
'2 Note that Security Council resolution 687 (1991) declared that Iraq was liable underinternational law inter alia 'for any direct loss, damage, including environmental damage
and the depletion of natural resources' occurring as a result of the unlawful invasion andoccupation of Kuwait.
hh

"
"

"

768

I N T E R N A T I O N A L LAW

Liability for damage caused by private persons
A particular problem relates to the situation where the environmental
injury is caused not by the state itself but by a private party.73 A stateis, of course, responsible for unlawful acts of its officials causing injury
to nationals of foreign statesi%nd retains a general territorial competence under international law. In general, states must ensure that theirinternational obligations are respected on their territory. Many treaties
require states parties to legislate with regard to particular issues, in orderto ensure the implementation of specific obligations. Where an international agreement requires, for example, that certain limits be placed uponemissions of a particular substance, the state would be responsible for any
activity that exceeded the limit, even if it were carried out by a private
party, since the state had undertaken a binding commitment." Similarly
where the state has undertaken to impose a prior authorisation procedure upon a particular activity, a failure so to act which resulted in pollution violating international law would occasion the responsibility of thestate.
In some cases, an international agreement might specifically provide
for the liability of the state for the acts of non-state entities. Article
6 of the Outer Space Treaty, 1967, for example, stipulates that states
parties bear international responsibility for 'national activities in outerspace. . . whether such activities are carried out by governmental agencies
or by non-governmental agencies'.i6--

Prevention of transboundary harm from hazardous activities "The International Law Commission started considering in 1978 the topic
of 'International Liability for the Injurious Consequences of Acts Not" See e.g. Handl, 'State Liability: and G. Doeker and T. Gehring, 'Private or International Lia-bility for Transnational Environmental Damage - The Precedent of Conventional Liability
Regimes: 2 Journal of Environmental Law, 1990, p. 1.
'4 See above, chapter 14.
" See below, p. 782.
76 See also article I of the Convention on International Liability for Damage Caused by Space
Objects, 1972 and article XIV of the Moon Treaty, 1979. See further below, p. 801, with-- regard to civil liability schemes.
" See e.g. 1. Barboza, 'International Liability for the Injurious Consequences of Acts not
Prohibited by International Law and Protection of the Environment: 247 HR, 1994 111,
p. 291; A. Boyle, 'State Responsibility and International Liability for Injurious Consequences of Acts not Prohibited by International Law: A Necessary Distinction?', 39 ICLQ,
1990, p. 1; M. Akehurst, 'International Liability for Injurious Consequences Arising outof Acts not Prohibited by International Law', 16 Netherlands YIL, 1985, p. 3; D. B.
-?

INTERNATIONAL ENVIRONMENTAL LAW

769

Prohibited by International ~ a w and' ~ the~ main focus of the work of
the Commission was on environmental harme7' It was argued that international liability differed from state responsibility in that the latter isdependent upon a prior breach of international law," while the former
constitutes an attempt to develop a branch of law in which a state may
be liable internationally with regard to the harmful consequences of anactivity which is in itself not contrary to international law. This was acontroversial approach. The theoretical basis and separation from state
responsibility were questioned.8' The ILC revised its work and eventually adopted Draft Articles on Prevention of Transboundary Harm from
Hazardous Activities in 2001.'~
Article 1 of the Draft provides that the articles are to apply to activities
not prohibited by international law which involve a 'risk of causing significant transboundary harm through their physical consequences'. The
Commentary to the Draft Articles specifies that the notion of risk is to betaken objectively 'as denoting an appreciation of possible harm resulting
from an activity which a properly informed observer had or ought to have
had'.83 Members of the Commission had in the past been divided as towhether the focus of the topic should be upon risk or upon harm;84this
now appears settled. Article 2 of the Draft provides that 'risk of causing significant transboundary harm' is to be defined as including 'a highprobability of causing significant transboundary harm and a low probability of causing disastrous transboundary harm'.8"n other words, therelevant threshold is established by a combination of risk and harm andMagram: 'Transboundary Harm: The International Law Commission's Study ofInternational Liability', 80 AJIL, 1986, p. 305, and C. Tomuschat, 'International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law:
The Work of the International Law Commission' in Iilternational Responsibility for Eilvironmental Hart11 (eds. F. Francioni and T. Scovazzi), London, 1991, p. 37. See also
Birnie and Boyle, Internatiorlal Law and the Eilvironi~lent,p. 105, and Sands, Priilciples,
p. 650.
See Yearbook of the ILC, 1978, vol. 11, part 2, p. 149.
See e.g. Quentin-Baxter's preliminary report, Yearbook of the ILC, 1980, vol. 11, part 1,
p. 24.
80 See above, chapter 14.
See e.g. Boyle, 'State Responsibility', 17. 3, and I. Brownlie, Systern of the Law of Aiations:
State Responsibility, Part I, Oxford, 1983, p. 50.
Report of the ILC on its 53rd Session, 17. 379.
Ibid., p. 385.
84 See e.g. S. McCaffrey, 'The Fortieth Session of the International Law Commission: 83
ATIL, 1989, pp. 153, 170, and McCaffrey, 'The Forty-First Session ofthe International Law
Comn~ission',83 AJIL, 1989, pp. 937, 944.
Report of the ILC on its 53rd Session, p. 386.

"

770

I N T E R N A T I O N A L LAW

this threshold must reach a level deemed 'signifi~ant'.'~The International
Law Commission has taken the view that this term, while factually based,means something more than 'detectable', but need not reach the level of'serious' or '~ubstantial:'~The state of origin (i.e. where the activities aretaking place or are to take place) 'shall take all appropriate measures toprevent significant transboundary harm or at any event to minimise the
The relevant test is that of due diligence, this being thatrisk there~f'.~'which is generally considered to be appropriate and proportional to thedegree of risk of transboundary harm in the particular instance and thistest requires the state to keep up to date with technological and scientificdevelopment^.'^States are to co-operate in good faith in trying to prevent such activities from causing significant transboundary injury and in minimising
the effects of the risk, and they are to seek the assistance as necessary
The state is to take legislaof competent international ~rganisations.~'
tive, administrative and other action, including- the establishment of suitable monitoring mechanisms to implement the provisions in the draft
article^,^' and is to require prior authorisation for any activities within
the scope of the article.92In deciding upon such authorisation, the statemust base its answer on an assessment of the possible transboundary. ~a~risk is inharm, including any environmental impact a s s e ~ s m e n t 1f
deed indicated by such an assessment, timely notification must be madeg4'
theto the state likely to be affected and information p r ~ v i d e d , ~whilestates concerned are to enter into consultation with a view to achieving
acceptable solutions regarding measures to be adopted in order to prevent or minimise the risk of causing significant transboundary harm or tominimise the risk thereof. Such solutions must be based on an equitablebalance of interestsg6
Article 10 of the Draft lays down a series of relevant factors and circumstances in achieving this 'equitable balance of interests'. These include
the degree of risk of significant transboundary harm and the availabilityof means of preventing or minimising such risk or of repairing the harm;
the importance of the activity, taking into account its overall advantages
86 Ibid.,p. 387. See also article 1 of the Code of Conduct o n Accidental Pollution of Trans-boundary Inland Waters adopted by the Economic Commission for Europe in 1990.
" Draft article 3.
Report of ILC o n its 53rd Session, p. 388.
89 Report of the ILC o n its 53rd Session, p. 394.
Draft article 4.
" Draft article 5.
Draft article 6.
Draft article 7.
9"raftarticles 8 and 17.
Draft article 8. See also draft articles 12, 13 and 14.
Draft article 9.

"
"

"

"

"

INTERNATIONAL ENVIRONMENTAL LAW

77l

of a social, economic and technical character for the state of origin in
relation to the potential harm for the states likely to be affected; the riskof significant harm to the environment and the availability of means ofpreventing or minimising such risk or restoring the environment; theeconomic viability of the activity in relation to the costs of prevention
demanded by the states likely to be affected and to the possibility of carrying out the activity elsewhere or by other means or replacing it withan alternative activity; the degree to which the states likely to be affected
are prepared to contribute to the costs of prevention; and the standardsof protection which the states likely to be affected apply to the same orcomparable activities and the standards applied in comparable regional
or international practice.97

The pvoblenzs of the state responsibility approach
The application of the classical international law approach, founded uponstate responsibility for breaches of international obligations and the requirement to make reparation for such breaches, to environmental problems is particularly problematic. The need to demonstrate that particular damage has been caused to one state by the actions of another statemeans that this model can only with difficulty be applied to more thana small proportion of environmental problems. In many cases it is simply impossible to prove that particular damage has been caused by one
particular source, while this bilateral focus cannot really come to termswith the fact that the protection of the environment of the earth is truly
a global problem requiring a global or pan-state response and one thatcannot be successfully tackled in such an arbitrary and piecemeal fashion. Accordingly, the approach to dealing with environmental matters has
shifted from the bilateral state responsibility paradigm to establishment
and strengthening of international co-operation.

International co-operation
A developing theme of international environmental law, founded upongeneral principles, relates to the requirement for states to co-operate
in dealing with transboundary pollution issues. Principle 24 of theStockholm Declaration 1972 noted that 'international matters concerning
97

This article draws upon article 6 of the Convention on the Law of the Non-Navigational
Uses of International IVatercourses, 1997.

772

I N T E R N A T I O N A L LAW

the protection and improvement of the environment should be handled
in a co-operative spirit', while Principle 7 of the Rio Declaration 1992
emphasised that 'states shall co-operate in a spirit of global partnershipto conserve, protect and restore the health and integrity of the Earth's
ecosystem'. Principle 13 of the Rio Declaration refers both to national andinternational activities in this field by stating that:states shall develop national law regarding liability and compensation for
the victims of pollution and other environmental damage. States shall also
co-operate in a n expeditious and more determined manner to develop
further international law regarding liability and compensation for adverse
effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdi~tion.~'yy

The Corfu Channel case established the principle that states are notknowingly to allow their territory to be used for acts contrary to the rights
of other states and from this can be deduced a duty to inform other statesof known environmental hazards. A large number of international agreements reflect this proposition. Article 198 of the Convention on the Lawof the Sea, 1982, for example, provides that 'when a state becomes awareof cases in which the marine environment is in imminent danger of being
damaged or had been damaged by pollution, it shall immediately notify
other states it deems likely to be affected by such damage, as well as thecompetent international authorities'.looArticle 13 of the Basle Convention
on the Control of Transboundary Movement of Hazardous Wastes, 1989
provides that states parties shall, whenever it comes to their knowledge,
ensure that in the case of an accident occurring during the transboundary
movement of hazardous wastes which are likely to present risks to humanhealth and the environment in other states, those states are immediately
informed.lol
It is also to be noted that in 1974 the OECD (the Organisation for
Economic Co-operation and Development) adopted a Recommendationthat prior to the initiation of works or undertakings that might createa risk of significant transfrontier pollution, early information should be
See also Principle 27.
loo See also article 21 l(7).
ICJ Reports, 1949, pp. 4, 22; 16 AD, pp. 155, 158.
See also e.g, article 8 of the International Convention for the Prevention of Pollution
from Ships, 1973; Annex 6 of the Helsinki Convention on the Protection of the marine
Environment of the Baltic Sea, 1974 and article 9 of the Barcelona Convention for theProtection of the Mediterranean Sea, Protocol of Co-operation in Case of Emergency,
1976.

INTERNATIONAL ENVIRONMENTAL LAW

773

provided to states that are or may be affected.'02 In 1988, the OECD
adopted a Council Decision in which it is provided that states must provide information for the prevention of and the response to accidents at
hazardous installations and transmit to exposed countries the results of
their studies on proposed installations. A duty to exchange emergency
plans is stipulated, as well as a duty to transmit immediate warning toexposed countries where an accident is an imminent threat.lO"he pointis also emphasised in the Rio Declaration of 1992. Principle 18 provides
that states shall immediately notify other states of any natural disasters orother emergencies that are likely to produce sudden harmful effects on
the environment of those states, while Principle 19 stipulates that statesshall provide prior and timely notification and relevant information topotentially 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.'04
One may also point to a requirement of prior consultation. Article 5 of
the ILA Montreal Rules provides that states planning to carry out activities which might entail a significant risk of transfrontier pollution shallgive early notice to states likely to be affected. This provision builds upon,for example, the Lac Lanoux arbitration between France and Spain,'05
which concerned the proposed diversion of a shared watercourse. The
arbitral tribunal noted in-particular the obligation to negotiate in suchc i r c ~ m s t a n c e s .Some' ~ ~ treaties establish a duty of prior notification, one
early example being the Nordic Convention on the Protection of the Environment, 1974. Article 5 of the Long-Range Transboundary Air Pollution
Convention, 1979 provides that consultations shall be held, upon request,
at an early stage between the state within whose jurisdiction the activity
is to be conducted and states which are actually affected by or exposed
to a significant risk of long-range transboundary air pollution.'07 The
Title E, para. 6. See also the OECD Recommendation for the Implementation of a Regimeof Equal Right of Access and Non-Discrimination in Relation to Transfrontier Pollution,
1977, Title C, para. 8.
'03 C(88)84.
lo4 See also article 3 of the Convention on Environmental Impact Assessment in a Transboundary Context, 1991.
lo' 24 ILR, p. 101.
lo6 Ibid., p. 119. See also the North Sea Continental Shelfcases, ICJ Reports, 1969, pp. 3,46-7;
41 ILR, pp. 29, 76.
lo' Note also that article 8(b) calls for the exchange of illforination inter alia on majorchanges in national policies and in general industrial development and on their potential
impact, which would be likely to cause significant changes in long-range transbouildary
air pollution.

lo'

774

I N T E R N A T I O N A L LAW

increasing range of state practicelo' has led the International Law Association to conclude that 'a rule of international customary law has emergedthat in principle a state is obliged to render information on new or increasingpollution to a potential victim state:lo9 Article 8 of the ILC's Draft
Articles on Prevention of Transboundary Harm from Hazardous Activities 2001 provides that where an assessment indicates a risk of causing
significant transboundary harm, the state of origin is to inform the state
likely to be affected with timely notification and information and may
not take any decision on authorisation within six months of the responseof the state likely to be affected.'I0
The evolution of a duty to inform states that might be affected by thecreation of a source of new or increasing pollution has been accompaniedby consideration of an obligation to make environmental impact assessments."' This requirement is included in several t r e a t i e ~ . "Article~
204of the Convention on the Law of the Sea, 1982 provides that states should'observe, measure, evaluate and analyse by recognised scientific methods,
the risks or effects of pollution on the marine environment' and in particular 'shall keep under surveillance the effects of any activities which
they permit or in which they engage in order to determine whether these
activities are likely to pollute the marine environment'. Reports are to be
published, while under article 206, when states have reasonable grounds
for believing that planned activities under their jurisdiction or control
may cause substantial pollution of, or significant and harmful changes
to, the marine environment, 'they shall, as far as practicable, assess thelox See ILA, Report of the Sixtieth Conference, 1982, pp. 172-3.
lo9 Ibid., p. 173. See also Institut de Droit International, Resolution on Transboundary Air

Pollution, 1987, but cf. Sands, Prificiples, p. 35. Note also e.g. the UNEP Recommendation
concerning the Environment Related to Offshore Drilling and Mining within the Limitsof National Jurisdiction, 1981 and the Canada-Denmark Agreement for Co-operation
Relating to the Marine Environment, 1983.
'I'
Report ofthe ILC on its 53rd Session, p. 406. See also Principle 19 ofthe Rio Declaration,
article 3 of the Convention on Environmental Impact Assessment in a Transboundary
Context, 1991 and the Convention on the Law of the Non-Navigational Uses of International Watercourses, 1997, below, p. 791.
See e.g the UNEP Principles of Environmental Impact Assessment, 1987. See also Sands,
Principles, pp. 579 ff' I 2 See e.g. the K~lwait
Regional Convention for Co-operation on the Protection ofthe Marine
Environment from Pollution, 1978, article XI, the Nordic Environmental Protection Convention, 1974, article 6 and the Protocol on Environmental Protection to the Antarctica
Treaty, 1991, article 8. See also article 7 of the Draft Articles on Prevention of Transboundary Harm from Hazardous Activities 2001, Report of the ILC on its 53rd Session,p. 402.

"'INTERNATIONAL ENVIRONMENTAL LAW

775

potential effects of such activities on the marine environment and shallcommunicate reports of such assessment^'.^'^The EEC Council Directive 851337 provides that member states shalladopt all necessary measures to ensure that, before consent is given,projects likely to have significant effects on the environment are madesubject to an assessment with regard to their effects, while the issue wastaken further in the Convention on Environmental Impact Assessment in
a Transboundary Context, 1991. Under this Convention, states parties areto take the necessary legal, administrative and other measures to ensurethat prior to a decision to authorise or undertake aproposed activitylisted
in Appendix lll"hat is likely to cause a significant adverse transboundary impact, an environmental impact assessment is carried out. The partyof origin must notify any party which may be affected of the proposed
activity, providing full information. Once the affected party decides toparticipate in the environmental impact assessment procedure under theprovisions of the Convention, it must supply information to the partyof origin of the proposed activity at its request relating to the potentiallyaffected environment under its juri~diction."~The documentation to besubmitted to the competent authority of the party of origin is detailed inAppendix I11 and it is comprehensive. Consultations must take place between the party of origin and the affected parties concerning the potential
transboundary impact and the measures to reduce or eliminate the impact,116and in taking the final decision on the proposed activity the parties
shall ensure that due account is taken of the outcome of the environmental
impact assessment and consultations held.''' Post-project analyses may
A similar process is underway with regard to the siting of nuclear power installations: seee.g, the agreements between Spain and Portugal, 1980; the Netherlands and the Federal
Republic of Germany, 1977; Belgium and France, 1966; and Switzerland and the Federal
Republic of Germany, 1982. See also Boyle, 'Chernobyl: at p. 212.
' I 4 These activities include crude oil and certain other refineries; thermal power stations
and other combustion installations with a certain minimum power output and nuclear
installations; nuclear facilities; major cast iron and steel installations; asbestos plants;
integrated chemical installations; construction of motorways, long-distance railway lines
and long airport runways; pipelines; large trading ports; toxic and dangerous waste installations; large dams and reservoirs; major mining; offshore hydrocarbon production;
major oil and chemical storage facilities; deforestation of large areas.
'I5 If it decides not so to participate, the environmental impact assessment procedure willcontinue or not according to the domestic law and practice of the state of origin, article
3(4).
'I6 Article 5.
' I 7 Article 6(1).Account must also be taken of concerns expressed by the public ofthe affected
party in the areas likely to be affected under article 3(8).

'I3

776

I N T E R N A T I O N A L LAW

also be carried out under article 7."' Other instruments provide for suchenvironmental impact assessments11gand some international organisations have developed their own assessment requirements.12' The questionof environmental impact assessments was raised by Judge Weeramantry
in his Dissenting Opinion in the Request for an Examination o f the Situation in Accordance with Paragraph 63 of the Court's Judgment in the 1974
Nuclear Tests Case.12' It was noted that the magnitude ofthe issue brought
by New Zealand before the Court (the underground testing by France in
the South Pacific of nuclear devices) was such as to make the principleof environmental impact assessments applicable. The Judge declared that'when a matter is brought before it which raises serious environmental
issues of global importance, and a prima facie case is made out of thepossibility of environmental damage, the Court is entitled to take into
account the Environmental Impact Assessment principle in determining
its preliminary approach'.'22
Other principles of international co-operation in the field of environmental protection are beginning to emerge and inform the development oflegalnorms. Principle 15 ofthe Rio Declaration states that 'in order to protect the environment, the precautionary approach shall be widely appliedby states according to their capabilities. Where there are threats of serious
or irreversible damage,- lack of full scientific certainty shall not be used asa reason for postponing cost-effective measures to prevent environmental
degradation.' This marks a step away from the traditional approach, which
required states to act on the basis of scientific knowledge and constitutes arecognition that in certain circumstances to await formal scientific proof
may prevent urgent action being taken in time. The Vienna Convention
for the Protection of the Ozone Layer, 1985 and the 1987 Montreal Protocol to that Convention both referred in their respective preambles to'precautionary measures','23while the Bergen Ministerial Declaration on
Sustainable Development, 1990 noted that in order to achieve sustainable development, policies must be based on the precautionary principle.
It was emphasised that 'environmental measures must anticipate, prevent and attack the causes of environmental degradation' and part of
'I8
'I9
'O

'"
'"

See also Appendix \I.
See e.g. the Antarctic Environment Protocol, 1991.
See e.g. the World Bank under its Operational Directive 4.00 of 1989.
ICJ Reports, 1995, p. 345.
ICJ Reports, 1995, pp. 288, 344; 106 ILR, p. 1.
See also the preamble to the1994 Oslo Protocol to the 1979 Long-Range Transboundary
Air Pollution Convention.

'"

INTERNATIONAL ENVIRONMENTAL LAW

777

Principle 15 of the Rio Declaration was repeated. The Convention on theProtection and Use of Transboundary Watercourses and International
Lakes, 1992 provides in article 2(5)a that the parties would be guided by'the precautionaryprinciple, by virtue ofwhich action to avoid the potential transboundary impact of the release of hazardous substances shall not
be postponed on the ground that scientific research has not fully proved
a causal link between these substances, on the one hand and the potential transboundary impact, on the other'. References to the precautionary
principle appear also in the Convention on Biodiversity, 1 9 9 2 ' ~and~ inthe Convention on Climate Change, 1992.12' The principle was describedby Judge Weeramantry as one gaining increasing support as part of theinternational law of the e n ~ i r 0 n m e n t . l ~ ~Recognition has also emerged of the special responsibility of developed states in the process of environmental protection.12' Principle 7of the Rio Declaration stipulates that 'states have common but differentiated responsibilities'. In particular, it is emphasised that 'the developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures
their societies place on the global environment and of the technologies and financial resources they command', Article 3(1) of the Convention on Climate Change provides that the parties should act to protect
the climate system 'on the basis of equity and in accordance with their
124 Although the reference in the Preamble does not expressly in~rokethe term. See generally'"'"International Law and the Conservation of Biological Diversity (eds. M. Bowman and
C. Redgwell), Dordrecht, 1995.
Article 3(3).See also article 174 (ex article 130r(2)) of the EC Treaty and article 4(3) of
the OAU Ualnako Convention on the Uan of the Import into Africa and the Control ofTransboundary Movement and Management of Hazardous \\'astes within Africa, 1991.
Note also articles 5 and 6 of the Straddling Fish Stocks and Highly Migratory Fish Stocks
Agreement, 1995.
I11 his Dissenting Opinion in the Requestfor an Exarninrltion of the Siturztion in Accordrznce~vitlzParagruplz 63 ofthe CotirtlsJudgrnentin the 1974Ntlclenr Tests Case, ICJReports, 1995,
pp. 288, 342. See The Precrzutionrzry Principle and lnterrlational Lazv (eds. D. Freestoneand E. Hey), Dordrecht, 1996; P. Martin-Bidou, 'Le Principe de Precaution en Droit
Internationaldel'Environnement',103 RGDIP, 1999, p. 631, and LePrincipedePrecutltion,
Signijicntion et Consdquences (eds. E. Zaccai and J. N. Missa), Brussels, 2000; Birnie andBoyle, International Law and the Environment, pp. 115 ff. and A. Trouwborst, Evolution
and Statzrs of the Precautionary Principle in Inter~zntionalLaw, The Hague, 2002. See also
the Commentary to the ILC Draft Articles on Prevention of Transboundary Harm from
Hazardous Activities, 2001, Report of the ILC on its 53rd Session, p. 414.
See e.g. D. French, 'Developing States and International Environmental Law: The Importance of Differentiated Responsibilities', 49 ICLQ, 2000, p. 35.

778

I N T E R N A T I O N A L LAW

common but differentiated responsibilities and respective capabilities' sothat the developed countries would take the lead in combating climatechange.128
In addition, the concept of sustainable development has been evolving
in a way that circumscribes the competence of states to direct their own
development."' The International Court in the GabEikovo-Nagymaros
Project case referred specifically to the concept of sustainable developrnent,l3O while Principle 3 of the Rio Declaration notes that the right todevelopment must be fulfilled so as to 'equitably meet developmental andenvironmental needs of present and future generations'131and Principle
4 states that in order to achieve sustainable development, environmental
protection shall constitute an integral part of the development p r 0 ~ e s s . l ~ ~Principle 27 called for co-operation in the further development of international law in the field of sustainable deve10pment.l~~
The Climate
Change Convention declares in article 3(4) that 'the parties have a rightto, and should, promote sustainable development', while the Biodiversity Convention refers on several occasions to the notion of 'sustainable
use'.134Quite what is meant by sustainable development is somewhat'" See also articles 4 and 12. Note that the 1990 amendment to the 1987 Montreal Protocolon the Ozone Depleting Substances provides that the capacity of developing countries tocomply with their substantive obligations will depend upon the implementation by thedeveloped co~ultriesof their financial obligations.
See e.g. Sl~stainableDevelopn~entand International Laiv (ed. M! Lang), Dordrecht, 1995;
Sustainclble Development and Good Governance (eds. K . Ginther, E. Denters and P. de
Waart), Dordrecht, 1995; Sands, Principles, pp. 198 ff.; P. Sands, 'International Law in
the Field of Sustainable Development', 65 BYIL, 1994, p. 303; P. S. Elder, 'Sustainability', 36 McGill Law Journal, 1991, p. 832; D. McGoldrick, 'Sustainable Development andHuman Rights: An Integrated Conception', 45 ICLQ, 1996, p. 796; Internationc~lLaw
and Stlstainable Development (eds. A. Boyle and D. Freestone), Oxford, 1999; Environmentul Law, the Econorny and Sustainable Development (eds. R. Revesz, P. Sands and R.
Stewart), Cambridge, 2000; Birnie and Boyle, International Law and the Environment, p.
84, and X. Fuentes, 'Sustainable Development and the Equitable Utilisation of International \tTatercourses', 69 BYIL, 1998, p. 119. See also the Report of the ILA Committee
on Legal Aspects of Sustainable Development, ILA, Report of the Sixty-sixth Conference,
1994, p. 111 and Report of the Seventieth Conference, 2002, p. 308.
lZ0 ICJ Reports, 1997, pp. 7, 78; 116 ILR, p. 1.
13' See also Principle 1 of the Stockholm Declaration 1972.
Note that article 2(1)vii ofthe Agreement Establishing the European Bank for Reconstruction and Development, 1990 calls upon the Bank to promote 'environmentally sound andsustainable development:'33 See also Agenda 21, adopted at the Rio Conference on Environment and Development,
1992, paras. 8 and 39.
'34 See e.g. the Preamble and articles 1, 8, 11, 12, 16, 17 and 18. See also the Statement of
Principles for a Global Consensus on the Management, Conservation and Sustainable
De~~elopmentof All Types of Forests, adopted at the Rio Conference, 1992.

INTERNATIONAL ENVIRONMENTAL LAW

779

unclear and it may refer to a range of economic, environmental and social
factors.13' Clearly, however, some form of balance between these factors
will be n e ~ e s s i t a t e d . ' ~ ~Another emerging principle, more widely accepted in some countries
and regions than others, is the notion that the costs of pollution shouldbe paid by the polluter.'" Principle 16 of the Rio Declaration notes that'the polluter should, in principle, bear the costs of pollution, with due
regard to the public interests and without distorting international tradeand investment'. The principle has been particularly applied with regard
to civil liability for damage resulting from hazardous a ~ t i v i t i e s 'and~~has particularly been adopted by the Organisation for Economic Co~ ~ the European ~ o m m u n i t y . 'The~~
operation and ~ e v e l o p m e n t 'andpolluter-pays principle has been referred to both in the International
Convention on Oil Pollution Preparedness, Response and Co-operation,
1990 and in the Convention on the Transboundary Effects of Industrial
Accidents, 1992 as 'a general principle of international environmental
law:'41 Again, quite how far this principle actually applies is uncertain. It
is, in particular, unclear whether all the costs of an environmental cleanup would be covered. State practice appears to demonstrate that suchcosts should be apportioned between the parties.142
See e.g. M. Redclift, 'Reflections on the "Sustainable Development" Debate: 1 International Journal of Sustainable Development and World Ecology, 1994, p. 3. Notethat the Report of the GATT Panel on the United States Restrictions on the Importof Tuna declares that the objective of sustainable development, which includes theprotection and preservation of the environment, has been widely recognised by thecontracting parties to the General Agreement on Tariffs and Trade, 33 ILM, 1994,
p. 839.
13"otethat the General Assembly established the Commission on Sustainable De~elopment
in resolution 471191 in order to ensure an effective follo~v-upto the 1992 Conference
on Enliironment and Development as well as generally to work for the integration ofenvironment and development issues and to examine the progress of the implementationof Agenda 21 (the programme of action adopted by the Conference) in order to achievesustainable development.
See e.g. Sands, Principles, pp. 213 ff, and A. Boyle, 'Making the Polluter Pay? Alternatives to State Responsibility in the Allocation of Transboundary Environmental
Costs' in Francioni and Scovazzi, blternational Responsibility for Environmental Harm,
p. 363.
'" See further below, p. 801.
See e.g. the OECD Council Recommendations C(74)223 (1974) and C(89)88 (1989).
140 See Article 174 of the EC Treaty.
l4' See also article 2(5)b of the Convention on the Protection and Use of Transboundary
Watercourses and International Lakes, 1992.
14' See e.g. Boyle, 'Making the Polluter Pay?', p. 365, and Birnie and Boyle, International Law
and the Environment, p. 92.

"'
'"

780

I N T E R N A T I O N A L LAW

Atmospheric pollution'43
Perhaps the earliest perceived form of pollution relates to the pollution of
the air. The burning of fossil fuels releases into the atmosphere sulphur
dioxide and nitrogen oxides which change into acids and are carried bynatural elements and fall as rain or snow or solidparticles. Such acids havethe effect of killing living creatures in lakes and streams and of damaging
soils and f 0 r e ~ t s . While
I ~ ~ the airspace above the territorial domain of astate forms part of that state,'" the imprecise notion of the atmospherewould combine elements of this territorial sovereignty with areas not
so defined. The legal characterisation of the atmosphere, therefore, isconfused and uncertain, but one attractive possibility is to refer to it as ashared resource or area of common ~ 0 n c e r n . l ~ ~The question ofhow one defines the term 'pollution' has been addressedin several international instruments. In a Recommendation adopted in1974 by the Organisation for Economic Co-operation and Development,147pollution is broadly defined as 'the introduction by man, directly
or indirectly, of substances or energy into the environment resulting indeleterious effects of such a nature as to endanger human health, harm living resources and ecosystems, and impair or interfere with amenities and~ ~ definition was substanother legitimate uses of the e n v i r ~ n m e n t ' . 'This
tially reproduced in the Geneva Convention on Long-Range Transboundary Air Pollution, 1 9 7 9 and~ ~ in~ the Montreal Rules of International Law
Applicable to Transfrontier Pollution adopted by the International Law
Association in 1982.l" Several points ought to be noted at this stage.
See Sands, Principles, chapter 7, and Birnie and Boyle, International Law and theEnvironrnent, chapter 10.
1 4 4 See Keesing's Record of World Events, pp. 36782 ff. (1989).
14' See above, chapter 10, p. 464.
14'
See e.g. Birnie and Boyle, International Law and the Environment, p. 503.
14' OECD Doc.C(74)224, cited in Sands, Ckernobyl: Law and Communication, p. 150.
14' Ibid., Title A.
14' The major difference being the substitution of 'air' for 'environment' in view of the focusof the Convention.
"O Note that the term 'air' was replaced by 'environment'. See also article 1 of the Paris
Convention for the Prevention of Marine Pollution from Land-Based Sources, 1974 andarticle 2 of the Barcelona Convention for the Protection of the Mediterranean Sea against
Pollution, 1976. The Institut de Droit International, in a draft resolution accompanying
its final report on Air Pollution Across National Frontiers, defines pollution as 'any physical, chemical or biological alteration in the composition or quality of the atmospherewhich results directly or indirectly from human action or omission and produces injurious or deleterious effects across national frontiers: 62 I Annilaire de l'lnstitut de Droit
International, 1987, p. 266.
14'

INTERNATIONAL ENVIRONMENTAL LAW

7s1

First, actual damage must have been caused. Pollution likely to result asa consequence of certain activities is not included. Secondly, the harmcaused must be of a certain level of intensity, and thirdly, the questionof interference with legitimate uses of the environment requires further
investigation.
The core obligation in customary international law with regard to atmospheric pollution was laid down in the Trail Smelter case,'" which
provided that no state had the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territoryof another state or to persons or property therein, where the case was ofserious consequence and the injury established by clear and convincing
evidence.'52
In 1979, on the initiative of the Scandinavian countries and under the
auspices of the UN Economic Commission for Europe, the Geneva Convention on Long-Range Transboundary Air Pollution was signed.153The
definition of pollution is reasonably broad,154while article 1(b) defines
long-range transboundary air pollution as air pollution whose physicalorigin is situated wholly or in part within the area under the national
jurisdiction of one state and which has adverse effects in the area under
the jurisdiction of another state at such a distance that it is not generally
possible to distinguish the contribution of individual emission sources orgroups of sources.
The obligations undertaken under the Convention, however, aremodest. States 'shall endeavour to limit and, as far as possible, gradually
reduce and prevent air pollution, including long-range transboundary
air p~llution:'~'The question of state liability for damage resulting fromsuch pollution is not addressed. The Convention provides that states are
to develop policies and strategies by means of exchanges of informationand c o n ~ u l t a t i o nand
' ~ ~ to exchange information to combat generally the15'

35 AJIL, 1941, p. 716; 9 AD, p. 317.

'" Note also the adoption in 1963 of the Treaty Banning Nuclear Weapon Tests in the
Atmosphere, Outer Space and Under Water.
See e.g. A. Rosencranz, 'The ECE Convention of 1979 o n Long-Range Transboundary Air
Pollution: 75 AJIL, 1981,p. 975; L. Tollan, 'The Convention o n Long-Range Transboundary Air Pollution', 19 Jotlrnal of World Trade Law, 1985, p. 615, and A. Kiss, 'La Convention
sur la Pollution Atmospherique Transfrontiere a Longue Distance', Revue Juridique del'Elzvironlzement, 1981, p. 30. See also P. Okowa, State Responsibility for Trarlsboundary
Air Pollution, Oxford, 2000. See generally http://www.unece.org/env/lrtap/.
15' Article 2.
l s 4 See above, p. 780.
ls6 Article 3. Note that under article 6, states undertake to develop the best policies andstrategies using the 'best available technology which is ecoiloinically feasible'.
Is3

782

I N T E R N A T I O N A L LAW

discharge of air pollutants.'j7 Consultations are to be held upon request
at an early stage between contracting parties actually affected by or exposed to a significant risk of long-range transboundary air pollution andcontracting parties within which and subject to whose jurisdiction a significant contribution to such pollution originates or could originate, inconnection with activities carried on or contemplated therein.'''The parties also undertook to develop the existing 'Co-operative programme for the monitoring and evaluation ofthe long-range transmissionof air pollutants in Europe' (EMEP) and in 1984 a Protocol was adopted
dealing with the long-term financing of the project. Further Protocols to
the Convention have been adopted. In 1985, the Helsinki Protocol was
signed, dealing with the reduction of sulphur emissions or their transboundary fluxes by at least 30 per cent as soon as possible and at the latest
by 1993, using 1980 levels as the basis for the calculation of reductions.
This Protocol requires parties to report annually to the Executive Bodyof the Convention.""heSophia Protocol was adopted in 1988 and concerned the control of emissions of nitrogen oxides or their transboundary
fluxes. Under this Protocol the contracting parties undertook to reduce
their national annual emissions of nitrogen oxides or their transboundary fluxes so that by the end of 1994 these would not exceed those of
1987. Negotiations for further reductions in national annual emissions
were provided for, as was the exchange of technology in relevant areas
and of information. In 1991, the Protocol concerning the control of emissions of volatile organic compounds and their transboundary fluxes was
adopted. Specific targets and timetables are established. However, the Protocol provides for a choice of at least three ways to meet the requirements,
to be determined by the parties upon signature and dependent upon thelevel ofvolatile organic compounds emissions. In 1994, the Oslo Protocol
on Further Reduction of Sulphur Emissions was a d ~ p t e d , ' ~specifying'
15'

Article 4. See also article 8.

Article 5. See also article 8(b).

'" Note that for member states of the European Union, this obligation was supersededby the Large Combustion Directive 881609, 1988. Under this Directive, a distinction isdrawn between new and existing large combustion plants. Emission ceilings were set andpercentage reductions upon the basis of 1980 emission levels provided for with regard tosulphur dioxide and for nitrogen oxides. The obligations specified are variable, so that,for example, Belgium, Germany, France and the Netherlands are obliged to reduce theirsulphur dioxide emissions by 70 per cent by 2003, while Greece, Ireland and Portugal
are permitted marginally to increase their emissions over that period. Other Council
Directives deal with emissions from vehicle exhausts: see e.g. Council Directives 88176,
881436 and 891458.
See 33 ILM, 1994, p. 1540.

INTERNATIONAL ENVIRONMENTAL LAW

783

sulphur emission ceilings for parties for the years 2000,2005 and 2010, andaccompanied by a reporting requirement to the Executive Body on a periodic basis.161An Implementation Committee was provided for in order toreview the implementation of the Protocol and compliance by the parties
with their obligation^.'^^ In 1998 two further protocols were concluded,
one on persistent organic pollutants and the other on heavy metals. A
Protocol of 1999 is intended to abate acidification, eutrophication andground-level ozone. In 1997 a revised Implementation Committee wasestablished and this has the responsibility to review compliance with all
the Protocols of the Convention under a common procedure. It considers questions of non-compliance with a view to finding a 'constructive
solution' and reports to the Executive ~ 0 a r d . l ~ ~In 2001, the Stockholm Convention on Persistent Organic Pollutants
was signed. The Convention provides for the control of the production, trade in, disposal and use of twelve named persistent organic pollutants (although there is a health exception temporarily for DDT).
There is a procedure to add other such pollutants to the list and an interim financial mechanism with the Global Environmental Facility (GEF)
is to be established as the principal entity to help developing countries. 164
In 1986 a Protocol to the Paris Convention for the Prevention ofMarine Pollution from Land-Based Sources165extended that agreement
to atmospheric emissions of pollutants.166Article 212 of the Law of the
Sea Convention, 1982 requires states to adopt laws and regulations toprevent, reduce and control atmospheric pollution of the marine environment, although no specific standards are set.'67
I"

Article 5.

'" Article 7.

'" See Executive Board Decision 199712, annex, as amended in 2001, ECEIEB.AIRI75,
annex V. The Executip-e Board may take decisions concerning the compliance ofparties: see e.g. Decision 200218 criticising Spain. See, for the Board's decisions,
http:llwcvcv.unece.orglen~~llrtaplconvlreportleb~decis.htm.
164 See the Convention website, l ~ t t p : l l ~ w ~ ~ . p o p s . i n t l .
165 See below, p. 806.
Note also that in 1987 the Second International Conference on the Protection ofthe North
Sea urged states to ratify the Protocol: see 27 ILM, 1988,p. 835; while in 1990 North Sea
states agreed to achieve by 1999 a reduction of 50 per cent or more in atmospheric andriver-borne einissions of hazardous substances, provided that best available technology
permitted this: see IMO Doc. MEPC 2911NF.26.
167 Note that the Canada-United States Air Quality Agreement, 1991 required the reductionof sulphur dioxide and nitrogen oxide emissions from the two states to agreed levels by
the year 2 0 . Compliance monitoring by continuous emission monitoring systems wasprovided for.

I N T E R N A T I O N A L LAW

Ozone depletion and global warming1@
The problem of global warming and the expected increase in the temperature of the earth in the decades to come has focused attention on theissues particularly of the consumption of fossil fuels and deforestation.
In addition, the depletion of the sfratospheric ozone layer, which has theeffect of letting excessive ultraviolet radiation through to the surface ofthe earth, is a source of considerable concern. The problem of the legal
characterisation of the ozone layer is a significant oie. Article l(1) of theVienna Convention for the Protection of the Ozone Layer, 1985 defines
this area as 'the layer of atmospheric ozone above the planetary boundary layer'. This area would thus appear, particularly in the light of the
global challenge posed by ozone depletion and climate change, to constitute a distinct unit with an identity of its own irrespective of nationalsovereignty or shared resources claims. UN General Assembly resolution
43/53, for example, states that global climate change is 'the common concern of mankind:'69 Whatever the precise legal status of this area, what
is important is the growing recognition that the scale of the challenge
posed can only really be tackled upon a truly international or global
basis.
In the first serious effort to tackle the problem of ozone depletion, theVienna Convention for the Protection i f the Ozone Layer was adopted
in 1985, entering into force three years later. This Convention is a framework agreement, providing the institutional structure for the elaborationof Protocols laying down specific standards concerning the production
which cause the destructionof chlorofluorocarbons (CFCs), the agentsof the ozone layer. Under the Convention, contracting parties agree totake appropriate measures to protect human health and the environment
against adverse effects resulting or likely to result from human activities'" See e.g. International Law and Global Clirnate Change (eds. R. Churchill and D. Freestone),

16'

Dordrecht, 1991; P. Lawrence, 'International Legal Regulation for Protection of the Ozone
Layer: Some Problems of Implementation', 2 ~otlrnaiof~nvironmentalLatv, 1990, p. 17;
T. Stoel, 'Fluorocarbon: Mobilising Concern and Action' in Environn~entalProtection, The
International Dinlension (eds. D. A. Kay and H. K. Jacobson), 1983, p. 45; Engelmann,'A Look at Some Issues Before an Ozone Convention', 8 Environrrlental Policy and Latv,
1982, p. 49; Heimsoeth, 'The Protection of the Ozone Layer', 10 Environnlental Policy andLaw, 1983, 17. 34, and Birnie and Boyle, International Law and the Environment, 17. 516.
See also http://w~?u.unep,org/ozone/index-enshtml.
See also the Noordwijk Declaration of the Conference on Atmospheric Pollution andClimate Change, 1989. See e.g. C. A. Fleischer, 'The International Concern for theEnvironment: The Concept of Common Heritage' in Bothe, Trend$ in Environmental
Law and Policy, p. 321.

INTERNATIONAL ENVIRONMENTAL LAW

785

which modify or are likely to modify the ozone layer.I7O The parties also
agree to co-operate in the collection of relevant material and in the formulation of agreed measures, and to take appropriate legislative or administrative action to control, limit, reduce or prevent human activities under
their jurisdiction or control 'should it be found that these activities haveor are likely to have adverse effects resulting from modification or likely
modification of the ozone layer:171 A secretariat and disputes settlement
mechanism were e~tab1ished.l~~
However, overall the Convention is little
more than a framework within which further action could be taken.
In 1987 the Montreal Protocol on Substances that Deplete the Ozone
Layer was adopted and this called for a phased reduction of CFCs and afreeze on the use of ha10ns.I~~
The control measures of the Protocol are
based on the regulation of the production of 'controlled substance^"^^by the freezing of their c o n s u m p t i ~ nat' ~1986~ levels followed by a progressive reduction, so that by mid-1998 consumption was to be reduced
by 20 per cent in comparison with the 1986 figure. From mid-1998 onwards consumption was to be reduced to 50 per cent of the 1986 level.'7h
However, this was subsequently felt to have been insufficient and, in 1989,
the parties to the Convention and Protocol adopted the Helsinki Declaration on the Protection of the Ozone Layer in which the parties agreed
to phase out the production and consumption of CFCs controlled by theProtocol as soon as possible, but not later than the year 2000, and to phaseout halons and control and reduce other substances which contributesignificantly to ozone depletion as soon as feasible. An Implementation
Committee was established under the Montreal Protocol together with a
non-compliance procedure, whereby a party querying the carrying out of
Article 2(1).'Adverse effects' is defined in article l(2) to mean 'changes in the physicalenvironment or biota, including changes in climate, which have significant deleterious
effects on human health or on the composition, resilience and productivity of naturaland managed ecosystems or on materials useful to mankind'.
17' Article 2.
17' Articles 7 and 1 1.
173 See 26 ILM, 1987, p. 1541 and 28 ILM, 1989, p. 1301. See also R. Benedick, Ozone
Diplonzacy, Cambridge, MA, 1991,and A. C. Aman, 'The Montreal Protocol on Substancesthat Deplete the Ozone Layer: Providing Prospective Remedial Relieffor Potential Damage
to the Environmental Commons' in Francioni and Scovazzi, International Respoizsibility
for Enviroruneiital Harm, 17. 185.
17".e, ozone-depleting substances listed in Annex A.
175 This is defined to constitute production plus imports minus exports of controlled substances: see articles 115)~, and 16)~, and 3.
176 There are two exceptions, however, first for the purposes of 'industrial rationalisation
between parties' and secondly with regard to certain developing countries: see article 5.
17"

786

I N T E R N A T I O N A L LAW

obligations by another party can submit its concerns in writing to the secretariat. The secretariat with the party complained against will examine
the complaint and the matter will then be passed to the Implementation
Committee, which will try and secure a friendly settlement and make areport to the meeting of the parties, which can take further measures toensure compliance with the Protocol.
The parties to the Protocol made a series of Adjustments and Amendments to the Protocol in June 1 9 9 0 , ' ~the~ main ones being that 1992
consumption and production levels were not to exceed 1986 levels, while
1995 levels were not to exceed 50 per cent with 10 per cent exception tosatisfy basic domestic needs; 1997 levels were not to exceed 15 per cent,with 10 per cent exception permitted, and 2000 levels were not to exceed
0 per cent with 15 per cent exception permitted. Broadly similar consumption and production targets have also been laid down with regard tohalons. The 1990 Amendments made specific reference to the requirement
to take into account the developmental needs of developing countries andthe need for the transfer of alternative technologies, and a MultilateralFund was established. Further Adjustments were made in Copenhagenin1992,17' introducing changes to the timetable for the phasing out ofvarious substances, listing new controlled substances and adopting newreporting requirements. The Implementation Committee was enlarged
and the Multilateral Fund adopted on a permanent basis.
It should also be noted that European Community Council Regulation
911594 of 4 March 1991 provided that after 30 June 1997 there should be
no production of CFCs unless the European Commission had determinedthat such production was essential.
Action with regard to the phenomenon of global warming has been a
lot slower. General Assembly resolutions 43153 (1988) and 441207 (1989)
recognised that climate change was a common concern of mankind anddetermined that necessary and timely action should be taken to deal withthis issue. The General Assembly also called for the convening of a conference on world climate change, as did the UNEP Governing Council
Decision on Global Climate Change of 25 May 1989. In addition, theHague Declaration on the Environment 1989, signed by twenty-fourstates, called for the establishment of new institutional authority under
the auspices of the UN to combat any further global warming and for
177 See 30 ILM, 1991, p. 537.

See 32 ILM, 1993, p. 874. Further amendments were made in Montreal, 1997, and Beijing,
1999, increasing the substances covered: see http:i/wm.v.unep.chiozone/treaties.shtinl.

INTERNATIONAL ENVIRONMENTAL LAW

787

the negotiation of the necessary legal instruments. The UN Framework
Convention on Climate Change was adopted in 1 9 9 2 . l ~ ~The objective of the Convention is to achieve stabilisation of greenhouse gases in the atmosphere at a level that would prevent dangerous
anthropogenic interference with the climate system and such level shouldbe achieved within a time-frame sufficient to allow ecosystems to adapt
naturally to climate change, to ensure food production is not threatened and to enable economic development to proceed in a sustainable
manner.'$' The states parties undertake inter alia to develop, update andpublish national inventories of anthropogenic emissions by sources andremovals by sinks18' of all greenhouse gases not covered by the Montreal
Protocol; to formulate, implement and update national and, where appropriate, regional programmes containing measures to mitigate climatechanges; to promote and co-operate in the development, application andtransfer of technologies and processes to control, reduce or prevent suchanthropogenic emissions; to promote sustainable management and conservation of sinks and reservoirs of all greenhouse gases not controlled by
the Montreal Protocol; to take climate change considerations into accountto the extent feasible in their relevant social, economic and environmental
policies; and to promote and co-operate in research, exchange of information and education in the field of climate change.ls2 Developed country
parties, and certain other parties listed in Annex 1,1s3 commit themselves
to take the lead in modifying longer-term trends in anthropogenic emissions and particularly to adopt national policies and take corresponding
measures on the mitigation of climate change by limiting anthropogenic
emissions of greenhouse gases and protecting and enhancing greenhousegas sinks and r e ~ e r v 0 i r s . lDeveloped~~
country and other Annex I parties must submit within six months of the Convention coming into force
and periodically thereafter, detailed information on such matters with"'3 1 ILM, 1992, p. 849. See e.g. J. Werksman, 'Designing a Compliance System for the UN
Framework Convention on Climate Change' in Iirlproving Corrlpliaizcewith International
Environir~entalAgreements (eds. J. Cameron, J. Werksman, P. Rodinck et al.), London,
1996, p. 85. See also Birnie and Boyle, International Law and the Environment, p. 523. See
also http://unfccc.int/.
lX0 Article 2.
IS' Defined as any process, activity or mechanism which removes a greenhouse gas, an aerosol
or a precursor of a greenhouse gas from the atmosphere, article l(8).
Is' Article 4(1).
18' For example, former European Soviet Republics such as Belarus, the Ukraine and theBaltic states.
l X 4 Article 4(2)a.

788

I N T E R N A T I O N A L LAW

the aim of returning anthropogenic emissions to their 1990 levels. This
information provided is to be reviewed by the Conference of the parties
on a periodic basis.''' In addition, developed country parties and otherdeveloped parties included in Annex 11''~ are to provide the financial resources to enable the developing country parties to meet their obligations
under the Convention and generally to assist them in coping with theadverse effects of climate change. The parties agree to give full consideration to actions necessary to assist developing country parties that may
be, for example, small island countries, countries with low-lying coastal
areas, countries prone to natural disasters, drought and desertificationand landlocked and transit state^.'^'The Conference of the parties is established as the supreme body of theConvention and has the function inter alia to review the implementationof the Convention, periodically examine the obligations of the parties
and the institutional arrangements established, promote the exchange
of information, facilitate at the request of two or more parties the coordination of measures taken to address climate change, promote andguide the development of comparable methodologies for the preparationof inventories, assess the implementation of the Convention by the parties, consider and adopt regular reports on implementation and makerecommendations on any matters necessary for the implementation of
the onv vent ion.'^^ In addition, the Convention provides for a secretariat
to be established, together with a subsidiary body for scientific and technological advice and a subsidiary body for i m p l e m e n t a t i ~ nThe
. ~ ~Con~vention as a whole is a complex document and the range of commitments
entered into, particularly by developed country parties, is not wholly
clear.
The Convention entered into force in 1994 and the following year the
first session of the Conference was held in ~ e r 1 i n . l ~It' was agreed thatthe pledges by the developed country parties to reduce emissions by 2000
to 1990 levels were not adequate and preparations were commenced todraft a further legal instrument by 1997. It was also agreed not to establish
new commitments for developing country parties, but rather to assist theimplementation of existing commitments. The parties decided to initiate
a pilot phase for joint implementation projects, providing for investmentl X 5 Article 4(2)b.

186 Essentially European Union countries, the US, Australia, Canada, New Zealand, Iceland,

Tapan, Switzerland and Turkey.
Artlcle 4(8).
lX8 Article 7.
18~rticleles
8-10.
'" See 34 ILM, 1995, p. 1671.
18'

INTERNATIONAL ENVIRONMENTAL LAW

789

from one party in greenhouse gas emissions reduction opportunities inanother party. In addition, it was decided to establish a permanent secretariat in Bonn and two subsidiary advisory bodies.
~~developed country parties to
The 1997 Kyoto ~ r o t o c o l 'commits
individual, legally binding targets to limit or reduce their greenhousegas emissions, adding up to a total cut of at least 5 per cent from1990 levels in the 'commitment period' of 2008-2012. Developing countries are obliged simply to meet existing commitments. Certain activities
since 1990 which have the effect of removing greenhouse gases, such as
forestry schemes (so-called 'carbon sinks'), may be offset against emission targets. The Protocol also allows states to aggregate their emissions,thus allowing, for example, European Union members if they wish to be
counted together permitting less developed members to increase emissions on the account of other members. In addition, states may receive
credits for supporting emission-reducing projects in other developed
states ('joint implementation') and in certain circumstances in developing states ('the clean development mechanism'), and the possibility
has been provided for trading emission permits, so that some countries
may purchase the unused emission quotas of other countries ('emissions
trading').lg2
The Conference of the Parties meets regularly to review the Convention
and Protocol. There are two supplementary bodies, one on scientific andtechnological advice and one on implementation. The financial mechanism of the Convention is operated by the Global Environment Facility, established by the World Bank, UN Environment Programme and
UN Development Programme in 1991, while advice is received fromthe Intergovernmental Panel on Climate Change, established by theWorld Meteorological Organisation and the UN Environmental Programme.'93 Annex 1 countries (essentially the developed states) must
provide annual inventory reports on greenhouse gas emissions to thesecretariat, which are subject to in-depth and technical re~iew.'~"eveloping countries are subject to weaker reporting requirements. Thereis a Compliance Committee with facilitative and enforcement branches
for parties to the Kyoto Protocol (as amended by the Marrakesh Accords
2001).

'" This is likely to come into force during 2003.
Further advances were made at meetings in Buenos Aires 1998, Bonn 2001 and Marrakesh
2001: see http://unfccc.int/issuesimechanisn1s.htin1.
lY3 See http://www.ipcc.ch/.
'" The requirements are more stringent with regard to the Kyoto Protocol parties.
lY'

790

I N T E R N A T I O N A L LAW

Outer space'95
The Outer Space Treaty, 1967 provides that the exploration and use ofouter space is to be carried out for the benefit and in the interests of allstates.'" The harmful contamination of space or celestial bodies is to be
avoided, as are adverse changes in the environment of the earth resulting from the introduction of extraterrestrial matter.'97Nuclear weaponsand other weapons of mass destruction are not to be placed in orbit
around the earth, installed on celestial bodies or stationed in outer space,
and the moon and other celestial bodies are to be used exclusively forpeaceful purposes.'98 The Agreement Governing the Activities of Stateson the Moon and Other Celestial Bodies, 1979 provides that the moonand its natural resources are the 'common heritage of mankind' and are
to be used exclusively for peaceful purpose^."^ Article VII stipulates thatin exploring and using the moon, states parties are to take measures toprevent the disruption of the existing balance of its environment whether
by introducing adverse changes in that environment or by its harmful
contamination through the introduction of extra-environmental matteror otherwise.
There is, in particular, a growing problem with regard to debris locatedin outer space. Such debris, consisting ofmillions of objects ofvarying sizein space,200constitutes a major hazard to spacecraft. While liability fordamage caused by objects launched into space is absolute,201the specificproblem of space debris has been addressed in the Buenos Aires International Instrument on the Protection of the Environment from Damage
Caused by Space Debris, adopted by the International Law Association at
lY5See further above, chapter 10, p. 479. See also Uirnie and Uoyle, International Law andthe Environzent, p. 534.
19' Artide 9.
Article 4. See also the Principles Relevant to the Use of Nuclear Power Sources in Outer
Space, adopted by the U N General Assembly in resolution 47168 (1992). Goals forradioactive protection and safety are stipulated.
199 See articles 111 and XI.
'Oo Such debris may result frompollutioil from spacecraft, abaildoned satellites, orbital explosions and satellite break-ups or hardware released during space launches and other normal
manoeuvres. See e.g. L. Roberts, 'Addressing the Problem of Orbital Space Debris: Combining International Regulatory and Liability Regimes: 15 Boston College Internatioizul
arid Comparative Law Review, 1992, p, 53. See also S. Gorove, 'Towards a Clarification of
the Term "Space Objects" - An International Legal and Policy Imperative?: 21 Journal ofSpace Law, 1993, p. 10.
'01 See e.g. B. Hurwitz, Space Liubilityfbr Outer Space Activitiex, Dordrecht, 1992, and see
further above, chapter 10, p. 483.
196 Article 1.

INTERNATIONAL ENVIRONMENTAL LAW

79

its 1994
The draft emphasises the obligations to co-operate
in the prevention of damage to the environment, in promoting the development and exchange of technology to prevent, reduce and control
space debris and in the flow and exchange of information, and to holdconsultations when there is reason to believe that activities may produce
space debris likely to cause damage to the environment or to persons orobjects or significant risks thereto. The principle proclaimed by the draft isthat each state or international organisation party to the instrument thatlaunches or procures the launching of a space object is internationallyliable for damage arising therefrom to another party to the instrument asa consequence of space debris produced by any such object.203
International watercourses204
International watercourses are systems of surface waters and ground waters which are situated in more than one state.205Such watercourses forma unitary whole and normally flow into a common terminus. While there
has historically been some disagreement as to the extent of the watercourse system covered, particularly whether it includes the complete river
basin with all associated tributaries and groundwater systems, a broader
202 Report of the Sixty-Sixth Conference, Buenos Aires, 1994, pp. 317 ff. This, of course, is

not a binding treaty, but a suggested draft from an influential private organisation.

"'Article 8 of the draft.
"O"

'05

See e.g. Sands, Principles, chapter 9, and Birnie and Boyle, International Law and theEnvironment, chapter 6 . See also S. McCaffrey, The Law of International Watercourses,
Oxford, 2001; R. Baxter, The Law of International I\7uterways, Cambridge, M A , 1964;
C. Bourne, 'International Law and Pollution of International Rivers and Lakes', 21
University of Toronto Latv Journal, 1971, p. 193; F. Florio, 'UTaterPollution and Related
Principles of International Law', 17 Canadian YIL, 1979, p. 134; J. Lammers, Pollutionof International 14tttercourses: A Search for Substantive Rules and Principles, The Hague,
1984; S. McCaffrey, 'The Law of International Watercourses: Some Recent Developments
and Unanswered Questions', 17 Denver Journal ofInternationc11 Law and Policy, 1989,
p. 505; 1. G. Polakiewicx, 'La Responsabilite de 1'Etat en MatiPre de Pollution des Eaux
Fluviales ou Souterraines Internationales: Journal de Droit International, 1991, p. 283; H.
Ruiz Fabri, 'Regles Coutumieres Gknkrales et Droit International Fluvial: AFDI, 1990,
p. 818; J. Sette-Camara, 'Pollution of International Rivers: 186 HR, 1984, p. 117, and P.
Wouters, 'The Legal Response to Water Conflicts: The UN Watercourses Convention and
Beyond: 42 German YIL,1999, p. 293.
See e.g. article l ( 1 ) of the UN Convention on the Protection and Use of Transboundary
Watercourses and Iilternational Lakes, 1992 and article 2 of the Coilveiltion on the Lawof the Non-Navigational Uses of International \l7atercourses,1997. See also Report of theInterilatioilal Law Coininissioil on its 46th Session, 1994, p. 197.

7g2

I N T E R N A T I O N A L LAW

definition is the approach adopted in recent years. Customary law has developed rules with regard to equal riparian rights to international r i v e r ~ , ~ ' ~The International Law Association, a pribut these were not e~tensive.~"
vate organisation of international lawyers, proposed the Helsinki Ruleson the Uses of the Waters of International Rivers in 1 9 6 6 , ~ 'in~ which it
was noted that each basin state was entitled to a reasonable and equitableshare in the beneficial use of the waters and that all states were obliged toprevent new forms of water pollution that would cause substantial injury
in the territory of other basin states.209
In 1992, the Convention on the Protection and Use of Transboundary
Watercourses and International Lakes was adopted in Helsinki within theframework of the UN Economic Commission for Europe. Under this Convention, all parties must take all appropriate measures to prevent, control
and reduce any significant adverse effect on the environment resulting
from a change in the conditions of transboundary waters caused by a human activity. Such effects on the environment include effects on humanhealth and safety, flora, fauna, soil, air, water, climate, landscape and also
effects on the cultural heritage.210In taking such measures, states parties
are to be guided by the precautionary principle211 and by the polluterpays principle, by which the costs of pollution prevention, control andreduction measures are to be borne by the polluter.212Each party undertakes to set emission limits for discharges from point sources into surface
See the Territorial Jurisdiction of the International Commission o f the Oder case, PCIJ, Series A, No. 23, p. 27; 5 AD, p. 83. The Permanent Court noted here that, 'the communityof interest in a navigable river becomes the basis of a common legal right, the essential
features of which are the perfect equality of all riparian states in the user of the wholecourse of the river and the exclusion of any preferential privilege of any one riparian state
in relation to the others: The International Court has noted that, 'Modern developmentof international law has strengthened this principle for non-navigational uses of international watercourses', the Gabtikovo-Nagymaros Project case, ICJ Reports, 1997, pp. 7,56;
116ILR,p. 1.
See the Lac Lanoux case, 24 ILR, p. 101. The tribunal noted, for example, that while theinterests of riparian states had to be taken into account by a riparian state proposingchanges to the river system, there was no rule precluding the use of hydraulic power ofinternational watercourses without a prior agreement between the interested states, ibid.,
p. 130.
Report of the Fifty-second Conference, 1966, p. 484.
209 See also the R ~ ~ lone s Water Pollution in an International Drainage Basin adopted by the
ILAin 1982,Report ofthe Sixtieth Conference, 1982,p.535, and the Rules onInternationa1
Groundwaters adopted in 1986, Report ofthe Sixty-second Conference, 1986. See also thework of the Institut de Droit International, Annuaire de l'lnstitut de Droit International,
1979, p. 193.
Articles l(2) and 2(1).
2 L L See above, p. 776.
See above, p. 779.
'06

"'

"'

INTERNATIONAL ENVIRONMENTAL LAW

793

waters based on best available technology213and to define, where appropriate, water-quality objectives and adopt water-quality criteria214for the
purpose of preventing, controlling and reducing transboundary impact.
The measures to be taken must ensure, for example, the application oflow- and non-waste technology; the prior licensing of waste-water discharge; the application of biological or equivalent processes to municipal
waste water; the use of environmental impact assessments and sustainable
water-resources
The Convention also calls for the parties to establish monitoring programmes, to co-operate in research and development projects and to
exchange relevant information as early as p~ssible.~'"iparian parties are
to enter into bilateral or multilateral agreements or arrangements in order
to co-ordinate their activities and to consult together at the request of any
one riparian party.217Article 7 provides that the parties 'shall support appropriate international efforts to elaborate rules, criteria and proceduresin the field of responsibility and liability'.
The Convention on the Law of the Non-Navigational Uses of International Watercourses, 1997 provides that watercourse states shall in theirrespective territories utilise an international watercourse in an 'equitable
and reasonable manner'. In particular, optimal utilisation must be consistent with adequate protection of the watercourse.218Factors relevant toequitable and reasonable utilisation include, in addition to physical factorsof a natural character and the social and economic needs of the watercourse states concerned, the 'conservation, protection, development andeconomy of use of the water resources of the watercourse and the costsof measures taken to that effect'.219Article 7 provides that watercourse
states shall take all appropriate measures to prevent the causing of significant harm to other watercourse states. Where such harm is caused,consultations are to take place in order to eliminate or mitigate such
harm and with regard to compensation where appropriate. Articles 9 and
11 provide for regular exchanges of data and information, while watercourse states are to exchange information and consult in particular on
This is defined in Annex I.
214 See Annex 111.
21' Article 3.
Articles 4-6 and 11-13. Provisions regarding notification about critical situations andmutual assistance appear in articles 14 and 15.
217 Articles 9 and 10.
Article 5. This provision was expressly referred to by the International Court in the
Gubi-ikovo-Nugymuros Project case, ICJ Reports, 1997, pp. 7, 80; 116 ILR, p. 1. See also
article 8 which eillphasises that watercourse states shall co-operate in order to attain
optimal utilisation and adequate protection of an international watercourse.
21"rticle
6.
'I3

'I6

794

I N T E R N A T I O N A L LAW

the possible effects of planned measures on the condition of an international watercourse. Before a watercourse state implements or permits
the implementation of planned measures which may have a significant
adverse effect upon other watercourse states, it is to provide such stateswith timely notification and sufficient technical data and information for
the evaluation of the possible effects of the planned measures.220Unlessotherwise agreed, the notified states have a period of six months for such
evaluation during which exchanges of data and information are to takeplace and the planned measures are not to be implemented without theconsent ofthe notified states. If no reply to the notification is received, thenotifying state may proceed to implement the planned measures. If a reply
is received, the states are to consult and negotiate with a view to arriving
at an equitable resolution of the situation.221Where a watercourse state
has serious reason to believe that measures that may have a significant
adverse impact are being planned, it may itself set in motion the above
procedures.222
Article 20 stipulates that watercourse states shall protect and preserve
the ecosystems of international watercourses223and shall act to prevent,reduce and control
of an international watercourse that may
cause significant harm to other watercourse states or to their environment. Watercourse states are to take all necessary measures to prevent the
introduction of species, alien or new, into an international watercourse
which may have effects detrimental to the ecosystem of the watercourse
resulting in significant harm to other watercourse states.225
It is thus clear that the international community is coming to termswith the need to protect the environment ofinternational watercourses.226
How evolving international environmental rules relate to the more traditional principles of international law was one of the issues before the"O

Article 12.

22'

Articles 11-17.

--- Article 18. Article 19 provides for an expedited procedure where there is the utmost

777

urgency in the implementation of planned measures.
See also article 23 with regard to measures necessary to protect and preserve the marine
environment.
224 Pollution is here defined as 'any detrimental alteration in the composition or qualityof the waters of an international watercourse which results directly or indirectly fromhuman conduct: article 2 l(1).
225 Article 22.
226 ~ o t thate a variety of regional and bilateral agreements and arrangements exist with regard to international watercourses: see e.g. the agreements concerning the International
Commission of the Rhine, the US-Canadian International roint Coinmission and provisions concerning the Zambezi River System and the Niger Basin. See Sands, Principles,
pp. 354 ff. and Birnie and Boyle, International Law and the Environment, pp. 323 ff.
"jINTERNATIONAL ENVIRONMENTAL LAW

795

International Court in the Gabzikovo-Nagymaros Project case.227Hungary and Czechoslovakia entered into a treaty in 1977 by which there
would be created on the Danube between the two states a barrage system,
a dam, a reservoir, hydro-electric power stations and a 25-kilometre canalfor diverting the Danube from its original course through a system oflocks. A dispute developed in the light of Hungary's growing environmental concerns. Hungary suspended work on the project in 1989, while
Czechoslovakia (now the Czech and Slovak Federal Republic) proceededwith a 'provisional solution' as from 1991, which involved damming the
Danube at a point on Czechoslovakian territory. In 1992, Hungary announced the termination of the treaty of 1977 and related instruments.
The case came before the International Court ultimately by way of aSpecial Agreement in 1993 between Hungary and Slovakia (the successor
to the former Czech and Slovak Federal Republic in so far as the project
was concerned). The case essentially revolved around the relationshipbetween the treaty and subsequent environmental concerns. The Court
emphasised that newly developed norms of environmental law were relevant for the implementation of the treaty,"' while 'The awareness of thevulnerability of the environment and the recognition that environmental risks have to be assessed on a continuous basis have become muchstronger in the years since the treaty's conclusion.'229However, the Court
found that the treaty was still in force and Hungary was not entitled toterminate it.230

It has been argued that ultra-hazardous activities form a distinct category in the field of international environmental law and one in which"' ICJ Reports, 1997,p. 7; 116 ILR, p. 1.
'" Ibid., p. 68.

ICJ Reports, 1997,p. 67.

Ibid., pp. 76 and 82.Note that in March 2003,the establishment of aT17aterCo-operation
Facility to mediate in disputes between countries sharing a single river basin was announced: see http://news.bbc.co.uk/l/hi/sci/tech/2872427.stm.
See e.g. Sands, Principles, chapter 11,and Birnie and Boyle, Ir~terriationalLaw and theEr1virorzrnerlt, chapters 8 and 9.See also D.A. Bagwell, 'Hazardous and Noxious Substances:
62 Tulane Latv Review, 1988, 17. 433; L. F. Goldie, 'Concepts of Strict and Absolute Liability and the Ranking of Liability in Terms of Relative Exposure to Risk: 16 Netherlands
Jenks, 'The Scope and
YIL, 1985, p. 247;Barboza, 'International Liability: pp. 331 ff.; Mr.
Nature of Ultra-Hazardous Liability in International Law: 117 HR, 1966, p. 99; Handl,'State Liability', pp. 553 ff., and R.J. Dupuy, La Responsabiliti des Etatspour les Dornrnages
d'origine Technologique et Industrielle, Paris, 1976, pp. 206-9.

'jO

'I

228

796

I N T E R N A T I O N A L LAW

the principle of strict or absolute liability operates. The definition ofwhat
constitutes such activity, of course, is somewhat uncertain, but the characterisation can be taken to revolve around the serious consequences that arelikelyto flow from any damage that results, rather than upon the likelihoodof pollution occurring from the activity in question. The focus therefore
is upon the significant or exceptional risk of severe transnational damage.232The effect of categorising a particular activity as ultra-hazardous
would, it appears, be to accept the strict liability principle rather thanthe due diligence standard commonly regarded as the general rule in pollution situations.233In other words, the state under whose territory or
jurisdiction the activity took place would be liable irrespective of fault.
This exception to the general principle can be justified as a method ofmoving the burden of proof and shifting the loss clearly from the victim
to the state. It would also operate as a further incentive to states to takeaction in areas of exceptional potential harm.
In determining what areas of activity could be characterised as ultrahazardous, some caution needs to be exercised. There can be little doubtthat nuclear activities fall within this category as a general rule, but beyond
this there appears to be no agreement. The Convention on International
Liability for Damage caused by Space Objects, 1972 specifically provides
that a launching state shall be absolutely liable to pay compensation fordamage caused by its space objects on the surface of the earth,'34 but thisis the only clear example of its kind.

Nuclear activities 235
The use of nuclear technology brings with it risks as well as benefits andthe accident at the Chernobyl nuclear reactor in 1 9 8 6 brought~ ~ ~ home tointernational opinion just how devastating the consequences of a nuclear
mishap could be. Concern in this area had hitherto focused upon theissue of nuclear weapons. In 1963 the Treaty Banning Nuclear Weapons"' Handl, 'State Liability', p. 554.

"' See above, p. 764.

234

See above, p. 483.

'" See e.g. Sands, Clzernobyl: Law and Comnlunication; Boyle, 'Nuclear Energy' and 'Chernobyl'; J. C. MTooNiffe,'Tackling Transboundary Environmental Hazards in Cases ofEmergency: The Emerging Legal Framework' in Current Issues in European and Interlzational Latv (eds. R. M'hite and B. Smythe), London, 1990, and Woodliffe, 'Chernobyl:
Four Years On', 39 ICLQ, 1990, p. 461.
'j6 See Sands, Cher-nobyl: Law and Communication, pp. 1-2. See also IAEA, Stnn~rnary Repol-t
oil the Post Accident Review Xleetiilg on the Cherilobyl Accident, Vienna, 1986.

INTERNATIONAL ENVIRONMENTAL LAW

797

Testing in the Atmosphere, Outer Space and Under Water was signed.237
However, France and China did not become parties to this treaty and continued atmospheric nuclear testing. Australia and New Zealand soughta declaration from the International Court that French atmospheric nuclear testing was contrary to international law, but the Court decided thecase on the basis that a subsequent French decision to end such testing wasbinding and thus the issue was moot.2" In response to renewed French
nuclear testing in the South Pacific in 1995, albeit underground rather
than atmospheric, New Zealand asked the International Court to review
the situation pursuant to the 1974 judgment and declare that France wasacting illegally as being likely to cause the introduction into the marine
environment of radioactive material and in failing to conduct an environmental impact assessment. While the Court referred to 'the obligations ofstates to respect and protect the natural environment', it declared that therequest had to be dismissed as not falling within the relevant paragraphof the 1974 judgment permitting a re-examination of the situation since
the latter judgment had concerned atmospheric tests alone.239Measures
to prevent the spread of nuclear weapons were adopted in the Nuclear
Non-Proliferation Treaty of 1968, although the possession itself of nuclear weapons does not contravene international law.240
A variety of international organisations are now involved to some extent in the process of developing rules and principles concerning nuclear activities and environmental protection. The International Atomic
Energy Agency, to take the prime example, was established in 1956 inorder to encourage the development of nuclear power, but particularly
since the Chernobyl accident its nuclear safety role has been emphasised.
The Convention on Assistance in Cases of Nuclear Emergency, 1986, forexample, gave it a co-ordinating function and an obligation to provide
appropriate resources where so requested.24' The IAEA has established"'See also the Treaty on the Prohibition of the Emplacement of Nuclear T.tTeaponsand otherWeapons of Mass Destruction on the Sea-Red, 1971; the Treaty for the Prohibition of
Nuclear MTeapoils in Latin America, 1967 and the South Pacific Nuclear Free Zone Treaty,
1985.
2'8 See the Nuclear Tests cases, ICJ Reports, 1974, p. 253; 57 ILR, p. 398.
239 Reqtlestfor ail Exarnirzation of the Sitrlatiorz in Accordnizce with Paragraph 63 of the Court'sJudginent of 1974 in the Nuclear Tests Case, ICJ Reports, 1995, pp. 288, 305-6; 106 ILR,
p. 1.
240 See e.g. M. N. Shalv, 'Nuclear Weapoils and Iilternational Law' in Nuclear Ilieapons andInter-nutioizul Law (ed. I . Pogany), London, 1987, p. 1. See also below, chapter 21, p. 1066.
241 See further below, p. 799.

798

I N T E R N A T I O N A L LAW

a series of standards and guidelines including, for example, in the context of the design, construction and operation of nuclear power plants,
although such standards do not have the force of law.2" Other international organisations also have a role to play in the sphere of nuclear
activities.243
The provision of information
There appears to be a general principle requiring that information beprovided in certain situations244and several bilateral agreements have expressed this in the context of nuclear accident^."^ In general, such agreements provide that each state is to inform the other without delay of any
emergency resulting from civil nuclear activities and any other incident
that could have radiological consequences for the second state. Reciprocal information systems are set up and warning notification centres
established. Such agreements, however, do not cover exchange of military
information.246
Following the Chernobyl accident and the failure of the USSR to provide immediate information, the Vienna Convention on Early Notification of a Nuclear Accident, 1986 was rapidly adopted, under the auspicesof the IAEA. This provides that in the event of a nuclear accident, therelevant state shall 'forthwith notify, directly or through the International Atomic Energy Agency. . . those states which are or may be physically affected. . . of the nuclear accident, its nature, the time of its occurrence and its exact location'. Additionally, such states must be promptly
provided with information relevant to minimising the radiologicalNote, however, that under the Geneva Convention on the High Seas, 1958, states are to
take account of IAEA standards in preventing pollution of the seas from the dumping of
nuclear waste.
""?,g. EURATOM (established in 1957), the Nuclear Energy Agency of the OECD (established in 1957) and the ILO (International Labour Organisation). See Royle, 'Nuclear
Energy: pp. 266-8.
244 See above, p. 774. See also Principle 20 of the Stockholm Declaration and Principle 9 of
the Rio Declaration.
245 The first was concluded bet~veenFrance and Belgium in 1966 concerning the Ardennes Nuclear Power Station. Other examples include Switzerland-Federal Republic of
Germany, 1978 and France-UK, 1983. The latter agreement was supplemented by a forinal arrangement between the UK Nuclear Installations Inspectorate and the Frenchequivalent for the continuous exchange of information on safety issues.
246 See Il'oodliffe, 'Tackling Transbo~uldary
Environmental Hazards: at pp. 117-20.
242

INTERNATIONAL ENVIRONMENTAL LAW

799

consequences.247States are to respond promptly to a request for further
information or consultations sought by an affected state.248
It is also to be noted that although the Convention does not apply to
military nuclear accidents, the five nuclear weapons states made Statements of Voluntary Application indicating that they would apply theConvention to all nuclear accidents, including those not specified in thatagreement.249
Since this Convention was adopted, a variety of bilateral agreements
have been signed which have been more wide-ranging than those signed
beforehand and which in some cases have gone beyond the provisions
specified in the Notification Convention. The agreements signed by the
UK with Norway, the Netherlands and Denmark during 1987-8, for example, specify that there is an obligation to notify the other parties if
there is an accident or activity in the territory of the notifying state fromwhich a transboundary effect of radiological safety significance is likely
and additionally where abnormal levels of radiation are registered thatare not caused by release from facilities or activities in the notifying state's
territory. Extensive provisions are also included dealing with exchanges
of information.250
The provision of assistance 251
The earliest treaty providing for assistance in the event of radiation accidents was the Nordic Mutual Assistance Agreement, 1963. This dealt withthe general terms of assistance, the advisory and co-ordinating role ofthe IAEA, financing, liability and privileges and immunities. The United
Nations established the UN Disaster Relief Office (UNDRO) in 1 9 7 2 ~ ~ ~and this provides assistance in pre-disaster planning. In 1977 the IAEA"'Article 2. See also article 5.

'" Article 6.

249 See text in 25 ILM, 1986, p. 1394.

See e.g. T/LLoodliffe,'Chernobyl: p. 464. See the European Community Council Directive
871600 of December 1987, which provides for the early exchange of information in theevent of a radiological emergency. See also the EC Environmental Information Directive
1990 providing for a right of access to environmental information; article 9 of the Convention for the Protection of the Marine Environment of the North-East Atlantic, 1992
and Chapter 111of the Convention on Civil Liability for Damage Resulting from Activities
Dangerous to the Environment, 1993.
See e.g. A. 0.Adede, ThelAEA Notijicution undAssistnilce Conventions in Case ofa Nt~cleur
Accident: Landinarks in the History ~f~M~llzlltilateral
Treaty-Making, London, 1987.
252 A Disaster Relief Coordinator ~vasprovided for in General Assembly resolution 2816
(XXVI).See Sands, Chernobyl: Law and Communication, p. 45.
"'O

800

I N T E R N A T I O N A L LAW

concluded an agreement with UNDRO with the purpose of co-ordinating
their assistance activities in the nuclear accident field and in 1984 published a series of guidelines2'" setting out the mechanics of co-operation
between states, including references to the problems of costs, liability,
privileges and immunities.
In 1986, following the Chernobyl accident and at the same time as
the Notification Convention, the Vienna Convention on Assistance in theCase of a Nuclear Accident or Radiological Emergency was adopted. This
provides that a state in need of assistance in the event of a nuclear accident or radiological emergency may call for such assistance from anyother state party either directly or through the I A E A . ~ 'This~applieswhether or not such accident or emergency originated within its territory, jurisdiction or control. States requesting assistance (which may
include medical assistance and help with regard to the temporary relocation of displaced persons2j5)must provide details of the type of assistancerequired and other necessary information."' The IAEA must respondto a request for assistance by making available appropriate resources
allocated for this purpose and by transmitting promptly the request toother states and international organisations possessing the necessary resources. In addition, if requested by the state seeking assistance, the IAEA
will co-ordinate the assistance at the international level. The IAEA isalso required to collect and disseminate to the states parties information concerning the availability of experts, equipment and materials andwith regard to methodologies, techniques and available research data
relating to the response to such ~ i t u a t i o n s . ~The' ~ general range of assistance that can be provided by the Agency is laid down in some detai1.1j8
In general terms, the Assistance Convention seeks to balance considerations relating to the sovereignty of the requesting ~ t a t e , " the~ legitimate
rights of the assisting state or states2'' and the interests ofthe international'" Guidelines for M ~ ~ t uEmergencyal
Assistance Arrangements in Connection with a Nuclear
Accident or Radiological Emergency, Sands, Chernobyl: Latv and Conlrnunication, p. 199.
Article 2(1).
2"Article 2(5).
2"Article 2(2).
'j7 Article 5.
Ibid.
under article 3(a), and unless otherwise agreed, the requesting state has the overall
direction, control, co-ordination and supervision of the assistance within its territory.
260 Under article 7, the assisting state is entitled, unless it offers its assistance without costs,
to be reimbursed for all the costs incurred by it, which are to be provided promptly, andunder article 10(2), unless otherwise agreed, a requesting state is liable to compensate
the assisting state for all loss of or damage to equipment or materials and for the death ofor injury to personnel of the assisting party or persons acting on its behalf. There is no
2'4"'

INTERNATIONAL ENVIRONMENTAL LAW

801

community in rendering rapid assistance to affected states. Whether thebalance achieved is a fair one is open to discussion.261
Nuclear safety
The Convention on Nuclear Safety was adopted by the IAEA in 1994.
This emphasises that responsibility for nuclear safety rests with the state
having jurisdiction over a nuclear installation262and obliges states parties
to take legislative and administrative measures to implement Convention
obligations263via a regulatory body2" and to submit reports to periodic
review meetings of all parties.265The Convention provides that operatorsof nuclear installations must be licensed2" and it is the operators thatremain primarily responsible for the safety of the installation^.^^' The
Convention specifies a number of safety considerations, but these are notin the form of binding obligations upon the parties.268
Civil liability269
In addition to the issue of the responsibility or liability of the state for theactivity under consideration, the question of the proceedings that may
be taken by the individual victims is also raised. One possible approachis to permit the victim to have access to the legal system of the foreign
polluter and thus to all remedies available on a non-discriminatory basis.
This would have the effect of transforming the transboundary pollution
into a national matter.270This approach is evident in some treaties.271The
problem is that while placing the foreign victim on a par with nationals
provision dealing with liability for damage caused by the assisting state. See also article 8
dealing with privileges and immunities.
See e.g. Sands, Cherrlobyl: Latv and Con~rnllnication,p. 47, and Woodliffe, 'Tackling Transboundary Environmental Hazards: p. 127.
Defined as 'a land-based civil nuclear power plant: article 2(1).
'6' Articles 4 and 7.
2"
Article 8.
Articles 5 and 20-5. The IAEA is to provide the secretariat for the meetings of the parties,
article 28.
' 6 6 Article 7(2)ii.
26' Article 9.
Articles 10-19. See also the Joint Convention on the Safety of Spent Fuel and Radioactive
Waste Management, 1997, which is based upon the IAEA's Principles of Radioactive
Waste Management, 1995 and the Code of Practice on the International Transboundary
Movement of Radioactive Waste, 1990. Its main provisions are similar to those of the
Nuclear Safety Convention.
See e.g. Birnie and Boyle, International Law and the Environment, pp. 476 ff., and Sands,
Principles, pp. 653 ff.
See e.g. Boyle, 'Nuclear Energy', pp. 297-8.
'71 See e.g. the Nordic Convention on the Protection of the Environment, 1974. See also
OECD Recominendations C(74)224, C(76)55 and C(77)28.

'"
'"

'''

So2

I N T E R N A T I O N A L LAW

within the domestic legal system of the offender, it depends for its value
upon the legal system possessing internal legislation of appropriate substantive content. This is not always the case. There are, however, several
international agreements dealing specifically with the question of civil
liability in the sphere of nuclear activities which operate on the basis ofcertain common general principles.
The OECD Paris Convention on Third Party Liability in the Field of
Nuclear Energy, 1 9 6 0 provides~ ~ ~ that the operator of a nuclear installation shall be liable for damage to or loss of life of any person and damage
to or loss of any property (other than the nuclear installation and associated property or means of transport). The IAEA Vienna Convention
on Civil Liability for Nuclear Damage, 1963 has similar provisions, but isaimed at global participation. However, both the Paris Convention andthe Vienna Convention systems have suffered from relatively limited participation and a Joint Protocol was adopted in 1988 linking the Paris andVienna Convention regimes, so that parties under each of these conventions may benefit from both ofthem. In 1997 a Protocol to Amend the 1963
Vienna Convention and a Convention on Supplementary Compensation
for Nuclear Damage were adopted by over eighty states. These instruments
increased the scope of liability of operators to a limit of not less than 300
million Special Drawing Rights (approx 400 million US dollars) and thegeographical scope of the Convention. In addition, an improved definition of nuclear damage, to include, for example, environmental damage,was provided.273
These conventions operate upon similar principles. It is the actual operator of the nuclear installation or ship that is to bear the 10ss~~"nd thisis on the basis of absolute or strict liability. Accordingly, no proof of fault"' Together with Protocols of 1964 and 1982.
"' See e.g. 36 ILM, 1997, p. 1454, and ibid.,p. 1473. See also http://mr.iaea.or.at/~~orldatom/Documents/Legaliprotamend.shtm
and http://www.iaea.or.at/worldatom/
Documents/Legal/supcomp.shtml. Note also the Brussels Convention on the Liabilityof Operators of Nuclear Ships, 1962 which provides that the operator of a nuclear ship
shall be absolutely liable for any nuclear damage upon proof that such damage has beencaused by a nuclear incident involving the nuclear fuel of, or radioactive products or
waste produced in, such ship and the Convention Relating to Civil Liability in the Fieldof Maritime Carriage of Nuclear Material, 1971 which provides that a person held liablefor damage caused by a nuclear incident shall be exonerated from such liability if the operator of a nuclear installation is liable for such damage under either the Paris or Vienna
Conventions.
274 A carrier or handler of nuclear material may be regarded as such an operator where thelatter consents and the necessary legislative framework so provides: see e.g. article 4(d)of the Paris Cowention.

INTERNATIONAL ENVIRONMENTAL LAW

803

or negligence is required. The conventions require operators to possess
appropriate liability insurance or other financial security under the conditions laid down by the competent public authorities, unless the operatorb n drelevant states are to ensure that claims up tois itself a ~ t a t e , ~ ~ thethe liability limits are met.276This recognition of the residual responsibility of the state is unique.277The amount of liability of the operator
may, however, be limited.27"he relevant conventions also determine
which state has jurisdiction over claims against operators or their insurers. In general, jurisdiction lies with the state where the nuclear incident
occurred, although where a nuclear incident takes place outside the territory of a contracting party or where the place of the nuclear incident
cannot be determined with certainty, jurisdiction will lie with the courtsof the contracting party in whose territory the nuclear installation of theoperator liable is situated.279~udgmentsgiven by the competent courts
are enforceable in the territory of any contracting party.
The issue of inter-state claims is more difficult, as was demonstrated by
the aftermath of the Chernobyl accident. Many states have paid compensation to persons affected within their jurisdiction by the fallout from that
accident, but while positions have been reserved with regard to claims directly against the former USSR, it seems that problems relating to the obligations actually owed by states and the doubt over the requisite standardof care have prevented such claims from actually being made.280

Hazardous wastes 281
The increasing problem of the disposal of toxic and hazardous wastes andthe practice of dumping in the Third World, with its attendant severe
health risks, has prompted international action.282The Oslo Convention
See e.g. article 10 of the Paris Convention, article VII of the Vienna Convention and article
111 of the Brussels Convention on Nuclear Ships.
' 7 6 Ibid.
"'Cf. the Convention on Civil Liability for Oil Pollution Damage, 1969.
278 See articles V and VI of the Vienna Convention as amended in 1997, articles 7 and 8 of
the Paris Convention and articles 111and V of the Brussels Convention on Nuclear Ships.
27y ~ r t i c l e
13 of the Paris Convention, article XI of the Vienna Convention and article X of
the Brussels Convention on Nuclear Ships.
See e.g. Sands, Chernobyl: Law and Cornlnt~nication,pp. 26-8.
281 See e.g. Sands, Principles, chapter 11, and Birnie and Boyle, International Luw und theEnvironment, chapter 8.
See Keesingi Record of World Event$, pp. 36788-9 (1989). See also Principle 6 of theStockholm Declaration 1972 and Principle 14 of the Rio Declaration 1992.
'75

804

I N T E R N A T I O N A L LAW

for the Prevention of Marine Pollution by Dumping from Ships and Air~ ~ ~ for a ban on the dumping of certain substancesB4
craft, 1 9 7 2 provides
and for controls to be placed on the dumping of others.285The London Convention on the Prevention of Marine Pollution by Dumpingof Wastes and Other Matter, 1 9 7 2 ~prohibits~~
the dumping of wastes
except as provided in the Convention itself, and this is strictly controlled.
In 1988, the Organisation of African Unity adopted a resolution proclaiming the dumping of nuclear and industrial wastes in Africa to bea crime against Africa and its people. In 1991, the OAU adopted the
Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes
within ~ f r i c aunder, ~ ~ which~
parties are to prohibit the import of all hazardous wastes for any reason into Africa by non-parties and to prohibit
the dumping at sea of such wastes. The OECD has adopted a numberof Decisions and Recommendations concerning the transfrontier movements and exports of hazardous wastes.288In 1989 the OECD adopted
a ~ e c o m m e n d a t i o n noting~ ~ ' that the polluter-pays principle should apply to accidents involving hazardous substances. The Basle Convention
on the Control of Transboundary Movements of Hazardous Wastes andTheir Disposal, 1989 provides that parties shall prohibit the export ofhazardous and other wastes to parties which have prohibited the import ofsuch wastes and have so informed the other parties. In the absence of prohibition by the importing state, export to that state of such wastes is only
permissible where consent in writing to the specific import is obtained.290
The Convention also provides that any proposed transboundary movement of hazardous wastes must be notified to the competent authoritiesof the states concerned by the state of export. The latter shall not allow
the generator or exporter of hazardous wastes to commence the transboundary movement without the written consent of the state of import
and any state of transit.291
In 1990, the IAEA adopted a Code of Practice on the International
Transboundary Movement of Radioactiveemphasising that
This is limited essentially to the North-East Atlantic area.
285 Listed in Annex 11.
286 This is a global instrument.
2"
30 ILM, 1991, p. 773.
lS8See e.g. 23 ILM, 1984, p. 214; 25 ILM, 1986, p. 1010 and 28 ILM, 1989, pp. 277 and 259.
*" C(89)88.
190 Article 4. Note also the Convention on the Prior Informed Consent Procedure for Certain
Hazardous Chemicals and Pesticides in International Trade, 1998.
l9' Article 6.
292 30 ILM, 1991, p. 556.
l"

284 Listed in Annex I.

INTERNATIONAL ENVIRONMENTAL LAW

805

every state should ensure that such movements take place only with theprior notification and consent of the sending, receiving and transit statesin accordance with their respective laws and regulations. Appropriate regulatory authorities were called for, as well as the necessary administrative
and technical capacity to manage and dispose of such waste in a mannerconsistent with international safety ~tandards.~'"The Convention on the Transboundary Effects of Industrial Accidents
adopted in 1992 applies to industrial accidents in an installation or duringtransportation resulting from activities involving hazardous substances(identified in Annex I). It does not apply to nuclear accidents, accidents
at military installations, dam failures, land-based transport accidents, accidental release of genetically modified organisms, accidents caused by
activities in the marine environment or spills of oil or other harmful
substances at sea.294The Convention provides that parties of origin295
should identify hazardous activities within the jurisdiction and ensurethat affected parties are notified of any such proposed or existing activity.
Consultations are to take place on the identification of those hazardous
activities that may have transboundary effects.296A variety of preventive
measures are posited.29' In particular, the party of origin shall require
the operator in charge of such hazardous activity to demonstrate the safe
performance of that activity by the provision of information.298Parties
are to develop policies on the siting of new hazardous activities and on
significant modifications to existing hazardous activities, while adequate
emergency preparedness to respond to industrial accidents is to be established and maintained.299An industrial accident notification systemis established,300while by article 13 the parties 'shall support appropriate
international efforts to elaborate rules, criteria and procedures in the fieldof responsibility and liability'.30'"' See now also the Principles of Radioactive TITasteManagement, 1995 and the Joint Conyention on the Safety of Spent Fuel and Radioactive Waste Management, 1997.

"' Article 2 (2).

1.e. parties under whose jurisdiction an industrial accident occurs or is capable of occurring, article 1(g).
296 Article 4. See also Annexes I1 and 111.
See article 6 and Annex IV.
*" Article 6(2) and Annex V.
'0°
299 Articles 7 and 8 and Annex 17.
Article 10 and Annex IX.
See also the Memorandum of Understanding Concerning Establishment of the InterOrganisation Programme for the Sound Management of Chemicals, 1995 signed by the
Food and Agriculture Organisation, the International Labour Organisation, the Organisation for Economic Co-operation and Development, the UN Industrial Development Programme, the UN Environment Programme and the 14TorldHealthOrganisation. The areas
for co-ordination include the international assessment of chemical risks, information'95'"

I N T E R N A T I O N A L LAW

Marine pollution302

Marine pollution can arise from a variety of sources, including the operation of shipping, dumping at sea,303activities on the seabed3'%nd theeffects of pollution originating on the land and entering the seas."' There
are a large number of treaties, bilateral, regional and multilateral, dealing
with such issues and some of the more significant of them in the field ofpollution from ships will be briefly noted.

Pollution from ships
The International Convention for the Prevention of Pollution of the Sea
by Oil, 1954 basically prohibits the discharge of oil within 50 miles of land
and has been essentially superseded by the International Convention for
exchange and the prevention of illegal international traffic in toxic and dangerous products: see 34 ILM, 1995, p. 1311.
See e.g. Sands, Principles, chapter 8; Birnie and Boyle, International Lalv and the Environment, chapter 7; R. Churchill and A. 17. Lowe, The Law of the Sea, 3rd edn, Manchester,
1999, chapter 15; A. E. Boyle, 'Marine Pollution under the Law of the Sea Convention',
79 AJIL, 1985, p. 347; L. Caflisch, 'International Law and Ocean Pollution: The Present
and the Future: 8 Revue Belge de Droit International, 1972, p. 7, and 0.Schachter, 'The
Value of the 1982 UN Convention on the Law of the Sea: Preserving our Freedoms
and Protecting the Environment', 23 Ocean Development and International Law, 1992,
p. 55.
O''
See above, p. 553, and Churchill and Lowe, Lmv of the Sea, p. 363. See also D. Bodansky,'Protecting the Marine Environment from Vessel-Source Pollution: UNCLOS I11 andBeyond: 18 Ecology Lalv Quarterly, 1991, p. 719, and Y. Sasamura, 'Prevention and Controlof Marine Pollution from Ships', 25 Law ofthe Sea Instittlte Proceedings, 1993, p. 306.
'04 See Churchill and Lo~ve,
La14 of the Sea, p. 370.
jo5Articles 194 and207 ofthe Convention on the Law ofthe Sea, 1982 provideingeneral terms
for states to reduce marine pollution from land-based sources. Note that the Montreal
Guidelines on the Protection of the Environment Against Pollution from Land-Based
Sources, 1985 built upon article207. Anumber ofregional conventions (many ofthem UN
Environment Programme Regional Seas Conventions) lay down specific rules dealing withthe control of particular substances: see e.g. the Barcelona Convention for the Protectionof the Mediterranean Sea Against Pollution, 1976 and its two Protocols of 1980 andait
Convention for Co-operation on Protection of the Marine
1982; the K ~ ~ ~ vRegional
Environment from Pollution, 1978 and Protocols of 1978, 1989 and 1990; the Abidjan
Convention for Co-operation in the Protection and Development of the lMarine andCoastal Environment of the West and Central Africa Region, 1981 and Protocol of 1981;
the Lima Convention for the Protection of the Marine Environment and Coastal Areas of
the South-East Pacific, 1981 and Protocols; the Cartagena Convention for the Protection
and Development of the Marine Environment of the Wider Caribbean Region, 1983
and two Protocols of 1983 and 1990; the Convention on the Protection of the Black Sea
Against Pollution, 1992; the Convention for the Protection of the Marine Environmentof the North-East Atlantic, 1992 and the Convention on the Protection of the Marine
Environment of the Baltic Sea Area, 1992.

"'

INTERNATIONAL ENVIRONMENTAL LAW

807

the Prevention of Pollution from Ships, 1 9 7 3 , ~ which'~is concerned withall forms of non-accidental pollution from ships apart from dumping.
In Annexes and other amendments and Protocols to the onv vent ion,'^'detailed standards are laid down covering oil, noxious liquid substancesin bulk, harmful substances carried by sea in packaged form, sewage andgarbage. The Convention covers ships flying the flag of, or operated under
the authority of, a state part): but does not apply to warships or stateowned ships used only on governmental non-commercial service.
Article 21 l ( 2 ) of the Convention on the Law of the Sea, 1982 provides
that states are to legislate for the prevention, reduction and control ofpollution of the marine environment from vessels flying their flag or of
their registry. Such rules are to have the same effect at least as that ofgenerally accepted international rules and standards established throughthe competent international organisation308or general diplomatic conference. States are also to ensure that the ships of their nationality or of
their registry comply with 'applicable international rules and standards'
and with domestic rules governing the prevention, reduction and control of pollution.309In addition, coastal states have jurisdiction physicallyto inspect, and, where the evidence so warrants, commence proceedings
against ships in their territorial waters, where there are clear grounds forbelieving that the ship concerned has violated domestic or international
pollution regulation^."^ It should also be noted that a state in whose
port a vessel is may take legal proceedings against that vessel not only
where it is alleged to have violated that state's pollution laws or applicableinternational rules in its territorial sea or economic zone,311but also inrespect of any discharge outside its internal waters, territorial sea or exclusive economic zone in violation of applicable international rules andstandards.312
Where an accident takes place, the Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969"'" permits~ n o w nas the MARPOL Convention. This was modified by Protocols of 1978
and 1997 and has been further amended: see http:ll~.~'~'~~.imo.orgiCon~~entionslcontents.asp?doc-id=678&toplc_id=258.
307 Note e.g. that Annexes I and I1 are fully binding, while Annexes 111, IV and V are options
which a state may declare it does not accept when first becoilling a party to the Convention,
article 14.
'08 The Interilatioilal Maritime Organisation: see http:111mmv.iino.org.
'09 Article 217.
3 L n Article 220(2).
'I1 Article 220(1).
Article 218. A provision characterised as 'truly innovatory' by Churchill and Lowe, Lawof the Sea, p. 350.
The adoption of this Coilvention followed the Torrey Canyoil incident in 1967 in whicha ship aground, although on the high seas, was bombed in order to reduce the risk of oil
'06

"'

808

I N T E R N A T I O N A L LAW

states parties to take such measures on the high seas as may be necessary
to prevent, mitigate or eliminate grave and imminent danger to theircoastline or related interests from pollution or threat of pollution of thesea byAn International Convention on Oil Pollution Preparedness,
Response and Co-operation was signed in London in November 1990,
with the purpose of ensuring prompt and effective action in the event ofa pollution incident. It requires ships to carry detailed plans for dealing
with pollution emergencies. Pollution incidents must be reported without delay and, in the event of a serious incident, other states likely to beaffected must be informed and details given to the International Maritime
Organisation. National and regional systems for dealing with such incidents are encouraged and the contracting parties agree to co-operate andprovide advisory services, technical support and equipment at the requestof other parties.'''As far as liability is concerned, the Convention on Civil Liability for
Oil Pollution Damage 1969 provides that where oil escaping from a shipcauses damage on the territory or territorial sea of a contracting party,
the shipowner is strictly liable for such damage, which includes the costsof both preventive measures and further loss or damage caused by suchmeasure^."'^ This liability is limited, however, unless the pollution is theresult of the fault of the shipowner.317The shipowner must maintain insurance or other financial security to cover its liability. Claims may bebrought in the courts of the party in which loss or damage has occurredor preventive measures taken and the judgments of such courts arepollution: see Churchill and Lowe, Law of the Sea, p. 354. See also the Report of the Home
Office, Cmnd 3246 (1967).
'I4 This mias extended by a Protocol of 1973 to cover pollution from su~bstances
other than oil.
Note that the International Conliention on Salvage, 1989 seeks to integrate environmental
factors into the salvage rewards system.
See e.g. the Bonn Agreement for Co-operation in Dealing with Pollution of the North
Sea by Oil, 1969 and the Agreement for Co-operation in Dealing with Pollution of theNorth Sea by Oil and Other Harmful Substances, 1983. Many of the UN Environment
Programme Regional Seas Conventions have Protocols dealingwith emergency situations:see e.g. Sands, Principles, 17. 337.
" 6 Except where the damage results from war or acts of God; is wholly caused by an act
or omission done by a third party with intent to cause damage; or where the damageis wholly caused by the negligent or other wrongful act of any government or otherauthority responsible for the maintenance of navigational aids: see articles I1 and 111.
See also the Convention on Civil Liability for Oil Pollution Damage Resulting from
Exploration and Exploitation of Seabed Mineral Resources, 1977, which establishes theliability of the operator of an installation under the jurisdiction of a party for pollution
damage resulting from incidents taking place beyond the coastal low-water line.
Article V.

"'"'

INTERNATIONAL ENVIRONMENTAL LAW

809

generally recognisable and enforceable in the courts of allparties. The 1969
Convention was amended by the Protocol on Liability, 1992,"~which includes in the definition of damage compensation for impairment of theenvironment provided that this is limited to costs of reasonable measures~ ' ~ Conof reinstatement actually undertaken or to be ~ n d e r t a k e n .The
vention on the Establishment of an International Fund for Compensation
for Oil Pollution Damage was adopted in 1971 and enables compensation
to be paid in certain cases not covered by the Civil Liability Convention.
The Convention and Protocols of 1976 and 1984 were superseded by aProtocol of 1992 and the Convention ceased to be in force as from 24
May 2002. The 1992 Protocol established a separate, 1992 International
Oil Pollution Compensation Fund, known as the 1992 ~ u n d . ~ ~ 'Suggestions for further reading
P. Birnie and A. Boyle, International Latv and the Environment, 2nd edn, Oxford,
2002

R. Churchill and A. V. Lowe, The Law of the Sea, 3rd edn, Manchester, 1999
P. Oko~va,State Responsibility for Transboundary Air Pollution, Oxford, 2000
P. Sands, Principles of International Environnzental Law, hlanchester, 1995
'IR
When this enters into force, the 1969 Convention will become known as the International'I9"O

Convention on Civil Liability for Oil Pollution Damage, 1992.
Article 2(3).
Amendments adopted in 2000 raised the amounts of compensation: see generally Sands, Principles, p. 660, and the Patrnos case, ibid., pp. 661-2. See also
http://mv.imo.orgiConventions/contents.asp?topic~id=256&docid=66
1.

The law of treaties

Compared with municipal law the various methods by which rights andduties may be created in international law are relatively unsophisticated.'
Within a state, legal interests may be established by contracts between two
or more persons, or by agreements under seal, or under the developed system for transferring property, or indeed by virtue of legislation or judicial
decisions. International law is more limited as far as the mechanisms forthe creation of new rules are concerned. Custom relies upon a measureof state practice supported by opinio juris and is usually, although notinvariably, an evolving and timely process. Treaties, on the other hand,are a more direct and formal method of international law creation.
States transact a vast amount of work by using the device of the treaty,
in circumstances which underline the paucity of international law procedures when compared with the many ways in which a person withina state's internal order may set up binding rights and obligations. For
instance, wars will be terminated, disputes settled, territory acquired,special interests determined, alliances established and internationalorganisations created, all by means of treaties. No simpler method ofreflecting the agreed objectives of states really exists and the international
See generally A. D. blcNair, The Law of Treaties, Oxford, 1961; 1. Klabbers, The Conceptof Treaty in Iilterilational Law, Dordrecht, 1996; A. ALW, Modern Treaty Latv and Practice,
Cambridge, 2000; Mtdtilateral Treaty Calendar (ed. C. M7iktor),The Hague, 1998; Multilateral Treaty-Makiilg(ed.V. Gowlland-Debas), The Hague, 2000; I. Detter, Essays oil the Laivof Treaties, 1967; T. 0 . Elias, The Modern Law of Treaties, London, 1974; D. P. O'Connell,
International Law, 2nd edn, London, 1970, vol. I, pp. 195 ff.; I. Sinclair, The Vienna Convention on the Law of Treaties, 2nd edn, blanchester, 1984; P. Reuter, h~troductionto the
Law o f Treaties, 2nd edn, Geneva, 1995; S. Bastid, Les Trait& duns la Vie Internationale,
Paris, 1985, and S. Rosenne, Developments in the Law o f Treaties 1945-1 95'6, Cambridge,
1989. See also OppertP~eimiIi~ternationalLatr (eds. R. Y.lennings and A. D. Watts), 9th edn,
London, 1992, p. 1197; Nguyen Quoc Dinh, P. Daillier and A. Pellet, Droit Irlterrlational
Public, 7th edn, Paris, 2002, p. 117; I. Brownlie, Principles of Public International Law, 5thedn, Oxford, 1998, chapter 26, and M. Fitzmaurice, 'Actors and Factors ill the Evolutionof Treaty Norms (An Empirical Study): 4 Austrian Review of International and European
Law, 1999, p. 1.

T H E LAW O F T R E A T I E S

811

convention has to suffice both for straightforward bilateral agreements
and complicated multilateral expressions of opinions. Thus, the conceptof the treaty and how it operates becomes of paramount importance tothe evolution of international law.
A treaty is basically an agreement between parties on the international
scene. Although treaties may be concluded, or made, between states andinternational organisations, they are primarily concerned with relations
between states. An International Convention on the Law of Treaties was
signed in 1969 and came into force in 1980, while a Convention on Treaties
between States and International Organisations was signed in 1986.~Theemphasis, however, willbe on the appropriate rules which have emerged as
between states. The 1969 Vienna Convention on the Law of Treaties partly
reflects customary law' and constitutes the basic framework for any discussion of the nature and characteristics of treaties. Certain provisions of
the Convention may be regarded as reflective of customary internationallaw, such as the rules on interpretati~n,~material breach5 and fundamental change of circumstance^.^ Others may not be so regarded, andconstitute principles binding only upon state parties.
The fundamental principle of treaty law is undoubtedly the proposition
that treaties are binding upon the parties to them and must be performedin good faiths7This rule is termed pacta sunt servanda and is arguably'''

This was based upon the International Law Commission's Draft Articles on the Law ofTreaties between States and International Organisations or between International Organisations, Yearbook of the ILC, 1982, vol. 11, part 2, pp. 9 ff. These articles were approved by
the General Assembly and governmental ~ i e w ssolicited and received. A plenipotentiary
conference was held between 18 February and 21 March 1986 to produce a Convention
based on those draft articles. See Assembly resolutions 371112, 381139 and 39186.
See e.g. the hTarnibiacase, ICJ Reports, 1971, pp. 16,47; 49 ILR, pp. 2, 37 and the Fisheries
Jurisdiction case, ICJ Reports, 1973, pp. 3, 18; 55 ILR, pp. 183, 198. See also Rosenne,
Developments, p. 12 1.
See e.g. the Beagle Channel case, HMSO, 1977, p. 7; 52 ILR, p. 93; the La Bretagne case, 82
ILR, pp. 590, 612; the Golder case, European Court of Human Rights, Series A, No. 18, p.
14; 57 ILR, pp. 201,213-14 and the Lithgow case, European Court of Human Rights, Series
A, No. 102, para. 114; 75 ILR, pp. 438,482-3.
See e.g, the Narrlibia case, ICJ Reports, 1971, pp. 16,47; 49 ILR, pp. 2, 37.
See e.g. the Fisheries Jurisdiction cases (jurisdictional phase), ICJ Reports, 1973, pp. 3, 21;
55 ILR, pp. 183,201.
Note also the references to good faith in articles 31,46 and 69 of the 1969 Convention. See
the Nuclear Tests cases, ICJ Reports, 1974, pp. 253,268; 57 ILR, pp. 398,413; the Nicaraguacase, ICJ Reports, 1986, pp. 392,418; 76 ILR, pp. 104, 129 and the Legality of the Threat or
Use ofivuclear M'eupons case, ICJ Reports, 1996, para. 102; 35 ILM, 1996, pp. 809,830. See
also J. F. O'Connor, Good Faith in International Law, Aldershot, 1991; E. Zoller, La BonneFoi en Droit International Public, Paris, 1977, and H. Thirlway, 'The Law and Procedure of
the International Court of Justice, 1960-89 (Part One)', 60 BYIL, 1989, pp. 4, 7.

812

I N T E R N A T I O N A L LAW

the oldest principle of international law. It was reaffirmed in article 26 of
the 1969 convention,' and underlies every international agreement for,in the absence of a certain minimum belief that states will perform theirtreaty obligations in good faith, there is no reason for countries to enter
into such obligations with each other.
The term 'treaty' itself is the one most used in the context of international agreements but there are a variety of names which can be, andsometimes are, used to express the same concept, such as protocol, act,
charter, covenant, pact and concordat. They each refer to the same basic
activity and the use of one term rather than another often signifies little
more than a desire for variety of expression.
A treaty is defined, for the purposes of the Convention, in article 2 as:a n international agreement concluded between states in written form andgoverned by international law, whether embodied in a single instrument orin two or more related instruments and whatever its particular d e ~ i g n a t i o n . ~In addition to excluding agreements involving international organisations, the Convention does not cover agreements between states which are
to be governed by municipal law, such as a large number of commercial
accords. This does not mean that such arrangements cannot be characterised as international agreements, or that they are invalid, merely thatthey are not within the purview of the 1969 Convention. Indeed, article 3
stresses that international agreements between states and other subjectsof international law or between two or more subjects of international law,or oral agreements, do not lose their validity by being excluded from theframework of the Convention.
There are no specific requirements of form in international law for the
existence of a treaty,'' although it is essential that the parties intend to create legal relations as between themselves by means of their agreement."
This is logical since many agreements between states are merely statementsof commonly held principles or objectives and are not intended to establish binding obligations. For instance, a declaration by a number of statesin support of a particular political aim may in many cases be without legal
See e.g. the Gabi-ikovo-Nagynlaros Project case, ICJ Reports, 1997, pp. 7, 78-9; 116 ILR,
p. 1.
In the 1986 Convention on Treaties between States and International Organisations, thesame definition is given, substituting states and international organisations for states alone.
l o See e.g. the Ne~~foundland/Nova
Scotia arbitration, 2001, para. 3.15. See also the Aegean
Sea Continental Shelfcase, ICJ Reports, 1978, pp. 3, 39; 60 ILR, p. 511.
l 1 See e.g. Third US Restatement of Foreign Relations Law, IVashingtoi~,1987, vol. I, p. 149.

T H E LAW O F T R E A T I E S

a13(though not political) significance, as the states may regard it as a policy
matter and not as setting up juridical relations between themselves. To
see whether a particular agreement is intended to create legal relations,
all the facts of the situation have to be examined carefully.12Examples ofnon-binding international agreements would include the Final Act of theConference on Security and Co-operation in Europe, 1975.'"
It should be noted that the International Court regarded a mandate
agreement as having the character of a treaty,14while in the Anglo-Iranian
Oil Co. case'' doubts were expressed about whether a concession agreement between a private company and a state constituted an international
agreement in the sense of a treaty.16 Optional declarations with regard to
the compulsory jurisdiction of the International Court itself under article
36(2) ofthe Statute ofthe Court have been regarded as treatypr~visions,~'
while declarations made by way of unilateral acts concerning legal or factual situations may have the effect of creating legal obligation^.'^ In thelatter instance, of course, a treaty as such is not involved.
Where the parties to an agreement do not intend to create legal relations
or binding obligations or rights thereby, the agreement will not be atreaty, although, of course, its political effect may still be con~iderable.'~'' Registration ofthe agreement with the United Nations under article 102 of the UN Charteris one useful indication. However, as the International Court pointed out in the Qatar v.
Bahrain case, non-registration does not affect the actual validity of an interilatioilal agreement nor its binding quality, ICJ Reports, 1994, pp. 115, 121; 102 ILR, pp. 1, 18.
See further above, chapter 7, p. 346.
' " o u t h - ~ i e s t ~ f r i c a cases, ICJ Reports, 1962, pp. 319, 330; 37 ILR, pp. 3, 12.
l5 ICJ Reports, 1952, pp. 93, 112; 19 ILR, pp. 507,517.
"' ut
see Texaco v. Libya, 53 ILR, p. 389.
The Fisheries Jurisdictior~cases, ICJ Reports, 1973, pp. 3, 16; 55 ILR, pp. 183, 196.
l 8 The Nuclear Tests case, ICJ Reports, 1974, pp. 253, 267; 57 ILR, pp. 398,412. See also the
Ihlen Declaration, held to constitute a binding statement, in the Eastevil Greenland case,
PCIJ, Series AIB, No. 53, 1933; 6 AD, p. 95 and Burkina Faso v. Mali, ICJ Reports, 1986,
pp. 554, 5 7 3 4 ; 80 ILR, pp. 459,477. See further above, chapter 3, p. 114.
I y The test will focus upon the intent of the parties as seen in the language and context ofthe document concerned, the circumstances of its conclusion and the explanations givenby the parties: see the view of the US Assistant Legal Adviser for Treaty Affairs, 88 AJIL,
Schachter, 'The Twilight Existence of Nonbinding International
1994, p. 515. See also 0.
Agreements: 71 AJIL, 1977, p. 296, and Rosenne, Developmerlts, 17.91.See e.g. the Helsinki
Final Act of 1975, which was understood to be non-binding and thus not a treaty by
the parties involved, DUSPIL, 1975, 1317. 326-7. See also the dispute between the USA
and the UK as to the legal status of a n ~ e n ~ o r a n d uofn ~understanding relating to the
US-UK Air Services Agreement, 1977 (Bermuda 11) in the context of Heathrow Airport
User Charges Arbitration, UKMIL, 63 BYIL, 1992, pp. 712 ff. and 88 ATIL, 1994, pp.
738 ff. The Tribunal noted that the memorandum of understanding was not a source ofindependent legal rights and duties but 'consensual subsequent practice of the parties'

814

I N T E R N A T I O N A L LAW

In fact a large role is played in the normal course of inter-state dealings by
informal non-treaty instruments precisely because they are intended to
be non-binding and are thus flexible, confidential and relatively speedy incomparison with treaties2' They may be amended with ease and without
delay and may be terminated by reasonable notice (subject to provision
to the contrary). It is this intention not to create a binding arrangement
which marks the difference between treaties and informal international
instruments. The International Court addressed this issue in the Qatar v.
Bahrain case,2' with regard to Minutes dated 25 December 1990 signedby the parties and Saudi Arabia. The Court emphasised that whether anagreement constituted a binding agreement would depend upon 'all its
actual terms' and the circumstances in which it had been drawn
andin the situation involved in the case, the Minutes were to be construed as aninternational agreement creating rights and obligations for the parties
since on the facts they enumerated the commitments to which the parties
had consented.23In addition, a treaty may contain a variety ofprovisions,
not all of which constitute legal obligation^.^^The 1969 Convention also concerns treaties which are the constituent
instruments of international organisations, such as the United Nations
Charter, and internal treaties adopted within international organisa-

ti on^.^'
and an aid to the interpretation of the Bermuda I1 Agreement, 102 ILR, pp. 215, 353. The
UK Foreign Office has noted that a memorandum of understanding is 'a form frequently
used to record informal arrangements between states on matters which are inappropriate
for inclusion in treaties or where the form is more con\~enientthan a treaty, ( e x" . forconfidentiality). They may be drawn up as a single document using non-treaty tenns,
signed on behalf of two or more governments, or consist of an exchange of notes or lettersrecording an understanding between two governments: UKMIL, 71 BYIL, 2000, p, 534,
and see Aust, Modern Treaty Law, chapter 3.
See e.g. Rosenne, Development.c, pp. 107 ff.; A. Aust, 'The Theory and Practice of Informal
International Instruments: 35 ICLQ, 1986, p. 787; R. l3axtel; 'International La~vin "HerInfinite Variety" ', 29 ICLQ, 1980, p. 549, and Roessler, 'La~v,De Fucto Agreements andDeclarations of Principles in International Economic Relations', 21 German YIL, 1978,
p. 41.
ICJ Reports, 1994, p. 112; 102 ILR, p. 1.
77-ICJ Reports, 1994, p. 121; 102 ILR, p. 18, citing the Aegenn Sen Continental Skelfcase, ICJ
Reports, 1978, p. 39; 60 ILR, p. 511.
ICJ Reports, 1994, pp. 121-2; 102 ILR, pp. 18-19. See also K. Widdows, 'What is an
International Agreement in International Law?: 50 BYIL, 1979, p. 117, and J. A. Barberis,'Le Concept de "Trait6 International" et ses Limites: AFDI, 1984, p. 239.
"'eethe Oil P1utforin.c (Prelimiizury 0bjectioil.c) case, ICJ Reports, 1996, pp. 803, 820.
Article 5. See further Rosenne, Developments, chapter 4.

"
''

''
''

T H E LAW O F T R E A T I E S

The making of treaties26
Formalities
Treaties may be made or concluded by the parties in virtually any manner
they wish. There is no prescribed form or procedure, and how a treaty
is formulated and by whom it is actually signed will depend upon theintention and agreement of the states concerned. Treaties may be drafted
as between states, or governments, or heads of states, or governmental
departments, whichever appears the most expedient. For instance, many
ofthe most important treaties are concluded as between heads of state, andmany of the more mundane agreements are expressed to be as between
government departments, such as minor trading arrangements.
Where precisely in the domestic constitutional establishment the power
to make treaties is to be found depends upon each country's municipal
regulations and varies from state to state. In the United Kingdom, thetreaty-making power is within the prerogative of thewhereas in
the United States it resides with the President 'with the advice and consent
of the Senate' and the concurrence of two-thirds of the Senators z 8
Nevertheless, there are certain rules that apply in the formation of international conventions. In international law, states have the capacity tomake agreements, but since states are not identifiable human persons, particular principles have evolved to ensure that persons representing statesindeed have the power so to do for the purpose of concluding the treaty
in question. Such persons must produce what is termed 'full powers' according to article 7 of the Convention, before being accepted as capableof representing their c~untries.:~'Full powers' refers to documents certifying status from the competent authorities of the state in question. This
provision provides security to the other parties to the treaty that they are
26 See e.g. H. Mix, Treaty-Mnking Power, New York, 1960, and E. I\'. Vierdag, 'The Time of

the Conclusion of a Multilateral Treaty: Article 30 of theVienna Convention o n the La117 ofTreaties and Related Provisions', 59 RYIL, 1988, p. 75. See also Oppenl~eim'slnternrttiorlal
Law, p. 1222, and Nguyen Quoc Dinh et al., Droit International Public, p. 125.
27 See e.g. S. de Smith andR. Brazier, Constitutional andAdministrative Lutv, 6th edn, London,
1989, p. 140.
See e.g. Third US Restatement of Foreign Relations Law, p. 159. See, with regard to the
Presidential power to terminate a treaty, DUSPIL, 1979, pp. 724 ff., and Goldwater v.
Carter, 617 F.2d 697 and 100 S. Ct. 533 (1979). See also L. Henkin, 'Restatement of theForeign Relations Law of the United States (Revised)', 74 AJIL, 1980, p. 954.
29 See Sinclair, Vienna Convention, pp. 29 ff.; Aust, Modern Treaty Law, chapter 5, and

M. Jones, Fldl Powers and Ratificatioil, 1946.

816

I N T E R N A T I O N A L LAW

making agreements with persons competent to do so.30However, certain
persons do not need to produce such full powers, by virtue of their position and functions. This exception refers to heads of state and government,
and foreign ministers for the purpose of performing all acts relating to theconclusion of the treaty; heads of diplomatic missions for the purpose of
adopting the text of the treaty between their country and the country towhich they are accredited; and representatives accredited to international
conferences or organisations for the purpose of adopting the text of thetreaty in that particular conference or organisation. The International
Court noted in the Application of the Genocide Convention (Bosnia) casethat, 'According to international law, there is no doubt that every head ofstate is presumed to be able to act on behalf ofthe state in its international

relation^.'^'
Sinclair notes that UK practice distinguishes between 'general full powers' held by the Secretary of State for Foreign and Commonwealth Affairs,
Ministers of State and Parliamentary Under-Secretaries in the Foreign andCommonwealth Office and UK Permanent Representatives to the UN,
European Communities and General Agreement on Tariffs and Trade,which enable any treaty to be negotiated and signed, and 'special fullpowers' granted to a particular person to negotiate and sign a specifictreaty.32
Any act relating to the making of a treaty by a person not authorised
as required will be without any legal effect, unless the state involved afterwards confirms the act.33One example of this kind of situation arose
in 1951 with regard to a convention relating to the naming of cheeses. It
was signed by a delegate on behalf of both Sweden and Norway, but it appeared that he had authority only from Norway. However, the agreement
was subsequently ratified by both parties and entered into effect.34
Consent
Once a treaty has been drafted and agreed by authorised representatives, anumber of stages are then necessary before it becomes a binding legal obligation upon the parties involved. The text of the agreement drawn up by'O

See Yearbook of the ILC, 1966, vol. 11, p. 193.

" ICJ Reports, 1996, pp. 595,622; 115 ILR, p. 1 and see also Cameroon v. Nigeria, ICJReports,'2"

2002, para. 265.
Sinclair, Vienna Convention, p. 32. See also Satoiv's Guide to Diplomatic Practice, 5th edn,
London, 1979, p. 62.
Article 8.
See Yearbook ofthe ILC, 1966, vol. 11, p. 195.

"

T H E LAW O F T R E A T I E S

a17

the negotiators of the parties has to be adopted and article 9 provides that
adoption in international conferences takes place by the vote oftwo-thirdsof the states present and voting, unless by the same majority it is decided
to apply a different rule. This procedure follows basically the practices
recognised in the United Nations General ~ s s e m b l y ~ b ncarrieddout
in the majority of contemporary conferences. An increasing number ofconventions are now adopted and opened for signature by means of UN
General Assembly resolutions, such as the 1966 International Covenantson Human Rights and the 1984 Convention against Torture, using normal
Assembly voting procedures. Another significant point is the tendency inrecent conferences to operate by way of consensus so that there would
be no voting until all efforts to reach agreement by consensus have been
exhausted." In cases other than international conferences, adoption willtake place by the consent of all the states involved in drawing up the textof the agreement.37
The consent of the states parties to the treaty in question is a vital factor,
since states may (in the absence of a rule being also one of customary law)
be bound onlybytheir consent. Treaties are in this sense contracts between
states and if they do not receive the consent of the various states, theirprovisions will not be binding upon them. There are, however, a numberof ways in which a state may express its consent to an international agreement. It may be signalled, according to article 11, by signature, exchange
of instruments constituting a treaty, ratification, acceptance, approval oraccession. In addition, it may be accomplished by any other means, if soagreed.
Consent by signature 38
A state may regard itself as having given its consent to the text of the treaty
by signature in defined circumstances noted by article 12, that is, where thetreaty provides that signature shall have that effect, or where it is otherwise
See article 18 of the UN Charter.
See e.g. the Third UN Conference o n the Law of the Sea, Sinclair, Vienna Convention,p p 37-9. See also the UN Juridical Yearbook, 1974, 1711. 163-4, where the Director of
the General Legal Division, Office of Legal Affairs, declared that the term 'consensus' inUN organs, 'was used to describe a practice under which every effort is made to achieve
unanimous agreement; and if that could not be done, those dissenting from the generaltrend were prepared simply to make their position and reservations known and placed o n
the record'.
37 Article Y(1). This reflects the classic rule, Sinclair, Vienna Convention, p. 33.
See Yearbook of the ILC, 1966, vol. 11, p. 196.
j5

'6

''

818

I N T E R N A T I O N A L LAW

established that the negotiating states were agreed that signature shouldhave that effect, or where the intention of the state to give that effect tothe signature appears from the full powers of its representative or was
expressed during the negotiations.
Although consent by ratification is probably the most popular of themethods adopted in practice, consent by signature does retain some significance, especially in light of the fact that to insist upon ratification ineach case before a treaty becomes binding is likely to burden the administrative machinery of government and result in long delays. Accordingly,
provision is made for consent to be expressed by signature.39This would
be appropriate for the more routine and less politicised of treaties. The
act of signature is usually a formal affair. Often in the more important
treaties, the head of state will formally add his signature in an elaborate
ceremony. In multilateral conventions, a special closing session will beheld at which authorised representatives will sign the treaty. However,where the convention is subject to acceptance, approval or ratification,
signature will in principle be a formality and will mean no more than thatstate representatives have agreed upon an acceptable text, which will be
forwarded to their particular governments for the necessary decision as
to acceptance or reje~tion.~'However, signature has additional meaning
in that in such cases and pending ratification, acceptance or approval, astate must refrain from acts which would defeat the object and purpose of
the treaty until such time as its intentions with regard to the treaty havebeen made clear.41
Consent by exchange of instruments
Article 13 provides that the consent of states to be bound by a treaty
constituted by instruments exchanged between them may be expressed
See, for example, the Maroua Declaration, Caineroon v. Nigeria, ICJ Reports, 2002,para.
264.
40 The International Court has stated that, 'signed but unratified treaties may constitute an
accurate expression of the understanding of the parties at the time of signature: Qatar v.
Bahrain, ICJ Reports, 2001,para. 89.
41 Article 18.See Sinclair, Vienna Convention, pp. 42-4,and Certain German Interests in
Polisll Upper Silesia, PCIJ, Series A, No. 7, 1926,p. 30.See also H. Thirlway, 'The Law
and Procedure of the International Court of rustice 1960-1989 (Part Four)', 63 BYIL,
1992, pp. 1, 48 ff., and J. Klabbers, 'How to Defeat a Treaty's Object and Purpose
Pending Entry into Force: Towards Manifest Intent: 34 Vanderbilt Journal o f Transnational Law, 2001, p. 283. Note that having signed the Rome Statute for the International Criminal Court in December 2000,the US withdrew its signature in May 2002:
see http://~mw.state.go~~/r/pa/prs/~~s/2002/9968.htm.
j9

T H E LAW O F T R E A T I E S

g19by that exchange when the instruments declare that their exchange shallhave that effect or it is otherwise established that those states had agreed
that the exchange of instruments should have that effect.
Consent by r a t i f i ~ a t i o n ~ ~The device of ratification by the competent authorities of the state ishistorically well established and was originally devised to ensure that the
representative did not exceed his powers or instructions with regard to
the making of a particular agreement. Although ratification (or approval)
was originally a function of the sovereign, it has in modern times been
made subject to constitutional control.
The advantages ofwaiting until a state ratifies a treaty before it becomesa binding document are basically twofold, internal and external. In thelatter case, the delay between signature and ratification may often be advantageous in allowing extra time for consideration, once the negotiatingprocess has been completed. But it is the internal aspects that are the mostimportant, for they reflect the change in political atmosphere that has
occurred in the last 150 years and has led to a much greater participation
by a state's population in public affairs. By providing for ratification, thefeelings of public opinion have an opportunity to be expressed with thepossibility that a strong negative reaction may result in the state deciding
not to ratify the treaty under consideration.
The rules relating to ratification vary from country to country. In the
United Kingdom, although the power of ratification comes within the
prerogative of the Crown, it has become accepted that treaties involving any change in municipal law, or adding to the financial burdens of
the government or having an impact upon the private rights of British
subjects will be first submitted to Parliament and subsequently ratified.
There is, in fact, a procedure known as the Ponsonby Rule which provides
that all treaties subject to ratification are laid before Parliament at least
twenty-one days before the actual ratification takes place." Different considerations apply in the case of the United State~.~%owever,the questionof how a state effects ratification is a matter for internal law alone andoutside international law.
Defined in article 2 ( l ) b as 'the international a c t . . .whereby a state establishes on theinternational plane its consent to be bound by a treaty'. It is thus to be distinguished asa concept from ratification in the internal constitutional sense, although clearly there is
an important link: see Yearbook of the ILC, 1966, vol. 11, pp. 197-8. See also Brownlie,
Principles, p. 611.
4' See above, chapter 4, p. 139.
"id., p. 146.
42

"

820

I N T E R N A T I O N A L LAW

Article 14 of the 1969 Vienna Convention notes that ratification will
express a state's consent to be bound by a treaty where the treaty soprovides; it is otherwise established that the negotiating states were agreed
that ratification should be required; the representative of the state hassigned the treaty subject to ratification or the intention of the state tosign the treaty subject to ratification appears from the full powers of its
representative or was expressed during negotiations.
Within this framework, there is a controversy as to which treaties need
to be ratified. Some writers maintain that ratification is only necessary if
it is clearly contemplated by the parties to the treaty,45and this approachhas been adopted by the United ~ i n ~ d o On
m . the~ ~other hand, it has
been suggested that ratification should be required unless the treaty clearly
reveals a contrary intention.47The United States, in general, will dispensewith ratification only in the case of executive agreement~.~%atificationin the case of bilateral treaties is usually accomplished by exchanging therequisite instruments, but in the case of multilateral treaties the usual
procedure is for one party to collect the ratifications of all states, keeping
all parties informed of the situation. It is becoming more accepted thatin such instances, the Secretary-General of the United Nations will act as
the depositary for ratifications. In some cases, signatures to treaties may
be declared subject to 'acceptance' or 'approval'. The terms, as noted inarticles 11 and 14(2),are very similar to ratification and similar provisions
apply. Such variation in terminology is not of any real significance andonly refers to a somewhat simpler form of ratification.
Consent by accession49
This is the normal method by which a state becomes a party to a treaty it
has not signed either because the treaty provides that signature is limited
to certain states, and it is not such a state, or because a particular deadline
for signature has passed. Article 15 notes that consent by accession ispossible where the treaty so provides, or the negotiating states were agreed
or subsequently agree that consent by accession could occur in the case
Treaties Need Ratification?', 15 BYIL, 1934, p. 129, andO'Connell, International Law, p. 222. See also H. Blix, 'The Requirement of Ratification',
30 BYIL, 1953,p. 380.
46 See e.g. Sinclair, Vienna Convention, p. 40, and O'Connell, International Law, p. 222.
See e.g. McNair, Law of Treaties, p. 133.
48 O'Connell, International Laiv, p. 222. See also DUSPIL, 1974, pp. 216-17 and ibid., 1979,
p p 678 ff.
4"eeYearbook of the ILC, 1966, vol. 11, p. 199.
45 See e.g. G. Fitzmaurice, 'Do"

T H E LAW O F T R E A T I E S

821of the state in question. Important multilateral treaties often declare thatstates or, in certain situations, other specific entities may accede to thetreaty at a later date, that is after the date after which it is possible to signify
acceptance by ~ignature.~'Reservations to treaties5'
A reservation is defined in article 2 of the Convention as:a unilateral statement, however phrased or named, made by a state, whensigning, ratifying, accepting, approving or acceding to a treaty, whereby it
purports to exclude or to modify the legal effect of certain provisions of thetreaty in their application to that ~ t a t e . ' ~Where a state is satisfied with most of the terms of a treaty, but is unhappy about particular provisions, it may, in certain circumstances, wish
to refuse to accept or be bound by such provisions, while consenting to
the rest of the agreement. By the device of excluding certain provisions,states may agree to be bound by a treaty which otherwise they might
See e.g, articles 26 and 28 of the Convention on the Territorial Sea and the Contiguous
Zone.
j1 See e.g. C. Redgwell, 'Universality or Integrity? Some Reflections on Reservations to General Multilateral Treaties', 64 BYIL, 1993, p. 245; G. Gaja, 'Unruly Treaty Reservations: Le
Droitlnternational a I'Hetlre desa Codifications, Milan, 1987, p. 313; J. K. Gamble, 'Reservations to Multilateral Treaties: A 1MacroscopicView of State Practice: 74 AJIL, 1980, p. 372;
G. Fitzmaurice, 'Reservations to Multilateral Treaties: 2 ICLQ, 1953, p. 1; D. It'. Bowett,'Reservations to Non-restricted Multilateral Treaties',48 BYIL, 1976-7, p. 67; P. H. Imbert,
Les RbenJesaux TraitLs Mtlltilateraux, Paris, 1979; Sinclair, Vienna Convention, chapter 3;
D. I\'. Greig, 'Reser~~ations:
Equity as a Balancing Force?: 16 Australian YIL, 1995, p. 21;
O'Connell, International Law, pp. 229 ff.; J. M. R~tda,'Reservations to Treaties: 146 HR,
1975, p. 95; G. Horn, Reservatioizs and Interpretative Declaratioizs to ~MtlltilateralTreaties,
Leiden, 1988; Oppenheirn's International Law, p. 1241, and Nguyen Quoc Dinh et al., Droit
International Public, p. 178. See also A. Pellet, Reports on the Law and Practice Relating toReservations to Treaties, e.g. First Report, Report of the International Law Commission,
1995, Al50110, pp. 240 ff.; and subsequent reports, e.g. 2001, Al56110, p. 437 and 2002,
Al57110, p. 24. These reports are producing draft guidelines for a 'Guide to Practice: anumber of which have been adopted by the ILC.
j2 Article 2 ( l ) d of the Vienna Convention on the Law of Treaties between States and International Organisations, 1986 provides that a reservation means 'a unilateral statement,
however phrased or named, made by a state or by an international organisation when signing, ratifying, formally confirming, accepting, approving or acceding to a treaty, whereby
it purports to exclude or to modify the legal effect of certain provisions of the treaty intheir application to that state or to that orgailisatioi~:See also the definition contained indraft guideline 1.1 of the ILC Guide to Practice, Report of the ILC on its 54th Session,
2002, p. 50.
jn

822

I N T E R N A T I O N A L LAW

reject entirely. This may have beneficial results in the cases of multilateral conventions, by inducing as many states as possible to adhere to the
proposed treaty. To some extent it is a means of encouraging harmony
amongst states of widely differing social, economic and political systems,by concentrating upon agreed, basic issues and accepting disagreement
on certain other matters.
The capacity of a state to make reservations to an international treaty
illustrates the principle of sovereignty of states, whereby a state may refuse
its consent to particular provisions so that they do not become binding
upon it. On the other hand, of course, to permit a treaty to become honeycombed with reservations by a series of countries could well jeopardise thewhole exercise. It could seriously dislocate the whole purpose of the agreement and lead to some complicated inter-relationships amongst states.
This problem does not arise in the case ofbilateral treaties, since a reservation by one party to a proposed term of the agreement would necessitatea renegotiation.j3 An agreement between two parties cannot exist where
one party refuses to accept some of the provisions of the treaty.54This is
not the case with respect to multilateral treaties, and here it is possiblefor individual states to dissent from particular provisions, by announcing
their intention either to omit them altogether, or understand them in acertain way. Accordingly, the effect of a reservation is simply to exclude
the treaty provision to which the reservation has been made from theterms of the treaty in force between the parties.j5
Reservations must be distinguished from other statements made withregard to a treaty that are not intended to have the legal effect of a reservation, such as understandings, political statements or interpretative declarations. In the latter instance, no binding consequence is intended with regard to the treaty in question. What is involved is a political manifestation
for primarily internal effect that is not binding upon the other parties.j6
See the statement of British practice to this effect, UKMIL, 68 BYIL, 1997, p. 482.
See Yearbook ofthe ILC, 1966, vol. 11, p. 203. See also draft guideline 1.5.1 of the ILC Guide
to Practice, Report of the ILC on its 54th Session, 2002, p. 55.
See e.g. Legality of the Use of Force (Yugoslailia v. U S A ) , Provisional Measures Order, ICJ
Reports, 1999, pp. 916, 924 and the Fisheries Jtlrisdictioil (Spain T,. Canada) case, ICJ
Reports, 1998, p. 432.
i6 See e.g. the Tevneltasch case, 5 European Human Rights Reports, 1983, p. 417 on the difference between reservations and interpretative declarations generally and in the context
of the European Human Rights Convention. Cf. the Ette case, European Court of Human
Rights, Series A, No. 117. See, for examples of UK practice, UKMIL, 68 BYIL, 1997, p. 483.
See also L. D. M. Nelson, 'Declarations, Statements and "Disguised Reservations" withrespect to the Convention on the Law of the Sea', 50 ICLQ, 2001, p. 767; R. Sapienza, 'Les
Declarations Interpretatives Unilaterales et 1'Interpretation des Traites', 103 RGDIP, 1999,

j3

'4

"

T H E LAW O F T R E A T I E S

a23

A distinction has been drawn between 'mere' interpretative declarations
and 'qualified' interpretative declaration^,^^ with the latter category capable in certain circumstances of constituting reservations." Another wayof describing this is to draw a distinction between 'simple interpretative
declarations' and 'conditional interpretative declarations'.j9 The latter is
described in the ILC Guide to Practice as referring to a situation where
the state subjects its consent to be bound by the treaty to a specific interpretation of the treaty, or specific provisions of it.60
In the Anglo-French Continental Shelf~ase,~'the Arbitral Tribunal emphasised that French reservations to article 6 of the Geneva Convention
on the Continental Shelf, 1958, challenged by the UK, had to be construed in accordance with the natural meaning of their terms.62The UK
contended that the third French reservation to article 6 (which concerned
the non-applicability of the principle of equidistance in areas of 'special
circumstances' as defined by the French government, naming specificallyinter alia the Bay of Granville) was in reality only an interpretative declaration. The Tribunal, however, held that although- this reservation contained elements of interpretation, it also constituted a specific condition
imposed by France on its acceptance of the article 6 delimitation regime.
This went beyond mere interpretation as it made the application of that
regime dependent upon acceptance by other states of France's designation of the named areas as involving 'special circumstances'. It therefore
had the purpose of seeking to exclude or modify the legal effect of certain
treaty provisions with regard to their application by the reserving state
and thus constituted a r e ~ e r v a t i o n . ~ ~p. 601, and P. H. Imbert, 'Reservations to the European Conliention on Human Rights before the Strasbourg Commission', 33 ICLQ, 1984, p. 558 and UAT Juridical Yearbook, 1976,
pp. 220-1. Draft guideline 1.2 of the ILC Guide to Practice provides that an interpretative
declaration means 'a unilateral statement, however phrased or named, made by a state oran international organisation whereby that state or international organisation purports tospecify or clarify the meaning or scope attributed by the declarant to a treaty or to certainof its provisions: Report of the ILC on its 54th Session, 2002, p. 52.
i7 See D. McRae, 'The Legal Effect of Interpretative Declarations', 49 BYIL, 1978, p. 155. See
also the Temeltasch case, pp. 432-3 and the First Pellet Report, pp. 58 ff.
i"~~ite what the effect might be of the former is unclear: see e.g. the First Pellet Report,
p. 60.
i9 See e.g. Nelson, 'Declarations', p. 776.
60 Draft guideline 1.2.1, Report of the ILC on its 54th Session, 2002, p. 52.
6' Cmnd 7438 (1979); 54 ILR, p. 6.
62 Cmnd 7438, pp. 41-2; 54 ILR, pp. 48-9. It was also stressed that reservations have tobe appreciated in the light of the law in force at the time that the reservations (and any
objections to them) are made, Cmnd 7438, p. 35; 54 ILR, p. 42.
6' Cmnd 7438, p. 43; 54 ILR, p. 50.

s24

I N T E R N A T I O N A L LAW

In the Belilos case6"n 1988, the European Court of Human Rights
considered the effect of one particular interpretative declaration madeby Switzerland upon ratifi~ation.~'
The Court held that one had to lookbehind the title given to the declaration in question and to seek to determine its substantive content. It was necessary to ascertain the original
intention ofthose drafting the declaration and thus recourse to the travaux
prepuratoireswas required. In the light of these, the Court felt that Switzerland had indeed intended to 'avoid the consequences which a broad viewof the right of access to the courts.. .would have for the system of public administration and of justice in the cantons and consequently.. . put
forward the declaration as qualifying [its] consent to be bound by theC ~ n v e n t i o n ' .Having~~
so decided, the Court held that the declarationin question, taking effect as a reservation, did not in fact comply witharticle 64 of the Convention, which prohibited reservations of a generalcharacter6' and required a brief statement of the law in force necessitating
the r e s e r ~ a t i o n Accordingly,.~~
the declaration was invalid. It is hard to
escape the conclusion that the Court has accepted a test favourable tostates as to the situations under which a declaration may be regarded asa reservation, only to emphasise the requirements of article 64 concerning the validity of reservations to the European Convention. One should
therefore be rather cautious before applying the easier test regarding interpretative declarations generally. Nevertheless, there remains a problem
of states making interpretative declarations that seek to act as reservations
to treaties that prohibit reservations. In such situations, it is likely thatthe effect of such declarations would be ineffective as against other parties who would therefore be entitled to regard the treaty as in force fully
between all the parties, taking no account of the d e c l a r a t i ~ n . ~ ~64 European Court of Hunlan Rights, Series A, No. 132. See also S. Marks, 'Reservations

Unhinged: The Belilos Case Before the European Court of Human Rights: 39 ICLQ, 1990,
p. 300.
6 3 ~ v i t z e r l a n madedin total two interpretative declarations and two reservations upon ratification of the European Convention on Human Rights. The declaration in question
concerned article 6, paragraph 1 of the Convention dealing with the right to fair trial andprovided that Switzerland considered that that right was intended solely to ensure ultimate control by the judiciary over the acts or decisions ofthe public authorities. The issue
concerned the right of appeal from the Lausanne Police Board to the Criminal Cassation
Division of the Vaud Cantonal Court, which could not in fact hear fresh argument, receive
witnesses or give a new ruling on the merits, and whether the declaration prevented theapplicant from relying oil article 6 in the circumstailces.
66 At pp. 18-19.
67 Ibid.,pp. 20-1.
Ibid.,pp. 21-2.
e.g. Nelson, 'Declarations: p. 781. See also below, p. 829.

T H E LAW O F T R E A T I E S

825

In order to determine whether a unilateral statement made constitutes
a reservation or an interpretative declaration, the statement will have to
be interpreted in good faith in accordance with the ordinary meaning to
be given to its terms and within the context of the treaty in question. The
intention of the state making the statement at that time will also need tobe con~idered.~'In the special case of a bilateral treaty, an interpretative
declaration made by one party which is accepted by the other party will
constitute an authoritative interpretation of that treaty."
The generalrule that became established was that reservations could
only be made with the consent of all the other states involved in the process.
This was to preserve as much unity of approach as possible to ensure thesuccess of an international agreement and to minimise deviations fromthe text of the treaty. This reflected the contractual view of the nature of atreaty,72and the League of Nations supported this concept." The effect of
this was that a state wishing to make a reservation had to obtain the consent
of all the other parties to the treaty. If this was not possible, that state
could either become a party to the original treaty (minus the reservation,of course) or not become a party at all. However, this restrictive approachto reservations was not accepted by the International Court of Justice in
the Reservations to the Genocide Convention case.'4 This was an advisory
opinion by the Court, requested by the General Assembly after some stateshadmade reservations to the 1948 Genocide Convention, which contained
no clause permitting such reservations, and a number of objections weremade.
The Court held that:a state which has made and maintained a reservation which has been objected to by one or more parties to the Convention but not by others, can be
regarded as being a party to the Convention ifthe reservation is compatible
with the object and purpose of the Convention.

Compatibility, in the Court's opinion, could be decided by states individually since it was noted that:
70 See draft guideline 1.3.1 of the ILC Guide to Practice, Report ofthe ILC on its 54th Session,

2002,p. 53. Draft guideline 1.3.2 also states that the phrasing or name used provides anindication of the purported legal effect, ibid.
Ibid., p. 56.
72 See Sinclair, Vienna Convention, pp. 54-5, and R~tda,'Reservations', p. 112. See also
Redgwell, 'Universality or Integrity', p. 246.
7' Report of the Co~nrnitteeof Experts for the Progressive Codification of International Law,
8 LNOJ, pp. 880-1 (1927).
74 ICJ Reports, 1951, p, 15; 18 ILR, p. 364.

"

826

I N T E R N A T I O N A L LAW

if a party to the Convention objects to a reservation which it considers incompatible with the object and purpose of the Convention, it
can. . . consider that the reserving state is not a party to the Convention."

The Court did emphasise the principle of the integrity of a convention, but pointed to a variety of special circumstances with regard to
the Genocide Convention in question, which called for a more flexible
interpretation of the principle. These circumstances included the universal character of the UN under whose auspices the Convention had
been concluded; the extensive participation envisaged under the Convention; the fact that the Convention had been the product of a seriesof majority votes; the fact that the principles underlying the Convention
were general principles already binding upon states; that the Convention
was clearly intended by the UN and the parties to be definitely universal in scope and that it had been adopted for a purely humanitarian
purpose so that state parties did not have interests of their own but acommon interest. All these factors militated for a flexible approach in thiscase.
The Court's approach, although having some potential disadvant a g e ~ , 'was~ in keeping with the move to increase the acceptability andscope of treaties and with the trend in international organisations awayfrom the unanimity rule in decision-making and towards majority voting7' The 1969 Convention on the Law of Treaties accepted the Court's
views.78
By article 19, reservations may be made when signing, ratifying, accepting, approving or acceding to a treaty, but they cannot be made where
the reservation is prohibited by the treaty, or where the treaty provides
that only
reservations may be made and these do not include the. specified
reservation in question, or where the reservation is not compatible withthe object and purpose of the treaty.
In the instances where a reservation is possible, the traditional rule
requiring acceptance by all parties will apply where, by article 20(2), 'itappears 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
see e.g. Fitzmaurice, 'Reservations:" ICJ Reports, 1951, pp. 29-30.
-/ I Although the International Law Commission was initially critical, it later changed its mind:
see Yearbook of theILC, 1951, vol. 11, pp. 130-1, cf. ibid., 1962, vol. 11, pp. 62-5 and 178-9.
Note also that the UN General Assembly in 1959 resolved that the Secretary-General asa depositary was to apply the Court's approach to all conveiltions concluded under UN
auspices unless they contained provisions to the contrary.
See Redgcvell, 'Universality or Integrity', pp. 253 ff.

'*

T H E LAW O F T R E A T I E S

g27

between all the parties is an essential condition of the consent of each one
to be bound by the treaty'.
Article 20(4) then outlines the general rules to be followed with regard
to treaties not within article 20(2) and not constituent instruments ofinternational organisations. These are that:(a) acceptance by another contracting state of a reservation constitutes thereserving state a party to the treaty in relation to that other state if or
when the treaty is in force for those states;(b) an objection by another contracting state to a reservation does notpreclude the entry into force ofthe treaty as between the objecting andreserving states unless a contrary intention is definitely expressed by
the objecting state;(c) an act expressing a state's consent to be bound by the treaty and containing a reservation is effective as soon as at least one other contracting
state has accepted the reservation.

The effect of reservations is outlined in article 21. This declares thata reservation established with regard to another party modifies, for the
reserving state in its relations with the other party, the provisions of thetreaty to which the reservation relates, to the extent of the reservation.
The other party is similarly affected in its relations with the reserving state.
An example of this was provided by the Libyan reservation to the 1961
Vienna Convention on Diplomatic Relations with regard to the diplomaticbag, permitting Libya to search the bag with the consent ofthe state whose
bag it was, and insist that it be returned to its state of origin. Since the UK
did not object to the reservation, it could have acted similarly with regard
to Libya's diplomatic bags.79However, the reservation does not modify
the provisions of the treaty for the other parties to the treaty as between
themselves.
Article 21(3) provides that where a state objects to a reservation, but
not to the entry into force of the treaty between itself and the reserving
state, then 'the provisions to which the reservation relates do not apply
as between the two states to the extent of the reservation'. This provision
was applied by the arbitration tribunal in the Anglo-French continental
Shelfcase, where it was noted that:the combined effect of the French reservations and their rejection by theUnited Kingdom is neither to render article 6 [of the Geneva Conventioilon the Coiltineiltal Shelf, 19581 inapplicable in toto, as the French Republic
79 See Foreign Affairs Committee, Report oil theAbuseofDiploi~~uticImmunities
aildPrivileges,

1984, pp. 23-4, and above, chapter 13, p. 677.

828

I N T E R N A T I O N A L LAW

contends, nor to render it applicable in toto, as the United Kingdom yrimarily contends. It is to render the article inapplicable as between the hvo
countries t o the extent of the reservation^.'^A number of important issues, however, remain unresolved. In particular, it is unclear what effect an impermissible reservation has." Oneschool of thought takes the view that such reservations are invalid,82another that the validity of any reservation is dependent upon acceptance byother states.83While there is a presumption in favour of the permissibility of reservations, this may be displaced if the reservation is prohibited
explicitly or implicitly by the treaty or it is contrary to the object andpurpose of the treaty.84 A further problem is to determine when these
conditions under which reservations may be deemed to be impermissible have been met. This is especially difficult where it is contended thatthe object and purpose of a treaty have been offended. The question is
also raised as to the authority able to make such a determination. At
the moment, unless the particular treaty otherwise provides,85whether areservation is impermissible is a determination to be made by states parties to the treaty themselves. In other words, it is a subjective applicationof objective criteria.s6 Once the impermissibility of a reservation has been
demonstrated, there are two fundamental possibilities. Either the treaty
provision to which the reservation has been attached applies in full to theCmnd 7438 (1979), p. 45; 54 ILR, p. 52. See also A. E. Boyle, 'The Law of Treaties and theAnglo-French Continental Shelf Arbitration', 29 ICLQ, 1980, p. 498, and Sinclair, Vzenna
Convention, pp. 70-6.
See e.g. J. K. Koh, 'Reservations to Multilateral Treaties: H o ~ vInternational Legal Doctrine
Reflects JVorld Vision', 23 Harvard Internatior~alLaw Journal, 1982, p. 71, and Redgwell,'Universality or Integrity', p. 263. See also above, p. 823, concerning interpretative declarations being used as 'disguised' reservations where no reservations are permitted under
the treaty in question.
" See e.g. Bowett, 'Reservations', pp. 77 and 84. Impermissible reservations are divided into
those that may be severed from ratification of or accession to the convention in question
and those that are contrary to the object and purpose of the treaty. In the latter case,both the reservation and the whole acceptance of the treaty by the reserving state are
to be regarded as nullities. This question of permissibility is the preliminary issue, thequestion of opposabilit~or the reaction of other states, is a secondary issue, presupposing
the permissibility of the reservation, ibid., p. 88. See also Oppenkeim's International Latv,
p. 1247, note 1.
See e.g. Ruda, 'Reservations', 17. 190.
See the First Pellet Report, p. 50.
" Note e.g. that article 20(2) ofthe International Convention on the Elimination ofAll Formsof Racial Discrimination, 1965 provides that a reservation will be regarded as contrary
to the object and purpose of the treaty if at least two-thirds of the states parties to theconvention object to the reservation.
86 See e.g. Ago, Yearbook of the ILC, 1965, vol. I, p. 161.

''''

T H E LAW O F T R E A T I E S

g29

state that made the impermissible reservation or the consent of the state
to the treaty as a whole is vitiated so that the state is no longer a party
to the treaty. A further question is whether the other parties to the treaty
may accept and thus legitimate an impermissible reservation or whether
a determination of impermissibility is conclusive. All that can be said isthat state practice on the whole is somewhat inconclusive.
There is a trend with regard to human rights treaties to regard impermissible reservations as severing that reservation so that the provision inquestion applies in full to the reserving state.87In the Belilos case,88theEuropean Court of Human Rights laid particular emphasis upon Switzerland's commitment to the European Convention on Human ~ i ~ h t sso, ' ~that the effect of defining the Swiss declaration as a reservation which wasthen held to be invalid was that Switzerland was bound by the provision(article 6) in full. This view was reaffirmed in the Loizidou (Preliminary
Objections) case.90The Court analysed the validity of the territorial restrictions attached to Turkey's declarations under former articles 25 and46 recognising the competence of the Commission and the Court" andheld that they were impermissible under the terms of the Convention.
The Court then concluded that the effect of this in the light of the special
nature of the Convention as a human rights treaty was that the reservations were severable so that Turkey's acceptance of the jurisdiction of theCommission and the Court remained in place, unrestricted by the termsof the invalid limitations attached to the declaration^.^^The UN Human Rights Committee in its controversial General
Comment 24/52 of 2 November 1 9 9 4 ~emphasised~
the special natureof human rights treaties and expressed its belief that the provisions of theVienna Convention on the Law of Treaties were 'inappropriate to address
87 See e.g. Y. Tyagi, 'The Conflict ofLaw and Policy o n Reservations to Human Rights Treaties',

Modern Treaty Law, p. 119; Hurnan Rights as General Norrns
71 BYIL, 2000, p. 181; ALIS~,
and a State's Right to Opt Out: Reser1,ations and Objections to Htnnan Rights Conventions(ed. J. P. Gardner), London, 1997, and K. Korkelia, 'New Challenges to the Regime ofReservations under the International Covenant o n Civil and Political Rights', 13 EJIL,
2002, p. 437. See also the Second Pellet Report, 1996, AlCN.414777.Add.l.
European Court of Human Rights, Series A, No. 132. See also above, p. 824.
" The Court noted that 'it is beyond doubt that Switzerland is, and regards itself as, boundby the Convention irrespective of the validity of the declaration', ibid., p. 22.
European Court of Human Rights, Series A, No. 310 (1995); 103 ILR, p. 621.
" These were held to constitute 'a disguised reservation', ECHR, Series A, No. 310, p. 22.
" Ibid., pp. 22-9.
CCPRlC/2l/Rev.l/Add. 6. See also 15 Htlman Rights Laiv Journal, 1994, p. 464, and
M. Nowak, 'The Activities of the UN Human Rights Committee: Developments from
1 Allgust 1992 to 31 Tuly 1995: 16 Human Rights Laiv Journal, 1995, pp. 377, 380.

"

830

I N T E R N A T I O N A L LAW

the problems of reservations to human rights treaties'. The Committee
took the view that provisions contained in the International Covenant
on Civil and Political Rights, 1966, which represented customary international law could not be the subject of reservations, while in the caseof reservations to non-derogable provisions not falling into this category,states had 'a heavy onus' to justify such reservations. The Committee alsoemphasised that the effect of an unacceptable reservation would normallybe that the provision operated in full with regard to the party making sucha reservation and not that the Covenant would not be in force at all forsuch a state party. The Committee also regarded itself as the onlybody able
to determine whether a specific reservation was or was not compatible
with the object and purpose of the r oven ant.'^
The controversy with regard to this included the issue as to the powers of the Committee and other such monitoring organs as distinct fromcourts which under their constituent treaties had the competence to interpret the same in a binding manner.95The International Law Commission
adopted Preliminary Conclusions on Reservations to Normative Multilateral Treaties Including Human Rights Treaties in 1997, in which it reaffirmed the applicability of the Vienna Convention on the Law of Treaties
reservations regime to all treaties, including human rights treaties. The
ILC accepted that human rights monitoring bodies were competent tocomment and express recommendations upon inter alia the admissibility of reservations, but declared that this did not affect 'the traditional
modalities of control' by contracting parties in accordance with the two
Vienna Conventions of 1969 and 1986, nor did it mean that such bodies could exceed the powers given to them for the performance of theirgeneral monitoring role. It was particularly emphasised that 'it is the reserving state that has the responsibility of taking action' in the event of" See the critical observations made by the governments of the US and the UK with regard to

this General Comment, 16 Hurnari Rights Laiu Journal, 1995, pp. 422 ff. Note in particular
the US view that 'reservations contained in the United States instruments of ratification
are integral parts of its consent to be bound by the Covenant and are not severable. If it
were to be determined that any one or more of them were ineffective, the ratification asa whole could thereby be nullified: ihid., p. 423. The UK government took the view thatwhile 'severability of a kind may ~7elloffer a solution in appropriate cases', severability
would involve excising both the reservation and the parts of the treaty to which it related,
ibid., p. 426. It was noted that a state which sought to ratify a human rights treaty subject
to a reservation 'which is fundamentally incompatible with participation in the treaty
regime' could not be regarded as a party to that treaty, ibid.
95 See also e.g. C. Redgwell, 'Reservations to Treaties and Human Rights General Comment
No. 24 (52): 46 ICLQ, 1997, p. 390.

T H E LAW O F T R E A T I E S

83l

inadmissibility and such state could modify or withdraw the reservation
or withdraw from the treaty.96There is, however, apart from this controversy, the question as to the large number of reservations to humanrights treaties, many of which have been criticised as being contrary to
the object and purpose of the treatie~.~'In general, reservations are deemed to have been accepted by states thathave raised no objections to them at the end of a period of twelve months
after notification of the reservation, or by the date on which consent to bebound by the treaty was expressed, whichever is the later.98Reservations
must be in writing and communicated to the contracting states and otherstates entitled to become parties to the treaty, as must acceptances of, andobjections to, reservations.
Most multilateral conventions today will in fact specifically declaretheir position as regards reservations. Some, however, for example the
Geneva Convention on the High Seas, 1958, make no mention at all ofreservations, while others may specify that reservations are possible withregard to certain provisions only.99Still others may prohibit altogether
any reservations.loO

Entry into force of treaties
Basically treaties will become operative when and how the negotiatingstates decide, but in the absence of any provision or agreement regarding
this, a treaty will enter into force as soon as consent to be bound by the
9"eportof the ILC on its 49th Session, Al52110, pp. 126-7.
See e.g. the Convention on the Elimination of Discrimination Against T470men,1979,
General Recommendations No. 4 (1987), No. 20 (1992) and No. 21 (1994) of the Committee on the Elimination of Discrimination Against Women. See generally B. Clark, 'The
T7iennaConventions Reservations Regime and the Convention on Discrimination against
Women', 85 AJIL, 1991, p. 281, and R. J. Cook, 'Reservations to the Convention on the
Elimination of All Forms of Discrimination against Women: 30 Va. JIL, 1990, p. 643. See
also Council of Europe Parliamentary Assembly Recommendation 1223 (1993) on Reservations Made by Member States to Council of Europe Conventions, and 11: A. Schabas,'Reservations to Human Rights Treaties: Time for Innovation and Reform', 32 Canadian
YIL, 1994, p. 39.
" Article 20(5) of the Vienna Convention on the Law of Treaties. See the Inter-American
Court of Human Rights, Advisory Opinion on The Effect of Reservatiorls on the Erltry into
Forcc of the American Corlvention on Human Rights, 22 ILM, 1983, p. 37; 67 ILR, p. 559.
" E.g. the 1958 Genera Convention on the Continental Shelf, article 12(1).See also above,
p. 824, regarding article 64 of the European Convention on Human Rights, 1950.
loo See e.g. article 37 of the Convention on Damage Caused by Foreign Aircraft to Third
Parties on the Surface, 1952.

''

832

I N T E R N A T I O N A L LAW

treaty has been established for all the negotiating states.lO' In many cases,
treaties will specify that they will come into effect upon a certain dateor after a determined period following the last ratification. It is usual
where multilateral conventions are involved to provide for entry into
force upon ratification by a fixed number of states, since otherwise large
multilateral treaties may be prejudiced. The Geneva Convention on theHigh Seas, 1958, for example, provides for entry into force on the thirtiethday following the deposit of the twenty-second instrument of ratification
with the United Nations Secretary-General, while the Convention on the
Law of Treaties, 1969 itself came into effect thirty days after the depositof the thirty-fifth ratification and the Rome Statute for the International
Criminal Court required sixty ratifications. Of course, even though thenecessary number of ratifications has been received for the treaty to comeinto operation, only those states that have actually ratified the treaty will
be bound. It will not bind those that have merely signed it, unless ofcourse, signature is in the particular circumstances regarded as sufficient
to express the consent of the state to be bound.
Article 80 of the 1969 Convention (following article 102 of the United
Nations Charter) provides that after their entry into force, treaties
should be transmitted to the United Nations Secretariat for registrationand publication. These provisions are intended to end the practice ofsecret treaties, which was regarded as contributing to the outbreak of
the First World War, as well as enabling the United Nations Treaty
Series, which contains all registered treaties, to be as comprehensive as
possible.lo2

The application of treaties''"Once treaties enter into force, a number of questions can arise as to theway in which they apply in particular situations. In the absence of contrary
intention, the treatywillnot operate retroactively so that its provisions will
not bind a party as regards any facts, acts or situations prior to that state's
Article 24. See Sinclair, Vienna Convention, pp. 44-7. See also Thirlway, 'Law and Procedure (Part four)', pp. 32 ff., and Aust, Modern Treaty Law, chapter 9.
lo' Article 102 of the UN Charter also provides that states may not invoke an unregisteredtreaty before ally UN organ. See also above, p. 813, and http://untreaty.un.org/.
lo' See e.g. Nguyen Quoc Dinh et al., Droit International Ptlblic, p. 217, and Oppenheirn's
International Law, p. 1248.
lo'T H E LAW O F T R E A T I E S

833

acceptance of the t r e a t y . l O ~ n l e sasdifferent intention appears from thetreaty or is otherwise established, article 29 provides that a treaty is binding
upon each party in respect of its entire territory. This is the general rule,
but it is possible for a state to stipulate that an international agreement will
apply onlyto part ofits territory. In the past, so-called 'colonial application
clauses' were included in some treaties by the European colonial powers,
which declared whether or not the terms of the particular agreement
would extend to the various c ~ l o n i e s . ' ~ "With regard to the problem of successive treaties on the same subject
matter, article 30 provides that:
1. Subject to article 103 of the Charter of the United Nations,'""herights and obligations of states parties to successive treaties relating to thesame subject-matter shall be determined in accordance with the following
paragraphs.
2. When a treaty specifies that it is subject to, or that it is not to beconsidered as incompatible with, an earlier or later treaty, the provisionsof that other treaty prevail.
3. When all the parties to the earlier treaty are parties also to the later
treaty but the earlier treaty is not terrninated or suspended in operation
under article 59,'" the earlier treaty applies only to the extent that its
provisions are compatible with those of the later treaty.
4. When the parties to the later treaty d o not include all the parties tothe earlier one:(a) as between states parties to both treaties the same rule applies as inparagraph 3;

Article 28. See Yearbook oftheILC, 1966,vol.I1,pp.212-13 andthe ~MavrommatisPalestine
Corlcessions case, PCIJ, Series A, No. 2, 1924. Note article 4 of the Convention, which
provides that, without prejudice to the application of custolnary law, the Convention will
apply only to treaties concluded by states after the entry into force of the Convention ~vith
regard to such states.
lo5 See Sinclair, Vienna Convention, pp. 87-92. See also e.g. article 63 of the European Convention on Human Rights, 1950. Practice would appear to suggest that, in the absence ofevidence to the contrary, a treaty would under customary la~vapply to all the territory ofa party, including colonies: see e.g. McNair, Law of Treaties, pp. 116-17.
lo6 This stipulates that in the event of a conflict between the obligations of a member state of
the UN under the Charter and their obligations under any other international agreement,
the former shall prevail. See also the Lockerbie (Libya v. L'K; Libya v. US)case, ICJ Reports,
1992, pp. 3, 15; 94 ILR, pp. 478,498.
lo' This deals with termination or suspension of a treaty by a later treaty: see further below,
p. 845.
'04

834

I N T E R N A T I O N A L LAW(h) as between a state party to both treaties and a state party to only oneof the treaties, the treaty to which both states are parties governs theirmutual rights and obligations.
5. Paragraph 4 is without prejudice to article 41,'08 or to any questionof the termination or suspension of the operation of a treaty under article 60'09 or to any question of responsibility which may arise for a statefrom the conclusion or application of a treaty, the provisions of which
are incompatible with its obligations towards another state under anothertreaty.

The problem raised by successive treaties is becoming a serious one withthe growth in the number of states and the increasing number of treaties
entered into, and the added complication of enhanced activity at theregional l e ~ e l . "The~ rules laid down in article 30 provide a general guideand in many cases the problem will be resolved by the parties themselves
expressly.

Third states
A point of considerable interest with regard to the creation of binding
rules of law for the international comn~unitycentres on the applicationand effects of treaties upon third states, i.e. states which are not parties tothe treaty in question.'" The general rule is that international agreements
bind only the parties to them. The reasons for this rule can be found in
the fundamental principles of the sovereignty and independence of states,
which posit that states must consent to rules before they can be boundby them. This, of course, is a general proposition and is not necessarily
true in all cases. However, it does remain as a basic line of approach ininternational law. Article 34 of the Convention echoes the general rule inspecifying that 'a treaty does not create either obligations or rights for athird state without its consent'.'12
log This deals with agreements to modify multilateral treaties between certain of the parties

only: see further below, p. 837.
lo9 This deals with material breach of a treaty: see further below, p. 853.

See Sinclair, Vienna Corzvention, pp. 93-8, and h s t , Modern Treaty Law, chapter 12. See
also McNair, Law of Treaties, pp. 219 ff.
"' See e.g. Sinclair, Vienna Convention, pp. 98-106; Aust, Modern Treaty Law, chapter 14,
and Oppenheim's International Latv, p. 1260. The rule is sometimes referred to by the
maxim pacta tertiis nec nocent nec prosunt. See also Thirlway, 'Law and Procedure (PartOne)', p. 63.
' I 2 See also below, chapter 16, p. 871, on succession of states in respect of treaties.
"OT H E LAW O F T R E A T I E S

835

It is quite clear that a treaty cannot impose obligations upon third states
and this was emphasised by the International Law Commission during its
deliberations prior to the Vienna Conferences and Convention.ll3 Thereis, however, one major exception to this and that is where the provisions of
the treaty in question have entered into customary law.'I4 In such a case,all states would be bound, regardless of whether they had been parties tothe original treaty or not. One example of this would be the laws relating
to warfare adopted by the Hague Conventions earlier this century and
now regarded as part of customary international law.'15
This point arises with regard to article 2(6) of the United Nations
Charter which states that:the organisation shall ensure that states which are not members of theUnited Nations act in accordance with these principles so far as may benecessary for the maintenance of international peace and security.

It is sometimes maintained that this provision creates binding obligations rather than being merely a statement of attitude with regard to nonmembers of the United ~ a t i 0 n s . l 'This~ may be the correct approachsince the principles enumerated in article 2 of the Charter can be regarded as part of customary international law, and in view of the factthat an agreement may legitimately provide for enforcement sanctions
to be implemented against a state guilty of aggression. Article 75 of theConvention provides:
the provisions of the Convention are without prejudice to any obligationin relation to a treaty which may arise for an aggressor state in consequenceof measures taken in conformity with the Charter of the United Nations
with reference to that state's aggression.

Article 35 notes that an obligation may arise for a third state from aterm of a treaty if the parties to the treaty so intend and if the third state
expressly accepts that obligation in writing.'''Yearbook of the ILC, 1966, vol. 11, p. 227.
Article 38. See above, chapter 3, 17. 90, and the North Sea Continental Shelf cases,
ICJ Reports, 1969, p. 3; 41 ILR, p. 29. See also Yearbook of the ILC, 1966, vol. 11,
p. 230.
"'See below, chapter 21, p. 1054.
'I6 See e.g. H. Kelsen, The Law of the United Nations, London, 1950, pp. 106-10. See also
McNair, Law of Treaties, pp. 216-18.
' I 7 See, as to the creation here of a collateral agreement forming the basis of the obligation,
Yearbook ofthe ILC, 1966, vol. 11, p. 227.
'I4

836

I N T E R N A T I O N A L LAW

As far as rights allocated to third states by a treaty are concerned, thematter is a little different. The Permanent Court of International Justicedeclared in the Free Zones case118that:the question of the existence of a right acquired under an instrument drawn
between other states i s . . . one to be decided in each particular case: it must
be ascertained whether the states which have stipulated in favour of a thirdstate meant to create for that state an actual right which the latter has
accepted as such.

Article 36 of the Vienna Convention provides that:a right arises for a third state from a provision of a treaty if the parties tothe treaty intend the provision to accord that right either to the third state,or to a group of states to which it belongs, or to all states, and the third state
assents thereto. Its assent shall be presumed so long as the contrary is notindicated, unless the treaty otherwise provides.

Further, particular kinds of treaties may create obligations or rights
erga omnes and in such cases, all states would presumptively be boundby them and would also benefit. Examples might include multilateraltreaties establishing a particular territorial regime, such as the Suez andKiel Canals or the Black Sea straits.'19 In the Wimbledon case,l2' thePermanent Court noted that 'an international waterway. . . for the benefitof all nations of the world' had been established. In other words, foran obligation to be imposed by a treaty upon a third state, the express
agreement of that state in writing is required, whereas in the case of
benefits granted to third states, their assent is presumed in the absenceof contrary intention. This is because the general tenor of customaryinternational law has leaned in favour of the validity of rights granted tothird states, but against that of obligations imposed upon them, in thelight of basic principles relating to state sovereignty, equality and noninterference.
PCIJ, Series AIA, No. 46, 1932, pp. 147-8; 6 AD, pp. 362, 364.
See e.g. Aust, ,Modern Treaty Law, pp. 208-9; Nguyen Quoc Dinh et al., Droit Irlterrlational
Pllblic, p. 248, and N. Ragazzi, The Coizcept ofInternntiorza1 Obligutions Ergu Ornnes,
Oxford, 1997. See further, as to erga omnes obligations, above, chapter 14, p. 720.
120
PCIJ, Series A, No. 1, 1923, p. 22; 2 AD, p. 99. See also Yearbook ofthe ILC, 1966, vol. 11,
pp. 228-9, and E. Jiinknez de Arkchaga, 'International Law in the Past Third of a Century',
159 HR, 1978, pp. 1, 54, and de Arechaga,'Treaty Stipulations in Favour of Third States',
50 AJIL, 1956, pp. 338,355-6.
'I9

T H E LAW O F T R E A T I E S

837

The amendment and modification of treaties
Although the two processes of amending and modifying international
agreements share a common aim in that they both involve the revision oftreaties, they are separate activities and may be accomplished in different
manners. Amendments refer to the formal alteration of treaty provisions,affecting all the parties to the particular agreement, while modifications
relate to variations of certain treaty terms as between particular parties
only. Where it is deemed desirable, a treaty may be amended by agreement between the parties, but in such a case all the formalities as to theconclusion and coming into effect of treaties as described so far in thischapter will have to be observed except in so far as the treaty may otherwise provide.'2' It is understandable that as conditions change, the need
may arise to alter some of the provisions stipulated in the international
agreement in question. There is nothing unusual in this and it is a normal
facet of international relations. The fact that such alterations must be effected with the same formalities that attended the original formation of
the treaty is only logical since legal rights and obligations may be involved
and any variation of them involves considerations of state sovereignty
and consent which necessitate careful interpretation and attention. It is
possible, however, for oral or tacit agreement to amend, providing it isunambiguous and clearly evidenced. Many multilateral treaties lay down
specific conditions as regards amendment. For example, the United Nations Charter in article 108 provides that amendments will come into
force for all member states upon adoption and ratification by two-thirdsof the members of the organisation, including all the p ermanent membersof the Security Council.
Problems can occur where, in the absence of specific amendment processes, some of the parties oppose the amendments proposed by others.
Article 40 of the Vienna Convention specifies the procedure to be adopted
in amending multilateral treaties, in the absence of contrary provisions in
the treaty itself. Any proposed amendment has to be notified to all contracting states, each one of which is entitled to participate in the decision
as to action to be taken and in the negotiation and conclusion of any agreements. Every state which has the right to be a party to the treaty possesses
also the right to become a party to the amendment, but such amendments will not bind any state which is a party to the original agreement'" Article 39. See also Sinclair, Vienizu Coizventioiz, yp. 106-9; Aust, Modern Treaty Law,chapter 15, and Yearbook of the ILC, 1966, vol. 11, p. 232.

838

I N T E R N A T I O N A L LAW

and which does not become a party to the amended agreement,12' subject
to any provisions to the contrary in the treaty itself.
The situation can become a little more complex where a state becomesa party to the treaty after the amendments have come into effect. Thatstate will be a party to the amended agreement, except as regards parties
to the treaty that are not bound by the amendments. In this case the state
will be considered as a party to the unamended treaty in relation to thosestates.
Two or more parties to a multilateral treaty may decide to change thatagreement as between themselves in certain ways, quite irrespective of any
amendment by all the parties. This technique, known as modification, ispossible provided it has not been prohibited by the treaty in question andprovided it does not affect the rights or obligations of the other parties.
Modification, however, is not possible where the provision it is intended
to alter is one 'derogation from which is incompatible with the effective
execution of the object and purpose of the treaty as a whole:12' A treaty
may also be modified by the terms of another later agreement124or by theestablishment subsequently of a rule of jtls ~ 0 g e n s . l ~ ~Treaty inter p retation 1'"
One of the enduring problems facing courts and tribunals and lawyers,both in the municipal and international law spheres, relates to the question of i n t e r p r e t a t i ~ n .Accordingly,'~~
rules and techniques have been put'" See article 30(4)b.

'"Article 41.
'24 See article 30, and above, p. 833.
See above, chapter 3, p. 115, and belo~v,p. 850.
""eee.g. Sinclair, Vienna Convention, chapter 5; G. Fitzmaurice, 'The Law and Procedureof the International Court of lustice, 19514: 33 BYIL, 1957, p. 203 and 28 BYIL, 1951,
p. 1; H. Lauterpacht, 'Restrictive Interpretation and the Principle of Effectiveness in theInterpretation of Treaties', 26 BYIL, 1949, p. 48; hl. S. McDougal, H. Lasswell and J. C.
Miller, The Interpretation of Agreements and 14brld Public Order, Yale, 1967; E . Gordon,'The World Court and the Interpretation of Constitutive Treaties', 59 AJIL, 1965, p. 794;
O'Connell, International Law, 1717. 251 ff., and Brownlie, Principles, pp. 626 ff. See
also S. Sur, L'lnterpretation en Droit International Public, Paris, 1974; h1. K. Yasseen,'L'Interpretation des Traites d'apres la Convention de I'ienne', 151 HR, 1976 111, p. 1; H.
Thirlway, 'The Law and Practice of the International Court of rustice 1960-1989 (PartThree)', 62 BYIL, 1991, pp. 2, 16 ff. and '(Part Four)' 62 BYIL, 1992, 17. 3; Aust, Modern
Treaty Law, chapter 13; Nguyen Quoc Dinh et al., Droit Irlternational Public, p. 252, andOppenheirn's International La*+:p. 1266.
12' Note that a unilateral interpretation of a treaty by the organs of one state would not bebinding upon the other parties: see McNair, Law of Treaties, pp. 345-50, and the David 1.
Adarns claim, 6 RIAA, p. 85 (1921); 1 AD, p. 331.

T H E LAW O F T R E A T I E S

839

forward to aid judicial bodies in resolving such pr0b1ems.l~~
As far asinternational law is concerned, there are three basic approaches to treaty
i n t e r ~ r e t a t i 0 n .Thel ~ ~ first centres on the actual text of the agreement andemphasises the analysis of the words used.l3' The second looks to the intention ofthe parties adopting the agreement as the solution to ambiguous
provisions and can be termed the subjective approach in contradistinctionl ~ ~ third approachto the objective approach of the previous s ~ h o o 1 . The
adopts a wider perspective than the other two and emphasises the object
and purpose of the treaty as the most important backcloth against which
the meaning of any particular treaty provision should be measured.'32
This teleological school of thought has the effect of underlining the roleof the judge or arbitrator, since he will be called upon to define the object and purpose of the treaty, and it has been criticised for encouraging
judicial law-making. Nevertheless, any true interpretation of a treaty ininternational law will have to take into account all aspects of the agreement, from the words employed to the intention of the parties and theaims of the particular document. It is not possible to exclude completely
any one of these components.
Articles 31 to 33 of the Vienna Convention comprise in some measureaspects of all three doctrines. Article 31 lays down the fundamental rulesof interpretation and can be taken as reflecting customary international
law.133Article 31(1) declares that a treaty shall be interpreted 'in goodfaith in accordance with the ordinary meaning to be given to the termsof the treaty in their context and in the light of its object and purpose:134
But see J. Stone, 'Fictional Elements in Treaty Interpretation', 1 Sydney Law Review, 1955,
p. 344.
See Sinclair, Vienna Convention, pp. 114-15, and Fitzmaurice, 'Reservations:
See Fitzmaurice, 'Law and Procedure: pp. 204-7.
See e.g. H. Lauterpacht, 'De 1'Interpretation des Traites: Rapport et Projet de Rksolutions:43 Annuaire de l'lnstitut de Droit International, 1950, p. 366.
See e.g. Fitzmaurice, 'Reservations', pp. 7-8 and 13-14, and 'Law and Procedure',
pp. 207-9.
l3"heInternational Court has reaffirmed that articles 31 and 32 of the Vienna Convention
reflected customary law: see e.g. the IndonesialMalaysia case, ICJ Reports, 2002, para. 37;
the Libya/Chad case, ICJ Reports, 1994, pp. 6,21-2; 100 ILR, pp. 1,20-1, and the Qatar
v. Ballrain case, ICJ Reports, 1995, pp. 6, 18; 102 ILR, pp. 47, 59. In the GATT Dispute
Settlement Panel Report on United States Restrictions on Imports of Tuna in 1994, it wasemphasised that the Vienna Convention expressed the basic rules with regard to treaty interpretation, 33 ILM, 1994, pp. 839,892. See also Oppenheirn's International Law, p. 1271.
134 See e.g. the German External Debts arbitration, 19 ILM, 1980, pp. 1357, 1377. See also
Tudge Ajibola's Separate Opinion in the Libya/Chad case, ICJ Reports, 1994, pp. 6,71; 100
ILR, pp. 1, 69. As to 'object and purpose', see e.g. the LuGrand case, ICJ Reports, 2001,
para. 102.

""

"'

"'

840

I N T E R N A T I O N A L LAW

The International Court noted in the Competence of the General Assembly
for the Admission of a State to the UnitedNations case135that 'the first dutyof a tribunal which is called upon to interpret and apply the provisionsof a treaty is to endeavour to giveeffect to them in their natural and ordinary meaning in the context in which they occur'.'36 On the basis of
this provision, for example, the European Court of Human Rights heldin the Lithgow case"7 that the use of the phrase 'subject to the conditions
provided for. . . by the general principlesof international law' in article 1
of Protocol I of the European Convention in the context of compensation
for interference with property rights, could not be interpreted as extending the general principles of international law in this field to establish
standards of compensation for the nationalisation of property of nationals (as distinct from aliens).'" The word 'context' is held to include thepreamble and annexes of the treaty as well as any agreement or instrument
made by the parties in connection with the conclusion of the treaty.'39
The Tribunal in the Eritrea-Ethiopia Boundary case emphasised that theelements contained in article 31(1) were guides to establishing what theparties actually intended or their 'common will"" and in this process
the principle of 'contemporaneity' is relevant. This means that a treaty
should be interpreted by reference to the circumstances prevailing when
the treaty was c ~ n c l u d e d , so
' ~ ~that, for instance, expressions and geographical names used in the instrument should be given the meaningthat they would have possessed at that time.14' However, as the International Court has noted, this does not prevent it from taking into accountin interpreting a treaty, 'the present-day state of scientific knowledge, as
reflected in the documentary material submitted to it by the parties'.143"' ICJ Reports, 1950, pp. 4, 8; 17 ILR, pp. 326, 328.
See also the La Bretagne arbitration (Canada v. France), 82 ILR, pp. 590, 620.

'" European Court of Human Rights, Series 4, No. 102, para. 114; 75 ILR, pp. 438,482.
See also the James case, European Court of Human Rights, Series A, No. 98, para. 61; 75
ILR, pp. 397, 423, and the Advisory Opinions of the Inter-American Court of Human
Rights in the Enforceability of theRight toReply case, 79 ILR, pp. 335,343, and the Meaningof the Word 'Laws'case, 79 ILR, pp. 325, 329.
~ r t i c l e31(2).See also the L'S Nationals in morocco case, ICJ Reports, 1952, pp. 176, 196;
19 ILR, pp. 255,272; the Beagle Charznel case, H M S O , 1977, p. 12; 52 ILR, p. 93, and theYoung Loan arbitration, 59 ILR, pp. 495, 530.
140 Decision of 13 April 2002, para. 3.4, http://pca-cpa.org/PDF/EEBC/EEBC%20%20Text%20of?h20Decision.htm See also Lord McNair in the Argentina/Chile Frontiercase, 38 ILR, pp. 10, 89.
l4' See Cameroon v. Nigeria, ICJ Reports, 2002, para. 59. See also D. \V. Greig, Intertemporality
and the Law of Treaties, London, 200 1, and, as to the doctrine of intertemporal law, above,
chapter 9, p. 429.
'" Eritrea-Ethiopia, paras. 3.5 and 5.17.
14' Botsivana/Nanlibia, ICJ Reports, 1999, pp. 1045, 1060.

T H E LAW O F T R E A T I E S

841

It has also been noted that the process of interpretation 'is a judicial
function, whose purpose is to determine the precise meaning of a provision, but which cannot change
In addition, any subsequent agreement or practice relating to the treaty
must be considered together with the context.'" Subsequent practice may
indeed have a dual role: it may act as an instrument of interpretation andit may also mark an alteration in the legal relations between the parties
established by the treaty in question.14"
The provision whereby any relevant rules of international law applicable in the relations between the parties shall be taken into account ininterpreting a treaty14' was applied in Ira11 v. Unitedwhich wasconcerned with the question whether a dual Iran-US national could bringa claim against Iran before the Iran-US Claims Tribunal where the Claims
Settlement Agreement, 1981 simply defined a US national as a 'natural
The Full Tribunal
person who is a citizen o f . . . the United
held that jurisdiction existed over claims against Iran by dual Iran-US
nationals when the dominant and effective nationality of the claimant
at the relevant period was that of the US. In reaching this decision, theTribunal cited article 3 l(3)c of the 1969 Vienna Convention as the mechanism whereby the considerable body of law and legal literature in thearea could be analysed in the context of interpreting the 1981 agreement
and which led it to its conclusion.
Where the interpretation according to the provisions of article 31 needs
confirmation, or determination since the meaning is ambiguous or obscure, or leads to a manifestly absurd or unreasonable result, recourse may
be had to supplementary means of interpretation under article 32. Thesemeans include the preparatory works (travuuxprkpuratoires) of the treaty
and the circumstances of its conclusion and may be employed in the above
circumstances to aid the process of interpreting the treaty in question.150
See e.g. the Laguna del Desierto case, 113 ILR, pp. 1, 44.
14'
Article 31(3)a and b.
Terrlple case, ICJ Reports, 1962, p. 6; 33 ILR, p. 48, theNarriibia case, ICJ Reports, 1971, pp. 16, 22; 49 ILR, p. 2, the Tabu case, 80 ILR, p. 226
and Eritrea-Ethiopia, paras. 3.6 ff.
14' Article 31(3)c. See also Loizidou v. Turkey (Preliminary Objections), European Court of
Human Rights, Series A, No. 310, p. 25; 103 ILR, p. 621.
14' Case No. A118, 5 Iran-US CTR, p. 251; 75 ILR, pp. 175, 188.
'" Article VII(1)a.
lS0 See Yearbook of tlze ILC, 1966, vol. 11, p. 223, doubting the rule in the River Oder case,
PCIJ, Series A, No. 23, 1929; 5 AD, pp. 381, 383, that the travuuxpr6paratoires of certain
provisions of the Treaty of Versailles could not be taken into account since three ofthe states before the Court had not participated in the preparatory conference. See also
the Young Loan case, 59 ILR, pp. 495,544-5; Sinclair, Vienna Convention, pp. 141-7, andthe Lithgow case, European Court of Human Rights, Series A, No. 102, para. 117; 75 ILR,
pp. 438,484. In the Libya/Chad case, ICJ Reports, 1994, pp. 6, 27; 100 ILR, pp. 1, 26, the'44

146 As to the latter, see e.g. the842

I N T E R N A T I O N A L LAW

Nevertheless, the International Court has underlined that 'interpretationmust be based above all upon the text of the treaty:151
Case-law provides some interesting guidelines to the above-stated rules.
In the Interpretution ofPeuce Treuties case,152the Court was asked whether
the UN Secretary-General could appoint the third member of a Treaty
Commission upon the request of one side to the dispute where the otherside (Bulgaria, Hungary and Romania) refused to appoint its own representative. It was emphasised that the natural and ordinary meaning of
the terms of the Peace Treaties with the three states concerned envisaged
the appointment of the third member after the other two had been nominated. The breach of a treaty obligation could not be remedied by creatinga Commission which was not the kind of Commission envisaged by theTreaties. The principle ofeffectiveness couldnot be used by the Court to attribute to the provisions for the settlement of disputes in the Peace Treaties
a meaning which would be contrary to their letter and spirit. The Court
also stressed the nature of the disputes clause as being one that had to bestrictly construed. Thus, the character of the provisions to be interpreted
is significant in the context of utilising the relevant rules of interpretation.
The principle of effectiveness'j3 will be used, however, in order to giveeffect to provisions in accordance with the intentions of the parties'" andin accordance with the rules of international law.15j
In two areas, it should be noted, the principle of effectiveness allied withthe broader purposes approach has been used in an especially dynamic
manner. In the case of treaties that also operate as the constitutional
International Court noted that while it was not necessary to have recourse to the travaux
pr4paratoiresto elucidate the content ofthe 1955 Treaty at the heart ofthe dispute, it foundit possible to confirm its reading of the text by such recourse. Similarly in the Qatar v.
Bahrain case, ICJ Reports, 1995, pp. 6,21; 102 ILR, pp. 47,62, the International Court did
not feel it necessary to turn to the travauxpr4paratoirer in order to determine the meaningof the instrument in dispute, but noted that 'it can hap-e recourse to supplementary meansin order to seek a possible confirmation of its interpretation of the text'.
"I
The LibyalChad case, ICJ Reports, 1994, pp. 6, 22; 100 ILR, pp. 1,21.
I"
ICJ Reports, 1950, pp. 221,226-30; 17 ILR, pp. 318,320-2. See also Yearbook of the ILC,
1966, vol. 11, p. 220.
The International Court in the Fisheries Jtlrisdictiorz (Spain v. Canada) case declared thatthe principle of effectiveness 'has an important role in the law of treaties', ICJ Reports,
1999, pp. 432,455.
'j4 See e.g. the Antbatielos case, ICJ Reports, 1952, 17. 28; 19 ILR, p. 416. See also the Corfu
Clzannel case, ICJ Reports, 1949, pp. 4, 24; 16 AD, pp. 155, 169 and Yearbook of the ILC,
1966, rol. 11, p. 219.
See e.g. the Fisheries Jurisdiction (Spain v. Canada) case, ICT Reports, 1999, pp. 432,455,
the Right of Passage (Preliminary Objections) case, ICJ Reports, 1957, p. 142 and theLaguna del Desierto case, 113 ILR, pp. 1,45.

"''"

T H E LAW O F T R E A T I E S

843

documents of an international organisation, a more flexible method ofinterpretation would seem to be justified, since one is dealing with an
instrument that is being used in order to accomplish the stated aims of thatorganisation. In addition, of course, the concept and nature of subsequent
practice possesses in such cases an added r e 1 e ~ a n c e .Thisl ~ ~ approach has
been used as a way of inferring powers, not expressly provided for in
the relevant instruments, which are deemed necessary in the context ofthe purposes of the 0 r g a n i ~ a t i o n . Thisl ~ ~ programmatic interpretation
doctrine in such cases is now well established and especially relevant to
the United Nations, where forty years of practice related to the principlesof the organisation by nearly 160 states is manifest.
The more dynamic approach to interpretation is also evident in thecontext of human rights treaties, such as the European Convention on
Human Rights, which created a system of im~1ernentation.l~~
It hasbeen held that a particular legal order was thereby established involving objective obligations to protect human rights rather than subjective,
reciprocal rights.159Accordingly, a more flexible and programmatic or
Note that by article 5, the Vienna Conventioil is deemed to apply to any treaty which isthe constituent instrument of an international organisation. See also C. F. Amerasinghe,
Principles ofthe blstitzltional Law ofInternationa1 O~.ganisations,Cambridge, 1996, chapter
2, and Amerasinghe, 'Interpretation of Texts in Open International Organisations', 65
BYIL, 1994, p. 175; M. N. Sha~: Title to Territory in Africa: International Legal Issues,
Oxford, 1986, pp. 64-73; S. Rosenne, 'Is the Constitution of an International Organisationan International Treaty?', 12 Con~municazionie Stzrdi, 1966, p. 21, and G. Distefano, 'La
Pratique Subskquente des Etats Parties a un Traitk', AFDI, 1994, p. 41.
15' See e.g. the Reparatioriscase, ICJ Reports, 1949, p. 174; 16AD, p. 318; the Certain Expensesof the L'N case, ICJ Reports, 1962, p. 151; 34 ILR, p. 281; the Competence of the General
Assembly for the Admission of a State case, ICJ Reports, 1950, p. 4; 17 ILR, p. 326, andthe Namibia case, ICJ Reports, 1971, p. 16; 49 ILR, p. 2. See also Shaw, Title to Territory;
R. Higgins, 'The Development of International Law by the Political Organs of the United
Nations: PASIL, 1965, p. 119, and H. G. Schermers and N. M. Blokker, International
Institutional Law, 3rd edn, The Hague, 1995, chapter 9. See further below, chapter 23,
pp. 1193 ff.
See further above, chapter 7,p. 323. See also J. G. hferrills, TheDevelopn~entofInternational
Law by the European Court ofHtnnan Rights, 2nd edn, Manchester, 1993, chapter 4. Notethat the European Court of Human Rights in Loizidou v. Turkey (Preliminary Objections),
Series A, No. 310, p. 26 (1995); 103 ILR, 17. 621, emphasised the fundamental differences
as between the role and purposes of the International Court of Justice and the European
Court.
lSy See e.g. Austria v. Italy, 4 European Yearbook of Hurnan Rights, 1960, pp. 116, 140 and
Ireland v. LTK, Series A, No. 25, p. 90 (1978). See also the Advisory Opinion of theInter-American Court of Humail Rights on the Effect of Reservations on the Entry into
Force of the American Convention on Human Rights, 22 ILM, 1983, pp. 37, 47; 67 ILR,
pp. 559, 568, which adopted a similar approach.
''13

'"

844

I N T E R N A T I O N A L LAW

purpose-oriented method of interpretation was adopted, emphasisingthat the Convention constituted a living instrument that had to be interpreted 'in the light of present-day condition^'.'^^ In addition, the object
and purpose of the Convention requires that its provisions be interpreted
so as to make its safeguards practical and effective.I6'
Indeed, in this context, it was noted in the LicensingofJournalistscase'62
that while it was useful to compare the Inter-American Convention on Human Rights with other relevant international instruments, this approach
could not be utilised to read into the Convention restrictions existing inother treaties. In this situation, 'the rule most favourable to the individual
must prevail',
Article 31 (4) provides that a special meaning shall be given to a term
if it is established that the parties so intended. It would appear that thestandard of proof is fairly high, since a derogation from the ordinary
meaning of the term is involved. It is not enough that one party only uses
the particular term in a particular way.16"
Where a treaty is authenticated in more than one language, as often
happens with multilateral agreements, article 33 provides that, in theabsence of agreement, in the event of a difference of meaning that thenormal processes of interpretation cannot resolve, the meaning which
best reconciles the texts, having regard to the object and purpose of thetreaty, shall be a d 0 ~ t e d . l ~ ~lGOSee e.g. the Tyrercase, European Court of Human Rights, Series A, No. 26, at p. 15 (1978);58 ILR, pp. 339, 553; the ~Mnrckxcase, ECHR, Series A, No. 32, at p. 14 (1979); 58 ILR,
pp. 561, 583; the WemkofJcase, ECHR, Series A, No. 7 (1968); 41 ILR, p. 281, and the
Loizidoil case, ECHR, Series A, No. 310, p. 23; 103 ILR, p. 621. See also H. Waldock, 'The
Evolution of Human Rights Concepts and the Application of the European Convention
on Human Rights' in M6lariges Offerts a Paul Reuter, Paris, 1981, p. 535. Note also theapproach talcen by the UN Human Rights Committee in its General Comment 24152 of
2 November 1994 on Reservations: see 15 Hunian Rights Law Jourilal, 1994, p. 464, andabove, p. 829.
See e.g. Soerir~gv. UK, European Court of Human Rights, Series A, No. 161, p.34 (1989);
98 ILR, p. 270; Artico v. Italy, ECHR, Series A, No. 37 (1980) and Loizidou v. Turkey,
ECHR, Series A, No. 310, p. 23 (1995); 103 ILR, p. 621.
16' Advisory Opinion of the Inter-American Court of Human Rights, 1985, 75 ILR, pp. 30,
47-8.
16' See the Eastern Greenland case, PCIJ, Series AIB, No. 53, 1933, p. 49; 6 AD, p. 95, and theAnglo-French Continental Slzelfcase, C ~ n n d7438, p. 50; 54 ILR, p. 6.
164 See the LaGrandcase, ICJ Reports, 200 1, para. 10 1;the lMavrommatisPalestine Concessions
case, PCIJ, Series A, No. 2, p. 19, which called for the more restrictive interpretation insuch cases, and the Young Loan case, 59 ILR, p. 495.

T H E LAW O F T R E A T I E S

Invalidity, termination and suspension of theoperation of treaties165

Generul provisions
Article 42 states that the validity and continuance in force of a treaty
may only be questioned on the basis of the provisions in the Vienna
Convention. Article 44 provides that a state may only withdraw from orsuspend the operation of a treaty in respect of the treaty as a whole and notparticular parts of it, unless the treaty otherwise stipulates or the parties
otherwise agree. If the appropriate ground for invalidating, terminating,withdrawing from or suspending the operation of a treaty relates solely
to particular clauses, it may only be invoked in relation to those clauses
where:(a) the said clauses are separable from the remainder of the treaty withregard to their application;(b) it appears from the treaty or is otherwise established that acceptanceof those clauses was not an essential basis of consent of the other partyor parties to be bound by the treaty as a whole; and(c) continued performance of the remainder of the treaty would not be
uniust.

Thus the Convention adopts a cautious approach to the general issue ofseparability of treaty provisions in this ~ 0 n t e x t . l ~ ~Article 45 in essence provides that a ground for invalidity, termination, withdrawal or suspension may no longer be invoked by the state
where, after becoming aware of the facts, it expressly agreed that thetreaty is valid or remains in force or by reason of its conduct may bedeemed to have acquiesced in the validity ofthe treaty or its continuance inforce."j7'" Nguyen Quoc Dinhet al., DroitIvlternatio~zalPublic,p.302, and Oppenkeinl's Iv~ternatiollal
Law, 17. 1284. See also N. Kontou, The Termination and Revision of Treaties in the Light of
New Custornary International Law, Oxford, 1995, and h s t , Modern Treaty Latv, chapters
16 and 17.
' 6 6 See Judge Lauterpacht, the Norwegian Loans case, ICT Reports, 1957, pp. 9,55-9; 24 ILR,
pp. 782, 809, and Sinclair, Vienna Convention, pp. 165-7.
16' See e.g. the Arbitral Azvard by the King of Spain case, ICJ Reports, 1960, pp. 192,213-14;
30 ILR, pp. 457,473, and the Ten@ case, ICJ Reports, 1962, pp. 6,23-32; 33 ILR, pp. 48,
62. See also the Argentina-Chile case, 38 ILR, p. 10 and above, chapter 9.

846

I N T E R N A T I O N A L LAW

Invalidity of treaties
Municipal law
A state cannot plead a breach of its constitutional provisions as to themaking of treaties as a valid excuse for condemning an agreement. There
has been for some years disagreement amongst international lawyers as
to whether the failure to abide by a domestic legal limitation by, for example, a head of state in entering into a treaty, will result in rendering
the agreement invalid or not.168The Convention took the view that ingeneral it would not, but that it could in certain circumstances.
Article 46(1) provides that:[a] state may not invoke the fact that its consent to be bound by a treaty
has been expressed in violation of a provision of its internal law regarding
competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental
importance.

Violation will be regarded as manifest if it would be 'objectively evident'
to any state conducting itself in the matter in accordance with normal
practice, and in good faith.169For example, where the representative ofthe
state has had his authority to consent on behalf of the state made subject
to a specific restriction which is ignored, the state will still be bound bythat consent save where the other negotiating states were aware of therestriction placed upon his authority to consent prior to the expressionof that consent.170This particular provision applies as regards a person
authorised to represent a state and such persons are defined in article 7 toinclude heads of state and government and foreign ministers in addition
to persons possessing full powers.171
The International Court dealt with this question in Cameroon v.
Nigeria, where it had been argued by Nigeria that the Maroua Declaration of 1975 between the two states was not valid as its constitutionalrules had not been complied with. The Court noted that the Nigerian
head of state had signed the Declaration and that a limitation of his capacity would not be 'manifest' unless at least properlypublicised. This was
See Sinclair, Vienna Coizventiorz, pp. 169-71, distinguishing between the constitutionalist
and internationalist schools, and K. Holloway, Modern Trends in Treaty Law, London,
1967, pp. 123-33. See also Yearbook of the ILC, 1966, vol. 11, pp. 240-1.
16' Article 46(2).
17' Article 47. See e.g. the Eastern Greenland case, PCIJ,Series AIB, No. 53, 1933; 6 AD, p. 95,
and Qatar v. Bahrain, ICJ Reports, 1994, pp. 112, 121-2; 102 ILR, pp. 1, 18-19.
l7' See above, p. 815.

T H E LAW O F T R E A T I E S

847

especially so since heads of state are deemed to represent their states forthe purpose of performing acts relating to the conclusion of treaties.172
The Court also noted that 'there is no general legal obligation for states tokeep themselves informed of legislative and constitutional developments
in other states which are or may become important for the international
relations of these states'.I7"
It should, of course, also be noted that a state may not invoke a provision of its internal law as a justification for its failure to carry out aninternational obligation. This is a general principle of international law'74
and finds its application in the law of treaties by virtue of article 27 of the1969 Vienna Convention.
Error
Unlike the role of mistake in municipal laws of contract, the scope ininternational law of error as invalidating a state's consent is rather limited.
In view of the character of states and the multiplicity of persons actuallydealing with the negotiation and conclusion of treaties, errors are not very
likely to happen, whether they be unilateral or mutual.
Article 48 declares that a state may only invoke an error in a treaty as
invalidating its consent to be bound by the treaty, if the error relates to afact or situation which was assumed by that state to exist at the time when
the treaty was concluded and formed an essential basis of its consent tobe bound by the treaty. But if the state knew or ought to have known of
the error, or if it contributed to that error, then it cannot afterwards free
itself from the obligation of observing the treaty by pointing to that error.
This restrictive approach is in harmony with the comments made ina number of cases, including the Temple case,17' where the International
Court of Justice rejected Thailand's argument that a particular map contained a basic error and therefore it was not bound to observe it, since'the plea of error cannot be allowed as an element vitiating consent if theparty advancing it contributed by its own conduct to the error, or could
have avoided it, or if the circumstances were such as to put that party on
notice of a possible e r r ~ r ' . " The~ Court felt that in view of the character17'

ICJ Reports, 2002, para. 265.

17"bid.,174 See e.g. the Alaharl~aClaims arbitration,

17'

para. 266.

1. B. Moore, International4rbitratior~s,New York,1898, vol. I, p. 495, and the Grcco-Bulgarian Cornrrl~initicscase, PCIT, Series B, No. 17,
p. 32; 5 AD, p. 4. See also the Applicability of the Obligation to Arbitrate under Section 21
ofthe United Nations Headquarters Agreement case, ICT Reports, 1988, pp. 12, 34-5; 82
ILR, pp. 225,252.
ICJ Reports, 1960, p. 6; 33 ILR, p. 48.
176 ICJ Reports, 1960, p. 26; 33 ILR, p. 65.

848

I N T E R N A T I O N A L LAW

and qualifications of the persons who were involved on the Thai side in
examining the map, Thailand could not put forward a claim of error.
Fraud and corruption
Where a state consents to be bound by a treaty as a result of the fraudulent
conduct of another negotiating state, that state may under article 49 invoke
the fraud as invalidating its consent to be bound. Where a negotiating state
directly or indirectly corrupts the representative of another state in orderto obtain the consent of the latter to the treaty, that corruption may underarticle 50 be invoked as invalidating the consent to be bound.'"
Coercion
Ofmore importance than error, fraud or corruption in the law oftreaties is
the issue of coercion as invalidating consent. Where consent has been obtained by coercing the representative of a state, whether by acts or threats
directed against him, it shall, according to article 51 of the Convention,
be without any legal effect.178
The problem of consent obtained by the application of coercion against
the state itself is a slightly different one. Prior to the League of Nations,
it was clear that international law did not provide for the invalidation oftreaties on the grounds of the use or threat of force by one party against
the other and this was a consequence of the lack of rules in customarylaw prohibiting recourse to war. With the signing of the Covenant of the
League in 1919, and the Kellogg-BriandPact in 1928 forbidding the resort
to war to resolve international disputes, a new approach began to be takenwith regard to the illegality of the use of force in international relations.
With the elucidation of the Nuremberg principles and the coming into
effect of the Charter of the United Nations after the Second World War,
it became clear that international law condemned coercive activities bystates.
Article 2(4) of the United Nations Charter provides that:[all1 members shall refrain in their international relations from the threator use of force against the territorial integrity or political independence ofany state, or in any other measure inconsistent with the purposes of theUnited Nations.
Such instances are very rare in practice: see Yearbook of the ILC, 1966,1701. 11, pp. 244-5
and Sinclair, Vienna Convention, pp. 173-6.
17' See e.g. First Fidelity Bank N A v. Government ofAntigua and Barbuda Permanent Mission
877 F. 2d 189, 192 (1989); 99 ILR, pp. 126, 130.
17'

T H E LAW O F T R E A T I E S

849

It followed that treaties based on coercion of a state should be regarded
as i n ~ a 1 i d . l ~ ~Accordingly, article 52 ofthe Convention provides that '[a] treaty is void
if its conclusion has been procured by the threat or use of force in violationof the principles of international law embodied in the Charter of theUnited Nations'. This article was the subject of much debate in the Vienna
Conference preceding the adoption of the Convention. Communist andcertain Third World countries argued that coercion comprised not only
the threat or use of force but also economic and political pressure^.'^^ The
International Law Commission did not take a firm stand on the issue, but
noted that the precise scope of the acts covered by the definition should beleft to be determined in practice by interpretation of the relevant Charter
provisions.181
The Vienna Conference, however, issued a Declaration on the Prohibition of Military, Political or Economic Coercion in the Conclusion ofTreaties, which condemned the exercise of such coercion to procure theformation of a treaty. These points were not included in the Convention
itself, which leaves one to conclude that the application of political or
economic pressure to secure the consent of a state to a treaty may not
be contrary to international law, but clearly a lot will depend upon therelevant circumstances.
In international relations, the variety of influences which may bebrought to bear by a powerful state against a weaker one to induce it toadopt a particular line of policy is wide-ranging and may cover not only
coercive threats but also subtle expressions of displeasure. The precise
nuances of any particular situation will depend on a number of factors,
and it will be misleading to suggest that all forms of pressure are as such
violations of international law.
The problem was noted by Judge Padilla Nervo in the International
Court in the Fisheries Jurisdictioiz case182when he stated that:
there are moral and political pressures which cannot be proved by the socalled documentary evidence, but which are in fact indisputably real andwhich have, in history, given rise to treaties and coilventioils claimed to be
freely concluded and subjected to the principle of pacta sunt servanda.la3"'See Yearbook of the ILC, 1966, vol. 11, pp. 246-7. See also the Fisheries J~~risdiction
case,
ICJ Reports, 1973, pp. 3, 14; 55 ILR, pp. 183, 194.
l X 0 See Sinclair, Vienna Convention, pp. 177-9.
l X 1 Yearbook of the ILC, 1966, vol. 11, pp. 246-7.

18'

ICJ Reports, 1973, p. 3; 55 ILR, p. 183.

18'

ICJ Reports, 1973, p. 47; 55 ILR, p. 227.

850

I N T E R N A T I O N A L LAW

It should also be noted that the phrase 'in violation of the principles
of international law embodied in the Charter' was used so that article 52
should by no means be construed as applying solely to members of theUnited Nations but should be treated as a universal rule.
Jus cogens''"
Article 53 of the Convention provides that:[a] treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present
Convention, a peremptory n o r m of general international law is a n o r m accepted and recognised by the international community of states as a whole
as a n o r m from which n o derogation is permitted, and which can be modified only by a subsequent n o r m of general international law having thesame character.

Article 64 declares that '[ilf a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that
norm becomes void and terminates'.18'
As noted in chapter 3,1s6the concept of jus cogens, of fundamental andentrenched rules of international law, is well established in doctrine now,
but controversial as to content and method of creation. The insertion ofarticles dealing with jus cogens in the 1969 Convention underlines thebasic principles with regard to treaties.
Consequences of invalidity
Article 69 provides that an invalid treaty is void and without legal force.
If acts have nevertheless been performed in reliance on such a treaty, eachparty may require any other party to establish as far as possible in theirmutual relations the position that would have existed if the acts had notbeen performed. Acts performed in good faith before the invalidity was
la4 See e.g. J. Sztucki, Jus Cogens and the Vienna Convention on the Law of Treaties, New

York, 1974; C. Rozakis, The Corlcept of Jus Cogens in the Latv of Treaties, Leiden, 1976;
L. Hannikainen, Peremptory Nornls (]us Cogens) in Irlterrlatiorial Law, Helsinki, 1988;
A. Gomez Robledo, 'Le Jus Cogens International: Sa Genese, Sa Nature, Ses Fonctions',
172 HR, 1981, p. 9; L. Alexidze, 'Legal Nature of Jus Cogensin Contemporary International
Law', 172 HR, p. 219; G. Gaja, 'Jus Cogens Beyond the Vienna Convention', 172 HR, 1981,
p. 271; Nguyen Quoc Dinh et al., Droit International Public, p. 202, and Oppenheimi
International Laiv, p. 1292. See also Yearbook of the ILC, 1966, vol. 11, pp. 247-8, andSinclair, Vienna Convention, chapter 7.
lX5 See also article 71 and below, p. 851.
lX6 See above, p. 115.

T H E LAW O F T R E A T I E S

85l

invoked are not rendered unlawful by reason only of the invalidity of thetreaty.
Where a treaty is void under article 53, article 71 provides that theparties are to eliminate as far as possible the consequences of any act
performed in reliance on any provision which conflicts with jus cogens
and bring their mutual relations into conformity with the peremptorynorm. Where a treaty terminates under article 64, the parties are released
from any obligation further to perform the treaty, but this does not affectany right, obligation or legal situation of the parties created through theexecution of the treaty prior to its termination, provided that the rights,
obligations or situations maybe maintained thereafter in conformity with
the new peremptory norm.

T h e termination of treatiesls7
There are a number of methods available by which treaties may be terminated or suspended.
Termination by treaty provision or consent
A treaty may be terminated or suspended in accordance with a specificprovision in that treaty, or otherwise at any time by consent of all theparties after c ~ n s u l t a t i o n . 'Where,~~
however, a treaty contains no provision regarding termination and does not provide for denunciation orwithdrawal specifically, a state may only denounce or withdraw from thattreaty where the parties intended to admit such a possibility or where
the right may be implied by the nature of the treaty.la9 In General Comment No. 26 of 1997, the UN Human Rights Committee, noting that theInternational Covenant on Civil and Political Rights had no provision
for termination or denunciation, concluded on the basis of the Vienna
Convention provisions, that the parties had not intended to admit ofsuch a possibility. The Committee based itself on the fact that states parties were able to withdraw their acceptance of the right of inter-state
See e.g. E. David, The Strategy of Treaty Terriiination, New Haven, 1975; A. \'am\~oukis,
Termination of Treatiex in blterrlational Law, Oxford, 1985, and R. Plender, 'The Role ofConsent in the Termination of Treaties: 57 BYIL, 1986, p. 133. See also Thirlway, 'Law
and Procedure (Part Four)', pp. 63 ff., and Aust, Modern Treaty Law, chapter 16.
188 Articles 54 and 57.
1 8 ~ r t i c 56.
l e Examples given by J. Brierly, The Laiv ofNations, 6th edn, Oxford, 1963, p. 331,
include treaties of alliance and commerce. See also hTicaragua v. US, ICJ Reports, 1984,
pp. 392,420; 76 ILR, pp. 1, 131.
la'

852

I N T E R N A T I O N A L LAW

complaint, while the First Optional Protocol, concerning the right of individual communication, provided in terms for denunciation. The Committee also emphasised that the Covenant, as an instrument codifying
universal human rights, was not the type of treaty which, by its nature,
implies a right of denun~iation.'~'A treaty may, of course, come to an end if its purposes and objects havebeen fulfilled or if it is clear from its provisions that it is limited in time
and the requisite period has elapsed. The Tribunal in the Rainbow Warrior caselgl held that the breach of the New Zealand-France Agreement,
1986, concerning the two captured French agents that had sunkthe vesselin question,192had commenced on 22 July 1986 and had run continuously for the three years' period of confinement of the agents stipulated
in the agreement. Accordingly, the period concerned had expired on 22
July 1989, so that France could not be said to be in breach of its international obligations after that date. However, this did not exempt France
from responsibility for its previous breaches of its obligations, committed while these obligations were in force. Claims arising out of a previous
infringement of a treaty which has since expired acquire an existence independent of that treaty.lg3 The termination of a treaty does not affectany right, obligation or legal situation of the parties created through theexecution of the treaty prior to its termination.lg4
Just as two or more parties to a multilateral treaty may modify as between themselves particular provisions of the agreement,lg5so they may
under article 58 agree to suspend the operation of treaty provisions temporarily and as between themselves alone if such a possibility is provided
for by the treaty. Such suspension may also be possible under that article,
where not prohibited by the treaty in question, provided it does not affectthe rights or obligations of the other parties under the particular agreement and provided it is not incompatible with the object and purpose of
the treaty.
Where all the parties to a treaty later conclude another agreement
relating to the same subject matter, the earlier treaty will be regarded as
terminated where it appears that the matter is to be governed by the later
agreement or where the provisions of the later treaty are so incompatible
with those of the earlier one that the two treaties are not capable of being
applied at the same time.lg6
A153140, annexVI1.
l9' 82 ILR, pp. 499, 567-8.
19' See above, p. 695.
See the Dissenting Opinion of Judge McNair in the Arnbatielos case, ICJ Reports, 1952,
pp. 28,63; 19 ILR, pp. 416,433.
194 Article 70(l)b of the 1969 Vienna Convention. See below, p. 857.
Article 59.
19? Article 41 and above, p. 838.
19'

19'

"'

T H E LAW O F T R E A T I E S

853

Material breach'97
There are two approaches to be considered. First, if one state violates animportant provision in an agreement, it is not unnatural for the otherstates concerned to regard that agreement as ended by it. It is in effecta reprisal or c o ~ n t e r m e a s u r e , 'a~rather~
unsubtle but effective means of
ensuring the enforcement of a treaty. The fact that an agreement may beterminated where it is breached by one party may act as a discouragement
to any party that might contemplate a breach of one provision but would
be unwilling to forgo the benefits prescribed in others. On the other hand,to render treaties revocable because one party has acted contrary to whatmight very well be only a minor provision in the agreement taken as awhole, would be to place the states participating in a treaty in rather avulnerable position. There is a need for flexibility as well as certainty insuch situations. Customary law supports the view that something morethan a mere breach itself of a term in an agreement
would be necessary
to give the other party or parties the right to abrogate that agreement.
In the Tacna-Arica a r b i t r a t i ~ n , between'~~
Chile and Peru, the arbitrator
noted, in referring to an agreement about a plebiscite in former Peruvian
territory occupied by Chile, that:[i]t is manifest that if abuses of administration could have the effect ofterminating such an agreement, it would be necessary to establish suchserious conditions as the consequence of administrative wrongs as would
operate to frustrate the purpose of the agreement.'''

The relevant provision of the Vienna Convention is contained in article
60, which codifies existing customary law.201Article 60(3) declares that amaterial breach of a treaty 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.20' The
second part of article 60(3) was applied in the Rainbow Warrior case,203
where the obligation to confine the two French agents in question on a
Pacific Island for a minimum period of three years was held to have constituted the object or purpose of the New Zealand-France Agreement, 1986'" See e.g. S. Rosenne, Breach of Treaty, Cambridge, 1985. See also D. N. Hutchinson,'Solidarlty andBreaches ofMultilateral Trestles: 59 BYIL, 1988, p. 151, andM. M. Gomaa,
S ~ ~ s p e n s t oorn Termination of Treaties on Grounds ofBreach, The Hague, 1996.
19* See aboue, chapter 14, p. 708.
'99 2 RIAA, p. 921 ( 1 9 2 5 ) .
'0°
Ibid., pp. 943-4.
See the Gabtikovo-Nagyrnaros Project case, ICJ Reports, 1997, pp. 7 , 38; 116 ILR, p. 1.
O''
See the Namibia case, ICT Reports, 1971, pp. 16,46-7; 49 ILR, pp. 2 , 37.
"' 82 ILR, pp. 499,564-6.

"'

854

I N T E R N A T I O N A L LAW

so that France committed a material breach of this treaty by permitting
the agents to leave the island before the expiry of the three-year period.
Where such a breach occurs in a bilateral treaty, then under article 60(1)the innocent party may invoke that breach as a ground for terminating thetreaty or suspending its operation in whole or in part. The International
Court has made clear that it is only a material breach of the treaty itself, bya state party to it, which entitles the other party to rely on it for groundsof t e r m i n a t i ~ n . ~Further,'~termination on the basis of a breach which has
not yet occurred, such as Hungary's purported termination of a bilateraltreaty on the basis of works done by Czechoslovakia which had not at
the time resulted in a diversion of the Danube River, would be deemed
premature and would not be l a ~ f u l . ~ "There is a rather different situation in the case of a multilateral treaty
since a number of innocent parties are involved that might not wish thetreaty to be denounced by one of them because of a breach by anotherstate. To cover such situations, article 60(2) prescribes that a material
breach of a multilateral treaty by one of the parties entitles:(a) the other parties by unanimous agreement to suspend the operationof the treaty in whole or in part or to terminate it either:(i) in the relations between themselves and the defaulting state, or(ii) as between all the parties;(b) a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations
between itself and the defaulting state;(c) any party other than the defaulting state to invoke the breach as aground for suspending the operation of the treaty in whole or in partwith respect to itself if the treaty is of such a character that a material
breach of its provisions by one party radically changes the position of
every party with respect to the further performance of its obligations
under the treaty.'06

It is interesting to note that the provisions of article 60 regarding thedefinition and consequences of a material breach do not apply, by article 60(5), to provisions relating to the 'protection of the human person
contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such*'"heGabtlkovo-Nagyrnaros Project case, ICJ Reports, 1997, pp. 7, 65; 116 ILR, p. 1.
ICJ Reports, 1997, p. 66.
*06 See Yearbook ofthe ILC, 1966, vol. 11, pp. 253-5. See also the Narntbta case, ICJ Reports,
1971, pp. 16, 47; 49 ILR, p. 37, and the US-France Arr Servlces Agreement case, 54 ILR,
pp. 304, 331.
'05

T H E LAW O F T R E A T I E S

855

treaties'. This is because objective and absolute principles are involved andnot just reciprocal rights and duties.207
Supervening impossibility of performance208
Article 61 of the Convention2" is intended to cover such situations as
the submergence of an island, or the drying up of a river where the consequence of such events is to render the performance of the treaty impossible. Where the carrying out of the terms of the agreement becomes
impossible because of the 'permanent disappearance or destruction of an
object indispensable for the execution of the treaty', a party may validly
terminate or withdraw from it. However, where the impossibility is only
temporary, it may be invoked solely to suspend the operation of the treaty.
Impossibility cannot be used in this way where it arises from the breachby the party attempting to terminate or suspend the agreement of a treaty
or other international obligation owed to any other party to the treaty.'10
Fundamental change of circumstance^^^'The doctrine of rebus sicstantibusis a principle in customary internationallaw providing that where there has been a fundamental change of circumstances since an agreement was concluded, a party to that agreement may
withdraw from or terminate it. It is justified by the fact that some treaties
may remain in force for long periods of time, during which fundamental
changes might have occurred. Such changes might encourage one of theparties to adopt drastic measures in the face of a general refusal to accept
an alteration in the terms of the treaty. However, this doctrine has been
criticised on the grounds that, having regard to the absence of any systemSee e.g. G. Fitzmaurice, 'General Principles of International Law Considered from theStandpoint of the Rule of Law', 92 HR, 1957, pp. 1, 125-6, and above, chapter 7, p. 323.
'Ox See e.g. McNair, Laiv of Treaties, pp. 685-8, and Sinclair, Vienna Convention, pp. 190-2.
'09 This is also a codification of customary law: see the Gabi-ikovo-Nagymaros Project case,
ICJ Reports, 1997, pp. 7, 38; 116 ILR, p. 1.
"O See Yearbook of the ILC, 1966, vol. 11, p. 256. See also the Gabtikovo-Nagynzaros Project
case, ICJ Reports, 1997, pp. 7, 63-4; 116 ILR, 17. 1.
'I'
See e.g. h1. N. Shaw and C. Fournet, 'Article 62' in Les Corlventions de Vienne de 1969 et de1986sur le Droit des Traiths. Commer~taireArticlepar Article (eds.0.Corten and P. Klein),
Brussels, 2003; C. Hill, The Doctrine of Rebus Sic Stantibus in International Law, Leiden,
1934; 0. Lissitzyn, 'Treaties and Changed Circumstances (Rebus Sic Stantibtls): 61 ATIL,
1967, p. 895; P. Cahier, 'Le Changement Fondamental de Circonstances et la Convention
de L'ienne de 1969 sur le Droit des Traites' in MJlanges Ago, Milan, 1987, vol. I, p. 163,
and L'anlvoukis, Termination, part 1. See also Yearbook o f the ILC, 1966, vol. 11, pp. 257
ff. Note the decision in T W A Inc. v. Franklin Mint Corporation, 23 ILM, 1984, pp. 814,
820, that a private persoil could not plead the rebus rule.
'07

856

I N T E R N A T I O N A L LAW

for compulsory jurisdiction in the international order, it could operate asa disrupting influence upon the binding force of obligations undertaken
by states. It might be used to justify withdrawal from treaties on rather
tenuous grounds.212
The modern approach is to admit the existence of the doctrine, butseverely restrict its ~cope.~'"he International Court in the Fisheries Jurisdiction case declared that:[ilnternationdl law admits that a fimdamental change in the circumstances
which determined the parties to accept a treaty, if it has resulted in a radicaltransformation of the extent of the obligations imposed by it, may, undercertain conditions, afford the party affected a ground for invoking thetermination or suspension of the treaty.21"

Before the doctrine may be applied, the Court continued, it is necessarythat such changes 'must have increased the burden of the obligations to be
executed to the extent of rendering the performance something essentiallydifferent from that originally undertaken'.215
Article 62 of the Vienna Convention, which the International Court ofJustice regarded in many respects as a codification of existing customarylaw,216declares that:
1. A fundamental change of circumstances which has occurred with regard to those existing at the tirne ofthe conclusion of a treaty, and which was
not foreseen by the parties, may not be invoked as a ground for terminating
or withdrawing from the treaty unless:(a) the existence of those circumstances constituted an essential basis of
the consent of the parties to be bound by the treaty; and(b) the effect ofthe change is radically to transform the extent of obligations
still to be performed under the treaty.
2. A fundamental change of circumstances may not be invoked as aground for terminating or withdrawing from a treaty:

This was apparently occurring in the immediate pre-1914 period: see J. Garner, 'The
Doctrine of Rebus SicStantibus and the Ternlination of Treaties', 21 AJIL, 1927, p. 409, andSinclair, Vienna Conventiorl, p. 193. See also G. Harastzi, 'Treaties and the Fundamental
Change of Circumstances: 146 HR, 1975, p. 1.
213
See e.g. the Free Zones case, PCIJ, Series AIB, No. 46, pp. 156-8; 6 AD, pp. 362, 365.
21' Ibid.
'I4 ICJ Reports, 1973, pp. 3,20-1; 55 ILR, p. 183.
ICJ Reports, 1973, p. 18. See also the Gnbi-ikovo-Arugy/~zarosProject case, ICJ Reports,
1997, pp. 7, 38; 116 ILR, p. 1.

T H E LAW O F T R E A T I E S(a) if the treaty establishes a boundary; or(b) if the fundamental change is the result of a breach by the party invoking
it either of an obligation under the treaty or of any other international
obligation owed to any other party to the treaty.

The article also notes that instead of terminating or withdrawing from atreaty in the above circumstances, a party might suspend the operationof the treaty.
The doctrine was examined in the Gabi-ikovo-Nagymaros Project case,where the International Court concluded that:
The changed circumstances advanced by Hungary are, in the Court's view,not of such a nature, either individually or collectively, that their effectwould radically transform the extent ofthe obligations still to be performed
in order to accomplish the Project. A fundamental change of circumstances
must have been unforeseen; the existence of the circumstances at the timeof the Treaty's conclusion must have constituted an essential basis of theconsent of the parties to be bound by the Treaty. The negative and conditional wording of article 62 of the Vienna Convention on the Law of Treaties
is a clear indication moreover that the stability of treaty relations requiresthat the plea of fundamental change of circuinstances should be applied
only in exceptional cases.217

Consequences of the termination or suspension of a treaty
Article 70 provides that:
1. Unless the treaty otherwise provides or the parties otherwise agree,
the termination of a treaty under its provisions or in accordance with thepresent Convention:(a) releases the parties from any obligation further to perform the treaty;(b) does not affect any right, obligation or legal situation of the parties
created through the execution of the treaty prior to its termination.
2 . If a state denounces or withdraws from a multilateral treaty, paragraph
1 applies in the relations between that state and each of the other parties
to the treaty from the date when such denunciation or withdrawal takes
effect.

Article 72 provides that:'I7

ICJ Reports, 1997, p, 65. This was follo~vedby the European Court of Justice in Rucke v.
Hauptzolla~ntMainz 119981 ECR 1-3655, 3705-7.

I N T E R N A T I O N A L LAW

1.Unless the treaty otherwise provides or the parties otherwise agree, thesuspension ofthe operation of a treaty under its provisions or in accordancewith the present Convention:(a) releases the parties between which the operation of the treaty is suspended from the obligation to perform the treaty in their mutual relations during the period of the suspension;(b) does not otherwise affect the legal relations between the parties established by the treaty.
2. During the period of the suspension the parties shall refrain from acts
tending to obstruct the resumption of the operation of the treaty.218

Dispute settlement"'
Article 66 provides that if a dispute has not been resolved within twelve
months by the means specified in article 33 ofthe UN Charter then further
procedures will be followed. If the dispute concerns article 53 or 64 (jwcogens), any one of the parties may by a written application submit it to theInternational Court of Justice for a decision unless the parties by common
consent agree to submit the dispute to arbitration. If the dispute concerns
other issues in the Convention, any one of the parties may by request to
the UN Secretary-General set in motion the conciliation procedure laid
down in the Annex to the Convention.
Treaties between states and international organisations 220
The International Law Commission completed Draft Articles on the Law
of Treaties between States and International Organisations or between International Organisations in 1982 and the Vienna Convention on the Law
of Treaties between States and International Organisations was adopted
in 1986.~"Its provisions closely follow the provisions of the 1969 Vienna
See also article 65 with regard to the relevant procedures to be followed.
See e.g. Aust, Modern Treaty Law, chapter 20, and J. G. Merrills, blternational Dispute
Settlement, 3rd edn, Cambridge, 1998. See also below, chapter 18.
O'
See e.g.G. Gaja, 'A "New" Vienna Convention on Treaties Between States and International
Organisations or Between International Organisations: A Critical Commentary', 58 BYIL,
1987, p. 253, and F. Morgenstern, 'The Convention on the Law of Treaties Between Statesand International Organisations or Between International Organisations' in International
Law at a Time ofperplexity (ed. Y.Dinstein), Dordrecht, 1989, p. 435.
"' See above, footnote 2.
'I9

T H E LAW O F T R E A T I E S

859

Convention mutatis mutandis. However, article 73 ofthe 1986 Convention
notes that 'as between states parties to the Vienna Convention on the Law
of Treaties of 1969, the relations of those states under a treaty between
two or more states and one or more international organisations
shall begoverned by that Convention'. Whether this provision affirming the superiority of the 1969 Convention for states will in practice prejudice theinterests of international organisations is an open question. In any event,there is no doubt that the strong wish of the Conference adopting the1986 Convention was for uniformity, despite arguments that the positionof international organisations in certain areas of treaty law was difficult
to assimilate to that of states.222
Special concern in the International Law Commission focused on theeffects that a treaty concluded by an international organisation has upon
the member states of the organisation. Article 36 bis of the ILC raft^^'provided that:
Obligations and rights arise for states members of an international organization from the provisions of a treaty to which that organization is a party
when the parties to the treaty intend those provisions to be the means ofestablishing such obligations and according such rights and have defined
their conditions and effects in the treaty or have otherwise agreed thereon,and if:(a) the states members of the organization, by virtue of the constituent
instrument ofthat organizatio~lor otherwise, have unanimously agreed
to be bound by the said provisions of the treaty; and(b) the assent ofthe states members of the organization to be bound by therelevant provisions ofthe treaty has been duly brought to the knowledgeof the negotiating states and negotiating organizations.

Such a situation would arise, for example, in the case of a customs
union, which was an international organisation, normally concluding
tariff agreements to which its members are not parties. Such agreements
would be of little value if they were not to be immediately binding on
member states.224
However, despite the fact that the European Community was particularly interested in the adoption of this draft article, it was rejected at the
See Morgenstern, 'Con~rent~on',
pp. 438-41.
Described in the ILC Commentary as the article arousing the most controversy, Yearbookof the ILC, 1982, vol. 11, part 2, p. 43.
224 Ibid., pp. 43-4.
2"

223

860

I N T E R N A T I O N A L LAW

It was replaced by article 74(3) of the Convention, which
provides:The provisions of the present Convention shall not prejudge any questionthat may arise in regard to the establishment of obligations and rights forstates members of an international organisation under a treaty to whichthat organisation is a party.

Accordingly, the situation in question would fall to be resolved on thebasis of the consent of the states concerned in the specific circumstancesand on a case-by-case basis.
The other area of difference between the 1986 and 1969 Conventions
concerns the provisions for dispute settlement. Since international organisations cannot be parties to contentious proceedings before the International Court, draft article 66 provided for the compulsory arbitration of
disputes concerning issues relating to the principles of jus cogens, withthe details of the proposed arbitral tribunal contained in the Annex. The
provisions of the 1969 Convention relating to the compulsory conciliation of disputes concerning the other articles were incorporated in thedraft with little change. The 1986 Convention itself, however, adopted adifferent approach. Under article 66(2), where an international organisation authorised under article 96 of the UN Charter to request advisory
opinions is a party to a dispute concerning jus cogens, it may apply for anadvisory opinion to the International Court, which 'shall be accepted asdecisive by all the parties to the dispute concerned'. If the organisation is
not so authorised under article 96, it may follow the same procedure acting
through a member state. If no advisory opinion is requested or the Court
itself does not comply with the request, then compulsory arbitration isprovided for.226
Suggestions for further reading
A. ALIS~,
Modern Treaty Law and Practice, Cambridge, 2000
I . Sinclair, The Vienna Convention on the Law of Treaties, 2 n d edn, Manchester,1984'" See e.g. Gaja, ' "New" Vienna Convention', p. 264.
226 See also above, chapter 14, p. 694, regarding the relationship between treaties and state

responsibility. The issue of state succession to treaties is covered in chapter 17, p. 871.

State succession

Political entities are not immutable. They are subject to change. New states
appear and old states disappear.' Federations, mergers, dissolutions andsecessions take place. International law has to incorporate such events into
its general framework with the minimum of disruption and instability.
Such changes have come to the fore since the end of the Second World
War and the establishment of over 100 new, independent countries.
Difficulties may result from the change in the political sovereignty overa particular territorial entity for the purposes of international law andthe world community. For instance, how far is a new state bound by
the treaties and contracts entered into by the previous sovereign of theterritory? Does nationality automatically devolve upon the inhabitants to
replace that of the predecessor? What happens to the public property of
See generally, D. P. O'Connell, State Sz~ccessionin 1\4unicipal Law arid blternational Law,
Cambridge, 2 vols., 1967; O'Connell, 'Recent Problems of State Succession in Relation
to New States', 130 HR, 1970, p. 95; K. Zemanek, 'State Succession after Decolonisation', 116 HR, 1965, p. 180; 0. Udokang, Succession ofNew States to International Treaties,
N e ~ vYork, 1972; J. H. W. Verzijl, International Law in Historical Perspective, Leiden, 1974;
vol VII; I. Brownlie, Principles ofPublic Iv~ternationalLaw, 5th edn, Oxford, 1998, chapter
28; UN, Materials on Succession of States, New York, 1967 and supplement AlCN.41263,
1972, and UN, Materials on Succession of States in Matters Other than Treaties, New York
1978; International Law Association, The Efect oflndependeizce on Treaties, London, 1965;
2.ivleriboute, La Codification de la Succession dJEtats aux Traitks, Paris, 1984; S. Torres
Bernardez, 'Succession of States' in hzternational Law: Acllievemeizts and Prospects (ed. hf.
Bedjaoui), Paris, 1991, p. 381; D. Bardonnet, La Succession d'Etats a Madagascar, Paris,
1970; R. Miillerson, 'The Continuity and Succession of States by Reference to the Former
USSR andYugosla\ria: 42 ICLQ, 1993, p. 473; A4. Koskenniemi and M. Lehto, 'La Successiond'Etats dans l'ex-URSS: AFDI, 1992, p. 179; M. Bedjaoui, 'Problemes Recents de Succession d'Etats dans les Etats nouveaux', 130 HR, 1970,p. 455; Opperikeimi International Law,
(eds. R. Y. Jennings and A. D. Watts), 9th edn, London, 1992, p. 208; Nguyen Quoc Dinh,
P. Daillier and A. Pellet, Droitlnternational Public, 7th edn, Paris, 2002, p. 538; M. N. Shaw,'State Succession Revisited', 5 Finnish YIL, 1994, p. 34; S~lccessionof States (ed. M . Mrak),
The Hague, 1999; B. Stern, 'La Succession d'Etats', 262 HR, 1996, p. 9; State Succession:
Codification Tested against Facts (eds. P. M. Eisemann and M. Koskenniemi), Dordrecht,
2000, and State Practice Regardingstate Succession and Issues ofRecognition (eds. J. Klabbers
et al.), The Hague, 1999.

862

I N T E R N A T I O N A L LAW

the previous sovereign, and to what extent is the new authority liable forthe debts of the old?
State succession in international law cannot be confused with succession in municipal law and the transmission ofproperty and so forth to therelevant heir. Other interests and concerns are involved and the principles
of state sovereignty, equality of states and non-interference prevent a universal succession principle similar to domestic law from being adopted.
Despite attempts to assimilate Roman law views regarding the continuity of the legal personality in the estate which falls by i n h e r i t a n ~ e this,~approach could not be sustained in the light of state interests and practice. The opposing doctrine, which basically denied any transmission ofrights, obligations and property interests between the predecessor andsuccessor sovereigns, arose in the heyday of positivism in the nineteenth
century. It manifested itself again with the rise of the decolonisation process in the form of the 'clean slate' principle, under which new statesacquired sovereignty free from encumbrances created by the predecessor
sovereign.
The issue of state succession can arise in a number of defined circumstances, which mirror the ways in which political sovereignty may be
acquired by, for example, decolonisation of all or part of an existing territorial unit, dismemberment of an existing state, secession, annexationand merger. In each of these cases a once-recognised entity disappears inwhole or in part to be succeeded by some other authority, thus precipitating problems of transmission of rights and obligations. However, thequestion of state succession does not infringe upon the normal rights andduties of states under international law. These exist by virtue ofthe fundamental principles of international law and as a consequence of sovereignty
and not as a result oftransference from the previous sovereign. The issue ofstate succession should also be distinguished from questions of successionof governments, particularly revolutionary succession, and consequential
patterns of recognition and re~ponsibility.~
In many cases, such problems will be dealt with by treaties, whether
multilateral treaties dealing with primarily territorial dispositions as, forexample, the Treaty of St Germain, 1919, which resolved some succession
questions relating to the dissolution of the Austro-Hungarian ~ m p i r e , ~' See O'Connell, Stute Succession, vol. I , pp. 9 ff.

See above, chapters 8 and 14.
See O'Connell, State S~lccession,vol. 11, pp. 178-82. This treaty provided for the responsibility of the successor states of the Austro-Hungarian Empire for the latter's public debts.
See also the Italian Peace Treaty, 1947.

STATE S U C C E S S I O N

863or bilateral agreements as between, for instance, colonial power and newstate, which, however, would not bind third states. The system of devolution agreements signed by the colonial power with the successor,
newly decolonised state, was used by, for example, the UK, France andthe Netherlands. Such agreements provided in general that all the rights
and benefits, obligations and responsibilities devolving upon the colonial
power in respect of the territory in question arising from valid international instruments, would therefore devolve upon the new state.' Thissystem, however, was not seen as satisfactory. by. many new states andskveral of them resorted to unilateral declarations, providing for a transitional period during which treaties entered into by the predecessor state
would continue in force and be subject to review as to which should be
accepted and which rejectede6In the case of bilateral treaties, those notsurviving under customary law would be regarded as having terminatedat the end of the period.
However, the issue of state succession in international law is particularly complex. Many of the rules have developed in specific response
to particular political changes and such changes have not always beentreated in a consistent manner by the international community.' The
Arbitration Commission established by the Conference on Yugoslavia,
for instance, emphasised that 'there are few well-established principles ofinternational law that apply to state succession. Application of these principles is largely to be determined case by case, though the 1978 and 1983
Vienna Conventions do offer some pidance',' while the German Federal
Supreme Court noted in the Espionage Prosectltion case that 'the problem
of state succession is one of the most disputed areas of international law'.9
The international aspects of succession are governed through the rules of"ee e.g, the UK-Burma Agreement of 1947. See also N. M~~gerwa,'Subjects of International
h4. Sorensen), London, 1968,pp.247,300-1,
Law'in MrznurtlofPublicInternr~tionalLrz~v(ed.
and Yearbook ofthe ILC, 1974, vol. 11, p. 186. See also O'Connell, State Succession, vol. 11,
pp. 352-73, and Rrownlie, Principles, p. 666.
See e.g, the Tanganyika statement of December 1961, quoted in Mugerwa, 'Subjects',
p. 302, subsequently follo~vedby similar declarations by, for example, Uganda, Kenya andBurundi. See also Yearbook of the ILC, 1974, vol. 11, p. 192. In Zambia's case, it was statedthat the question would be governed by customary international law, see O'Connell, State
Silccession, vol. 11, p. 115.
See Shaw, 'State Succession Revisited:
Opiilioil No. 13,96 ILR, pp. 726, 728. See also Oppenheiin's International Law, p. 236, andThird US Restatenlent ofForeign Relations Law, \Vashington, 1987, p. 100.
v a s e No. 2 BGz 38191, 94 ILR, pp. 68, 77-8.

*

864

I N T E R N A T I O N A L LAW

customary international law. There are two relevant Conventions, theVienna Convention on Succession of States in Respect of Treaties, 1978,
which entered into force in 1996, and the Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, 1983,
which is not yet in force. However, many of the provisions contained inthese Conventions reflect existing international law.
State succession itself may be briefly defined as the replacement of one
state by another in the responsibility for the international relations ofterritory.'' However, this formulation conceals a host of problems since
there is a complex range of situations that stretches from continuity ofstatehood through succession to non-succession. State succession is essentially an umbrella term for a phenomenon occurring upon a factualchange in sovereign authority over a particular territory. In many circumstances it is unclear as to which rights and duties will flow fromone authority to the other and upon which precise basis. Much will depend upon the circumstances of the particular case, for example whether
what has occurred is a mergerof two states to form a new state; theabsorption of one state into another, continuing state; a cession of territory from one state to another; secession of part of a state to form a
new state; the dissolution or dismemberment of a state to form two or
more states, or the establishment of a new state as a result of decolonisation. The role of recognition and acquiescence in this process is especially
important.
The relevant date of succession is the date at which the successor state
replaces the predecessor state in the responsibility for the international relations of the territory to which the succession relates." This is invariably
the date of independence. However, problems may arise where successive
dates of independence arise with regard to a state that is slowly disintegrating, such as Yugoslavia. The Yugoslav Arbitration Commission notedthat the date of succession was a question of fact to be assessed in the lightof all the relevant circumstance^.'^l o See article 2 of the \'ienna

Conventions of both 1978 and 1983 and Opinion No. 1 of theY~~goslav
Arbitration Commission, 92 ILR, pp. 162,165. See also Guinea-Bissau v. Senegal,
83 ILR, pp. 1,22 and the El Salvador/Hondtlras case, ICJ Reports, 1992, pp. 351, 598; 97
ILR, pp. 266,514.
l 1 See article 2 ( l ) e of the Vienna Convention on Succession of States to Treaties, 1978 andarticle 11 of the Vienna Convention on Succession of States in respect of State Property,
Archives and Debts, 1983. See also Opinion No. 11 of the Yugoslav Arbitration Commission, 96 ILR, p. 719.
l 2 See Opinion No. 11,96 ILR, p. 719. However, see also the Yugoslav Agreement on Succession Issues of Tune 2001,41 ILM, 2002, p. 3. See further below, p. 894.

STATE S U C C E S S I O N

865Continuity and succession
Questions relating to continuity and succession may be particularly difficult.13Where a new entity emerges, one has to decide whether it is a totally
separate creature from its predecessor, or whether it is a continuation of it
in a slightly different form. For example, it seems to be accepted that Indiais the same legal entity as British India and Pakistan is a totally new state.14
Yugoslavia was generally regarded as the successor state to ~erbia,l%ndIsrael as a completely different being from British mandated palestine.16
Cession or secession of territory from an existing state will not affectthe continuity of the latter state, even though its territorial dimensions
and population have been diminished. Pakistan after the independenceof Bangladesh is a good example of this. In such a case, the existing stateremains in being, complete with the rights and duties incumbent uponit, save for those specifically tied to the ceded or seceded territory. Where,
however, a state is dismembered so that all of its territory falls within the
territory of two or more states, these rights and duties will be allocated as
between the successor states. In deciding whether continuity or succession has occurred with regard to one of the parties to the process, one has
to consider the classical criteria of the creation of statehood," together
with assertions as to status made by the parties directly concerned andthe attitudes adopted by third states and international organisations.
This issue has arisen recently with regard to events concerning theSoviet Union and Yugoslavia. In the former case, upon the demise of
the USSR, the Russian Federation took the position that it was the continuation of that state.18 This was asserted particularly with regard tomembership of the UN." Of great importance was the Decision of theCouncil of Heads of State of the Commonwealth of Independent Stateson 21 December 1991 supporting Russia's continuance of the membership of the USSR in the UN, including permanent membership of the
Security Council, and other international organ is at ion^.^^ Although not" See e.g. M. Craven, 'The Problem of State Succession and the Identity of States underInternational Law', 9 EJIL, 1998, p. 142.
l 4 See e.g. Yearbook of the ILC, 1962, vol. 11, pp. 101-3.
l5 See e.g. O'Connell, State Succession, vol. 11, pp. 378-9. See also Arttlkovic v. Rison 784 F.2d

1354 (1986).
O'Connell, State Stlccession, vol. 11, pp. 155-7.
l7 See above, chapter 5, p. 177.
l8 See e.g. R. Mullerson, International Latu, Rights and Politics, London, 1994, pp. 140-5, and
Y. Bluin, 'Russia Takes over the Soviet Union's Seat at the United Nations', 3 EJIL, 1992,
p. 354.
"' ee
31 ILM, 1992, p. 138.
20 Ibid., p. 151.
l6

866

I N T E R N A T I O N A L LAW

all of the instruments produced by the Commonwealth of Independent
States at the end of 1991 were strictly consistent with the continuity prin~ i ~ l eit, is~ clearlthat Russia's claim to be the continuation of the USSR
(albeit within different borders of course) was supported by the otherformer Republics and was accepted by international practice.22A rather
special situation arose with respect to the Baltic states (Estonia, Latvia
and Lithuania), which became independent after the First World War,but were annexed by the Soviet Union in 1940. This annexation had
been refused recognition by some states23and accepted de facto but notde jure by some others.24 The Baltic states declared their independencein August 1 9 9 1 . ~The
~ European Community adopted a Declaration on
27 August 1991 welcoming 'the restoration of the sovereignty and independence of the Baltic states which they lost in 1 9 4 1 : ~The
~ United
States recognised the restoration of the independence of the Baltic stateson 4 September 1991.~'The implication of this internationally accepted
restoration of independence would appear to be that these states do notconstitute successor states to the former USSR and would therefore be
free of such rights and obligations as would be consequential upon suchsucce~sion.~~In contrast to this situation, the issue of Yugoslavia has been more
complicated and tragic. The collapse of the Socialist Federal Republic of" For example, the Minsk Agreeineilt signed by Russia, Belarus and Ukraine stated that the
USSR 'as a subject of international la\+,no longer existed', while the Alma Ata Declaration,
signed by all ofthe former Soviet Republics except for Georgia (which accededin 1993) andthe Baltic states, stated that 'with the establishment of the Commonwealth of Independent
States, the Union of Soviet Socialist Republics ceases to exist: ibid., pp. 147-9.
See e.g, the views expressed by the Secretary of State for Foreign and Commonwealth
Affairs, UKMIL, 63 BYIL, 1992, pp. 639 and 652-5, and the comments by an officialof the FCO submitted to the Outer House of the Court of Session in Scotland in Coreck
Maritirne GrnbH v. Sevrybokholodflot, UKMIL, 64 BYIL, 1993, p. 636. As to French practicerecognising Russia as the continuation of the USSR, see AFDI, 1993, p. 1038. See also L.
Henkin, R. C. Pugh, 0 . Schachter and H. Smit, Ir~terizationalLaw Cases and Materials, 3rdedn, St Paul, 1993, p. 539. Note that there is a distinction between the issue of continuity
or succession to membership of international organisations and continuity or succession
generally. However, the nature and importance of the UN is such that the question ofmembership of that organisation is strong evidence of continuity generally.
" For example the USA: see Oppenheim's Interrlatiorial Law, p. 193. As to French practice,see AFDI, 1993, p. 1038 and Gerbaud v. Mederl 18 ILR, p. 288.
24 See, for example, the UK: see A/C Tallina Laevaullisus v. Tallirla Skipping Co. (1946) 79
LL. R 245 and the statement of the Secretary of State for the Foreign and Commonwealth
Office on 16 January 1991, 183 HC Debs., col. 853.
See Miillerson, International Law, pp. 119-20.
"'ee
UKMIL, 62 BYIL, 1991, p. 558.
" See Mullerson, International Law, p. 121.
See Shalv, 'State Succession Revisited: pp. 56 ff.

"

*'

''

STATE S U C C E S S I O N

867

Yugoslavia (the SFRY) tookplace over several months29as thevarious constituent republics proclaimed independen~e.~'
The process was regarded
as having been completed in the view of the Arbitration Commission on~ugoslavia~lby the time of its Opinion No. 8 issued on 4 July 1 9 9 2 . ~ ~The Commission noted that a referendum had been held in Bosnia andHerzegovina in February and March 1992 producing a majority in favourof independence, while Serbia and Montenegro had a established 'a newstate, the "Federal Republic of Yugoslavia"' on 27 April 1992. The Commission noted that the common federal bodies of the SFRY had ceased
to function, while Slovenia, Croatia and Bosnia had been recognised by
the member states of the European Community and other states and had
been admitted to membership of the U N . The~ ~ conclusion was that theformer SFRY had ceased to exist.34 This was particularly reaffirmed inOpinion No. 10.~'
Nevertheless, the Federal Republic of Yugoslavia (Serbia and Montenegro) continued to maintain that it constituted not a new state, but thecontinuation of the former SFRY. This claim was opposed by the otherformer republics of the S F R Y ~and~ by the international community.37
The Security Council, for example, in resolution 777 (1992) declared that'the state formerly known as the Socialist Federal Republic of Yugoslavia
has ceased to exist' and that 'the Federal Republic of Yugoslavia (Serbia
See generally M. Weller, 'The International Response to the Dissolution of the Socialist
Federal Republic of Yugoslavia', 86 AJIL, 1992, p. 569; 1:Blum, 'UN Membership of the"New" Yugoslavia: Continuity or Break ?', 86 AIIL, 1992, p. 830 and Mullerson, International Law, pp. 125 ff.
'O Slovenia and Croatia on 25 June 1991 (postponed for three months) and Macedonia on
17 September 1991. Bosnia and Herzegovina adopted a resolution on soliereignty on 14
October 1991. The view taken at this point by Opinion No. 1 issued by the Arbitration
Commission, established by the Conference on Yugoslavia convened by the European
Community on 17 August 1991, was that 'the Socialist Federal Republic of Yugoslavia
was in process of dissolution', 92 ILR, p. 166. See also M. Craven, 'The EC Arbitration
Commission on Y~igoslwia',66 BYIL, 1995, p. 333.
Which consisted offive ofthe Presidents of Constitutional Courts in EC countries, chairedby M. Badinter.
" 92 ILR, 17. 199.
On 22 May 1992: see General Assembly resolutions, 461236; 461237 and 461238. Note thatthe 'Former Yugoslav Republic of Macedonia' was admitted to the UN on 8 April 1993:
see Security Council resolution 817 (1993).
j4 92 ILR, 17. 202. See also Opinion No. 9, ihid.,p. 203.
35 Ibid.,p. 206.
' 6 See e.g. EICN.4I19951121 and EICN.4119951122.
37 Note, for example, that both the International Monetary Fund (on 15 December 1992)
and the IVorld Bank (on 25 February 1993) found that the former Yugoslavia had ceased
to exist: see P. R. M'illiams, 'State Succession and the International Financial Institutions:
43 ICLQ, 1994, pp. 776,802-3.
'9

"

"

868

I N T E R N A T I O N A L LAW

and Montenegro) cannot continue automatically the membership of theformer Socialist Federal Republic of Yugoslavia in the United ~ a t i o n s ' . ~ ~However, the Yugoslav position changed in 2000 and it requested admission to the UN as a new member.39
State succession also covers the situation of unification. One methodof unification is by the creation of a totally new state, such as the mergerof the Yemen Arab Republic and the People's Democratic Republic of
Yemen. Under the agreement between the two states of 22 April 1990 theestablishment of the Republic of Yemen was accomplished by way of amerger of the two existing states into a new entity with a new name.40
Unification may also be achieved by the absorption of one state by another in circumstances where the former simply disappears and the latter
continues, albeit with increased territory and population. Such was thecase with Germany.
Following the conclusion of the Second World War, Germany was divided into the US, USSR, UK and French zones of occupation and a special
Berlin area not forming part of any zone." Supreme authority was exercised initially by the Commanders-in-Chief of the Armed Forces of theFour Allied
and subsequently by the three Allied High Commissioners in Bonn, with parallel developments occurring in the Soviet zone.
The Convention on Relations between the Three Powers and the Federal
Republic of Germany (FRG), which came into force in 1955, terminatedthe occupation regime and abolished the Allied High Commission. The
Three Allied Powers retained, however, their rights and obligations withregard to
and relating to 'Germany as a whole, including the" See also Security Council resolution 757 (1992) and General Assembly resolution 4711.

See also the Genocide Conilention case, ICJ Reports, 1993, pp. 3, 13-14; 95 ILR, pp. 1,28-9.
It was so admitted on 1 November 2000: see General Assembly resolution 55112. On 4
February 2003, the name of the country was officially changed from the Federal Republicof Yugoslap-ia to Serbia and Montenegro.
Article 1 of the Agreement declared that 'there shall be established between the State of the
Yemen Arab Republic and the State of the People's Democratic Republic ofYemen . . . a fulland complete union, based on a merger, in wllich the international personality of each ofthem shall be integrated in a single international person called "the Republic of Yemen"':see 30 ILM, 1991, p. 820.
41 See e.g. the Fourth Report of the Foreign Affairs Committee, Session 1989-90, J ~ m e
1990.
Note that part of the Soviet zone was placed under Soviet administration (the city ofKonigsberg, now Kaliningrad and the surrounding area) and the territory of Germany
east of the Oder-Neisse line was placed under Polish administration.
Article 2 of the Agreement on Control Machinery in Germany of 14 November 1944, as
amended by the Agreement of 1 May 1945.
See, in particular, I. Hendry and M. Wood, The Legal Status ofBerlin, Cambridge, 1987.
See also Cmd 8571, 1952 and the Quadripartite Agreement oil Berlin, Cinnd 5135, 1971.
'9

"

"

STATE S U C C E S S I O N

869

reunification of Germany and a peace ~ e t t l e m e n t ' Recognition.~~of theGerman Democratic Republic (GDR) was on the same basis, i.e. as asovereign state having full authority over internal and external affairs
subject to the rights and responsibilities of the Four Powers in respectof Berlin and Germany as a whole.45Accordingly, it was accepted that insome sense Germany as a whole continued to exist as a state in international law.46The question of the relationship of the two German states toeach other and with respect to the pre-1945 German state has occasioned
considerable interest and generated no little complexity, not least because
the Federal German Republic always claimed to be the successor of thepre-1945 Germany.47
On 18 May 1990 a treaty between the two German states was signed
establishing a Monetary, Economic and Social Union. In essence this integrated the GDR into the FRG economic system, with the Deutsche Mark
becoming legal tender in the GDR and with the Bundesbank becoming thecentral bank for the GDR as well as for the F R G . ~On~ 31 August 1990, asecond treaty was signed between the two German states which provided
for unification on 3 October 1990 by the accession of the GDR underarticle 23 of the Basic Law of the Federal Republic. On 12 September 1990
the Treaty on the Final Settlement With Respect to Germany was signedby the two German states and the Four Allied powers." This latter agreement settled definitively matters arising out of the Second World War. It
confirmed the borders of unified Germany as those of the FRG and theGDR (i.e. the post-war Oder-Neisse frontier with Poland), provided fora reduction in the armed forces of Germany and for the withdrawal of
Soviet forces from the territory of the GDR. The Four Allied Powers terminated their rights and responsibilities regarding Berlin and Germany as
a whole so that the united Germany has full sovereignty over its internaland external affairs.''
Article 2 of the Relations Convention. Parallel developments took place in the Soviet zone.
Note the USSR-German Democratic Republic Treaty of 1955.
45 See the Fourth Report, p. 2.
46 Ibid., p. 3.
47 See e.g. Brownlie, Principles, pp. 81, 84-5; M. Whiteman, Digest of International Law,
Washington, 1963, vol. I, pp. 332-8, and F. A. Mann, 'Germany's Present Legal Status
Revisited', 16 ICLQ, 1967, p. 760. See also the decision of the Federal Constitutional
Court of the Federal Republic of Germany in Re Treaty on the Basis o f Relations Betiveer1 the Federal Republic of Gerrnafzy and the Gerrnafz Derrlocratic Republic 1972, 78 ILR,
p. 149.
48 See 29 ILM, 1990, p. 1108.
4 9 e e 29 ILM, 1990, p. 1186.
j0 Note that by the Declaration of 1 October 1990, the Allied Powers suspended all rights
and responsibilities relating to Berlin and to Germany as a whole upon the unification of
44

870

I N T E R N A T I O N A L LAW

The Treaty between the Federal Republic of Germany and the German
Democratic Republic of 31 August 1990 clearly provided that the latter was
simply assimilated into the former. Article 1 of the Treaty stipulated that,'upon the accession of the German Democratic Republic to the Federal
Republic of Germany in accordance with article 23 of the Basic ~ a w "taking effect on 3 October 1990, the Lander of Brandenburg, MecklenburgWestern Pomerania, Saxony, Saxony-Anhalt and ~ h u r i n ~ ishalla j ~become
Lander of the Federal Republic of Germany'. This approach, whereby unified Germany came about by a process of absorption of the constituent
provinces of the former German Democratic Republic into the existingFederal Republic of Germany by way of the extension of the constitutionof the latter, is reinforced by other provisions in the Unification Treaty.
Article 7, for example, provided that the financial system of the FRG 'shallbe extended to the territory specified in article 3' (i.e. the Lander of the former GDR), while article 8 declared that 'upon the accession taking effect,
federal law shall enter into force in the territory specified in article 3'.s3
International practice also demonstrates acceptance of this approach.54
No state objected to this characterisation of the process.55In other words,
the view taken by the parties directly concerned and accepted by the international community demonstrates acceptance ofthe unification as one of
the continuity of the Federal Republic of Germany and the disappearance
or extinction of the German Democratic Republic.
Germany, pending the entry into force of the Treaty on the Final Settlement: see Annex 2of the Observations by the Government to the Fourth Report, October 1990, Cm 1246.
j1 This provided that the Basic Law was to apply in Greater Berlin and specified Lander(forming the Federal Republic of Germany), while 'in other parts of Germany it shall be
put into force on their accession: This method had been used to achieve the accession of
the Saarland in 1956.
" 1.e. the constituent provinces of the German 1)emocratic Republic.
'? Note also that under article 11, treaties entered into by the Federal Republic of Germany
would continue and extend to the Liirtder of the former German Democratic Republic,
while under article 12, the question of the continuation, amendment or expiry of treaties
entered into by the former German Democratic Republic was to be discussed individuallywith contracting parties: see below, pp. 876 ff.
j4 Such as theEuropean Community. See, for example, GATT document Ll6759 of31 October
1990 in which the Commissioil of the European Community stated that Germany had
become united by way of the accession of the GDR to the FRG. See generally T. Oeter,'German Unificatioil and State Succession', 51 ZaoRV, 1991, p. 349; J. Frowein, 'Germany
Reunited', ibid., p. 333, and R. M'.Piotrowicz and S. K. N. Blay, The Uilificatioi~of Germany
in Internatioilal and Doinestic Law, Amsterdam, 1997. See also UK Foreign Office affidavit,
UKMIL, 68 BYIL, 1997, p. 520.
See also Oppenheiin's International Law, p. 210.

"

STATE S U C C E S S I O N

Succession to t r e a t i e ~ " ~The importance of treaties within the international legal system requires
no repetition." They constitute the means by which a variety of legal
obligations are imposed or rights conferred upon states in a wide range ofmatters from the significant to the mundane. Treaties are founded upon
the pre-existing and indispensable norm of pacta sunt servanda or theacceptance of treaty commitments as binding. Treaties may fall within thefollowing categories: multilateral treaties, including the specific categoryof treaties concerning international human rights; treaties concerned withterritorial definition and regimes; bilateral treaties; and treaties that aretreated as 'political' in the circumstances.
The rules concerning succession to treaties are those of customaryinternational law together with the Vienna Convention on Succession ofStates in Respect of Treaties, 1978, which came into force in 1996 andwhich applies with regard to a succession taking place after that date.''As far as devolution agreements are concerned, article 8 of the Convention provides that such agreements of themselves cannot affect thirdstates and this reaffirms an accepted principle, while article 9 , dealing
with unilateral declarations, emphasises that such a declaration by the
successor state alone cannot of itself affect the rights and obligations of
the state and third states. In other words, it would appear, the consent
of the other parties to the treaties in question or an agreement with thepredecessor state with regard to bilateral issues is required.
Categories of treaties: territorial, political and other treaties

Treaties may for succession purposes be generally divided into three categories. The first relates to territorially grounded treaties, under whichrights or obligations are imposed directly upon identifiable territorial
units. The prime example of these are agreements relating to territorial definition. Waldock, in his first Report on Succession of States andj6

Note particularly the work ofthe InternationalLaw Commission on this topic: see Yearbookof the International Law Commission, 1974, vol. 11, part 1, pp. 157 if., and the five Reportsof Sir Humphrey Waldock (ibid., 1968, vol. 11, p. 88; 1969 vol. 11, p. 45; 1970, vol. 11,
p. 25; 1971, vol. 11, part 1, p. 143 and 1972, vol. 11, p. 1) and the Report of Sir Francis Vallat(ibid., 1974, vol. 11, part 1, p. 1). See also the International Law Association, The Ejfectof Independence oil Treaties, London, 1965, and A. Aust, Modern Treaty Law and Practice,
Cambridge, 2000, chapter 22.

" See above, chapter 16.

j8

See article 7.

872

I N T E R N A T I O N A L LAW

Governments in Respect of Treaties in 1968, declared that 'the weightboth of opinion and practice seems clearly to be in favour of the view thatboundaries established by treaties remain untouched by the mere fact ofa succession. The opinion of jurists seems, indeed, to be ullanilnous on
the point.. . [and] state practice in favour of the continuance in forceof boundaries established by treaty appears to be such as to justify theconclusion that a general rule of international law exists to that effect',59
while Bedjaoui has noted that 'in principle the territory devolves upon
the successor State on the basis of the pre-existing boundaried6'
For reasons relating to the maintenance of international stability, thisapproach has been clearly supported by state practice. The Latin American concept of utipossidetis juris, whereby the administrative divisions of
the former Spanish empire were to constitute the boundaries of the newly
independent states in South America in the first third of the last century was the first internationally accepted expression of this approach.61
It was echoed in US practice62 and explicitly laid down in resolution 16of the meeting of Heads of State and Government of the Organisationof African Unity 1964, by which all member states pledged themselves torespect colonial borders.63 The principle of succession to colonial borders was underlined by the International Court in the Burkina Faso/Malicase.64The extension of the principle of uti possidetis from decolonisation to the creation of new states out of existing independent states is
supported by international practice, taking effect as the transformationj9

Yearbook of the Irrterrratior~alLaw Conrmission, 1968, uol. 11, pp. 92-3.

" Ibid., p. 112.

See, for example, the Colombia-Venezuela arbitral award, 1 RIAA, pp. 223, 228 and the
Beagle Cliannel award, 52 ILR, p. 93. See also A. 0 . Cukwurah, Tlie Settlemerit ofBoundary
Disputes in International Law,Manchester, 1967, p. 114; O'Connell, State Succession, ~ o l .
11, pp. 273 ff., and P. De La Pradelle, La Frontitre, Paris, 1928, pp. 86-7.
See the view of the US Secretary of State in 1856 that the US regarded
it 'as an established"principle of the public law and of international right that when a European colony inAmerica becomes independent it succeeds to the territorial limits of the colony as it stoodin the hands of the present country', Manning's Diplomatic Correspoizdence, vol. 111 (GreatBritain), doc. 2767, cited in Cukwurah, Settlenient, p. 106.
See, for example, M. N. Shaw, Title to Territory iiz dfrica: International Legal Issues, Oxford,
1986, pp. 185-7, and other works cited in chapter 9, p. 446.
64 ICJ Reports, 1986, pp. 554, 565; 80 ILR, pp. 440, 469-70. See also the Arbitration Commission on Yugoslavia, which noted in Opinion No. 3 with respect to the status of theformer internal boundaries between Serbia on the one hand and Croatia and Bosnia andHerzegovina on the other, that 'except where otherwise agreed, the former boundaries
beconle frontiers protected by international law. This conclusion follows from the principle of respect for the territorial status quo and in particular, from the principle of uti
possidetis. Utipossidetis . . . is today recognised as a general principle: 92 ILR, pp. 170, 171.

STATE S U C C E S S I O N

873of administrative boundaries into international boundaries generally.65
Of course, much will depend upon the p articular situation, including theclaims of the states concerned and the attitude adopted by third states andinternational organisations, particularly the United Nations. This principle regarding the continuity of borders in the absence of consent to thecontrary is reinforced by other principles of international law, such as theprovision enshrined in article 62(2) of the Vienna Convention on the Law
of Treaties, which stipulates that a fundamental change in circumstances
may not be invoked as a ground for terminating or withdrawing from atreaty that establishes a b o ~ n d a r y . ~In' addition, article 11 of the Vienna
Convention on Succession to Treaties, although in terminology which is
cautious and negative, specifies that
A succession of States does not as such affect:(a) a boundary established by treaty; or(b) obligations and rights established by a treaty and relating to the regimeof a boundary.

The International Court dealt with succession to boundary treaties
generally in the Libya/Chad case, where it was declared that 'once agreed,
the boundary stands, for any other approach would vitiate the fundamental principle of the stability of boundaries, the importance of which
has been repeatedly emphasised by theMore particularly, theCourt emphasised that 'a boundary established by treaty thus achieves apermanence which the treaty itself does not necessarily enjoy. The treaty
can cease to be in force without in any way affecting the continuance ofthe boundary.. .when a boundary has been the subject of agreement,
the continued existence of that boundary is not dependent upon thecontinuing life of the treaty under which the boundary is agreed.'68 It
is particularly important to underline that the succession takes place,therefore, not as such to the boundary treaty but rather to the boundary
See also article 5 of the Minsk Agreement establishing the Commonwealth of Independent
States of 8 December 1991 and the Alma Ata Declaration of 21 December 1991, which
reaffirmed the territorial integrity of the former Republics of the USSR. Note also that
under the Treaty on the General Delimitation ofthe Common State Frontiers of29 October
1992, the boundary between the two new states of the Czech Republic and Slovakia,
emerging out of Czechoslovakia on 1 Tanuary 1993, was to be that of the administrative
border existing between the Czech and Slovakparts of the former state. See further above,
chapter 9, p. 446.
66 See above, chapter 16, p. 855.
67 ICJ Reports, 1994, pp. 6, 37; 100 ILR, pp. 1, 36.
Ibid.

874

I N T E R N A T I O N A L LAW

as established by the treaty. The Tribunal in the Eritrea/Yemen case emphasised that boundary and territorial treaties made between two parties constituted a special category of treaties representing a 'legal reality
which necessarily impinges upon third states, because they have effect ergu
ornne~'.~~
Territorially grounded treaties extend somewhat beyond the establishment of boundaries into the more controversial area of agreements creating other territorial regimes, such agreements being termed 'localised'or 'real' or 'dispositi~e'.'~Examples of such arrangements might include
demilitarised zones, rights of transit, port facilities and other servitudes
generally.71Despite some reservations by members of the International, ~ ~ 12 of the Vienna ConvenLaw om mission^^ and g o ~ e r n m e n t sarticle
tion provides that a succession of states does not as such affect obligations
or rights relating to the use of any territory or to restrictions upon its use
established by a treaty for the benefit of any foreign state, group of states or
all states and considered as attaching to the territory in question. The International Court declared that article 12 reflected a rule of customarylaw
in addressing the issue of territorial regimes in the Gabtikovo-Nagyinaros
Project case and confirmed that treaties concerning water rights or navigation on rivers constituted territorial treatie~.'~It also noted that since the1977 treaty in question in that case between Hungary and Czechoslovakia
established inter alia the navigational regime for an important sectionof an international waterway, a territorial regime within the meaning ofarticle 12 was created.75
Political or 'personal' treaties establish rights or obligations deemed tobe particularly linked to the regime in power in the territory in question
114 ILR, pp. 1,48.
See O'Connell, State Succession, vol. 11, pp. 231 ff. See also Udokang, Succession, pp. 327 ff.
See Shaw, Title to Territory, pp. 244-8. See also the Free Zones case, PCIJ, Series AIB, No.
46, 1932, p. 145; 6 AD, pp. 362, 364 and the Aaland Islands case, LNOI, Sp. Supp. No. 3,
1920, p. 18. See above, chapter 9, p. 459, and Yearbook o f the ILC, 1974, vol. 11, pp. 157
and 196 ff.Note that, by article 12(3),the provisions of article 12 do not apply to treaties
providing for the establishment of foreign military bases on the territory concerned. See
further Brownlie, Principles, p. 664, and O'Connell, State Succession, vol. 11, pp. 12-23 andpp. 231 ff.
72 See, for example, Yearbook of the ILC, 1974, vol. I, pp. 206-7.
" See, for example, U N Conference on Successiori of States in Respect of Treaties, 1977, Comments of Governments (AIConf.8015), pp. 145, 153, 161, 167, 170, 171 and 173.
'"CJ
Reports, 1997, pp. 7, 72; 116 ILR, p. 1.
7' Ibid., pp. 71-2. See also J. Klabbers, 'Cat on a Hot Tin Roof: The IVorld Court, State
Succession and the Gabcikovo-Nagyrnaros case: 11 Leiden Journal of International Latu,
1998, p. 345.
h9
'O

"

STATE S U C C E S S I O N

875and to its political orientation. Examples of such treaties would include
treaties of alliance or friendship or neutrality.76Such treaties do not bind
successor states for they are seen as exceptionally closely tied to the natureof the state which has ceased to exist. However, it is not at all clear what
the outer limits are to the concept of political treaties and difficulties overdefinitional problems do exist. Apart from the categories ofterritorial andpolitical treaties, where succession rules in general are clear, other treaties
cannot be so easily defined or categorised for succession purposes andmust be analysed separately.

Succession to treaties generally
Practice seems to suggest 'a tendency'77 or 'a general i n ~ l i n a t i o n ' ~ " ~succession to 'some categories of multilateral treaties'79 or to 'certain
multilateral convention^'.^^ However, this 'modern-classical' approach isdifficult to sustain as a general rule of comprehensive a p p l i ~ a b i l i t ~One.~'
simply has to examine p articular factual situations, take note of the claims
made by the relevant states and mark the reactions of third states. In
the case of bilateral treaties, the starting-point is from a rather different
perspective. In such cases, the importance of the individual contractual
party is more evident, since only two states are involved and the treaty isthus more clearly reciprocal in nature. Accordingly, the presumption is
one of non-succession, depending upon all the particular circumstancesof the case. Practice with regard to the US, Panama, Belgium and Finland
supports the 'clean slate' a p p r ~ a c h . ' ~Absorption and merger
Where one state is absorbed by another and no new state is created (suchas the 1990 accession to the Federal Republic of Germany of the Lander of
the German Democratic Republic), the former becomes extinct whereas
the latter simply continues albeit in an enlarged form. The basic situationis that the treaties of the former, certainly in so far as they may be deemed
7 6 See, for example, O'Connell, State St~ccessiotl,~01.11,pp. 2 , 80 and 136, and Oppenheinz'sInternational Law, p. 211.
77 O'Connell, State Stlccession, vol. 11, p. 212.

'"dokang,
Succession, p. 225.
80 Udokang, Succession, p. 225.
" But see Jenks' view that multilateral law-making treaties devolve upon successor states,'State Succession in Respect of Law-making Treaties', 29 BYIL,1952, pp. 105, 108-10.
82 See, for example, Udokailg, Succession, pp. 412-15.
" O'Connell, State Succession, vol. 11, p. 213.

876

I N T E R N A T I O N A L LAW' p ~ l i t i c a l ' ,die~ ~ with the state ~ o n c e r n e d , 'although~territorial treaties
defining the boundaries ofthe entity absorbed will continue to define suchboundaries. Other treaties are also likely to be regarded as at an end.85
However, treaties of the absorbing state continue and will extend to theterritory of the extinguished state. These principles are, of course, subject
to contrary intention expressed by the parties in question. For example, inthe case of German unification, article 11 coupled with Annex I of the Unification Treaty, 1990 excluded from the extension of treaties of the Federal
Republic of Germany to the territory of the former German Democratic
Republic a series of treaties dealing primarily with NATO matters.
Article 31(1) of the Vienna Convention on Succession to Treaties provides that where two or more states unite and form one successor state,treaties continue in force unless the successor state and the other stateparty or states parties otherwise agree or it appears that this would beincompatible with the object and purpose of the treaty or would radicallychange the conditions for its operation. Article 3 l ( 2 ) provides that suchtreaties would apply only in respect of the part of the territory of thesuccessor state in respect of which the treaty was in force at the date of
the succession of states. This is so unless the successor state makes a notification that the multilateral treaty in question shall apply in respect of its
entire territorys6 or, if the multilateral treaty in question is one in which
by virtue either of its terms or by reason of the limited number of participants and its object and purpose the participation of any other state must
be considered as requiring the consent of all the parties," the successor
state and the other states parties otherwise agree. This general principle
would apply also in the case of a bilateral treaty, unless the successor state
and the other state party otherwise agree.88" See here, for example, Oppenheirn's Internatlorla1 Law, p. 211; Oeter, 'German Unification',p. 363, and Koskenniemi and Lehto, 'La Succession', p. 203.
S5 Ibid., pp. 212-13.
86 Unless it appears from the treaty or is otherwise established that the application of thetreaty in respect ofthe entire territory ofthe successor state would be incompatible with theobject and purpose of the treaty or would radically change the conditions for its operation(article 31(3)).
Article 17(3).
See the examples ofthe union of Egypt and Syria to form the United Arab Republic between
1958 and 1961 and the union of Tanganyika and Zanzibar in 1964, where the treaties of
the component territories continued in force within those territorial limits: see O'Connell,
State Succession, vol. 11, pp. 71-8. The article 31 situation has to be distinguished from thesituation involving a 'newly independent state', see article 29 and below, p. 881, and fromthe article 15 situation, where part of the territory of one state is transferred to anotherstate, below, p. 878.

'"Oppunheirn's blterrzational Law, p. 211.
''

STATE S U C C E S S I O N

877While these provisions bear some logic with regard to the situation
where two states unite to form a new third state,89 they do not reallytake into account the special circumstances of unification where one state
simply takes over another state in circumstances where the latter is extinguished. In these situations, the model provided by German unification
appears to be fully consistent with international law and of value as aprecedent. Article 11 of the Unification Treaty of 31 August 1990 provided that all international treaties and agreements to which the FRG
was a contracting party were to retain their validity and that the rights
and obligations arising therefrom would apply also to the territory of the
GDR." Article 12 provided that international treaties of the GDR were
to be discussed with the parties concerned with a view to regulating or
confirming their continued application, adjustment or expiry, taking into
account protection of confidence, the interests of the state concerned, thetreaty obligations of the FRG as well as the principles of a free, democraticorder governed by the rule of law, and respecting the competence of theEuropean Communities. The united Germany would then determine its
position after such consultations. It was also stipulated that should theunited Germany intend to accede to international organisations or othermultilateral treaties of which the GDR, but not the FRG, was a member,agreement was to be reached with the respective contracting parties andthe European Communities, where the competence of the latter was affected. The situation thus differs from the scenario envisaged in article 31of the 1978 treaty.91
In the case of mergers to form a new third state, the formulation inarticle 31 is more relevant and acceptable. Practice appears to support
that approach. For example, in the cases of both the Egypt-Syria merger
to form the United Arab Republic in 1 9 5 8 and~ ~ the union of Tanganyika
and Zanzibar to form Tanzania in 1964,'~the continuation of treaties in
But see above, pp. 871 ff.,with regard to boundary treaties and below, p. 885, regarding
human rights treaties.
90 However, as noted, Annex I to the Treaty provided that certain listed treaties are not toapply to the territory ofthe formerGDR. These treaties relate in essence to NATO activities.
9 1 It should also be noted that the Third USRestoternerit ofForeigr1 Relatiorls Latv, Washington,
1987, p. 108, provides that 'when a state is absorbed by another state, the international
agreements o f the absorbed state are terminated and the international agreements o f theabsorbing state become applicable to the territory o f the absorbed state'.
92 See O'Connell, State Succession, vol. 11, pp. 71 ff.,and D. Cottran, 'Some Legal Aspects o f
the Formation o f the United Arab Republic and the United Arab States', 8 ICLQ, 1959,
p. 346.
See OIConnell,State Succession, vol. 11, pp. 77 f f .
8y

"

878

I N T E R N A T I O N A L LAW

the territories to which they had applied before the respective mergers
was stipulated.
Cession of territory from one state to another
When part of the territory of one state becomes part of the territory of
another state, the general rule is that the treaties of the former cease to
apply to the territory while the treaties of the latter extend to the territory.
Article 15 of the Vienna Convention on Succession of States to Treaties,
dealing with this 'moving-frontiers' rule,94 provides for this, with theproviso that where it appears from the treaty concerned or is otherwise
established that the application of the treaty to the territory would beincompatible with the object and purpose of the treaty or would radicallychange the condition for its operation, this extension should not happen.
This is basically consistent with state practice. When, for example, theUS annexed Hawaii in 1898, its treaties were extended to the islands andBelgium was informed that US-Belgium commercial agreements werethenceforth to be applied to Hawaii also.95Similarly it was held that after
1919, German treaties would not apply to Alsace-Lorraine, while Frenchtreaties would thereafter be extended to that territ~ry.'~
Article 15 would
therefore seem to reiterate existing custom,y7although there have been
indications to the contrary in the past.98
Secession from an existing state to form a new state or states
The factual situations out of which a separation or dismemberment takes
place are many and varied. They range from a break-up of a previously
created entity into its previous constituent elements, as in the 1961 dissolution of the United Arab Republic into the pre-1958 states of Egypt
and Syria or the dissolution of the Federation of Mali, to the complete
fragmenting of a state into a variety of successors not being co-terminous
with previous territorial units, such as the demise of Austria-Hungary
in 1919." Where there is a separation or secession from an independent
state which continues, in order to create a new state, the former continues as a state, albeit territorially reduced, with its international rights" Yearbook of the ILC, 1974, vol. 11, p. 208.
95 See e.g. O'Connell, State Stlccession, vol. 11, 1717. 377-8.

96

Ibid., 17. 379.

'' The exception to the 'moving treaty-frontiers' rule reflects the concept that 'political"treaties' would not pass, ibid., p. 25. See further above, p. 869, with regard to the reunification of Germany in 1990. See also article IX of Annex 1 of the Anglo-Chinese Agreement,
1984 on Hong Kong, below, p. 912.
See, for example, O'Connell, State Succession, vol. 11, pp. 374 ff.
"id., chapter 10.

"

STATE S U C C E S S I O N

879and obligations intact."' With regard to the seceding territory itself, theleading view appears to be that the newly created state will commence
international life free from the treaty rights and obligations applicable toits former sovereign.lO'Reasons for this include the important point that
it is difficult to maintain as a rule of general application that states thathave not signed particular treaties are bound by them.
State practice has essentially reinforced the basic proposition. When
Belgium
seceded from the Netherlands in 1830, it was deemed to startinternational life with 'a clean slate' and the same approach was adopted
with regard to the secession of Cuba from Spain in 1898 and that ofPanama from Colombia in 1903. Similarly, when Finland seceded fromthe Russian Empire after the First World War, the view taken by the UK
and the US was that Finland was not bound by the existing Russian treaties
dealing with the territory.lo2
While essentially this is the position taken by the Vienna Convention
on Succession to Treaties with regard to decolonised territories (discussed
in the following subsection), article 34 provides that 'any treaty in force
at the date of the succession of states in respect of the entire territory of
the predecessor state continues in force in respect of each successor state
so formed'. Any treaty which applied only to part of the territory of thepredecessor state which has become a successor state will continue in force
in respect of the latter only. These provisions will not apply if the statesconcerned otherwise agree or if it appears from the treaty or is otherwise
established that the application of the treaty in respect of the successor
state would be incompatible with the object and purpose of the treaty or
would radically change the conditions for its operation.lo3
As far as the predecessor state is concerned in such a situation (assuming the predecessor state remains in existence), article 35 provides
that existing treaties remain in force after the succession in respect of
'0°
lo'

lo'

lo'

Save, of course, with regard to those that relate solely to the seceding territory.
See O'Connell, State Succesrioiz, rol. 11, pp. 88 ff., and Oppenkeiin's Iizterizutional Law,p. 222. See also the Third LTSRestatenteilt ofForeign Relations Law, p. 108, which provides
that ' m e n part of a state becomes a new state, the new state does not succeed to theinternational agreements to which the predecessor state was party, unless, expressly or
by implication, it accepts such agreements and the other party or parties thereto agree or
acq~liesce.'
Yearbook of tlze Irlterrlational Laiv Cornrrzission, 1974, vol. 11, part 1, p. 263. See also
O'Connell, State Succession, vol. 11, pp. 96-100, and Oppenheim's International Law,p. 222. See also Yearbook o f the ILC, 1974, vol. 11, part 1, pp. 265-6, and Brownlie,
Principles, p. 668.
See Yearbook of the ILC, 1974, vol. 11, pp. 260 ff.

880

I N T E R N A T I O N A L LAW

the remaining territory, unless the parties otherwise agree or it is established that the treaty related only to the territory which has separated
from the predecessor state or it appears from the treaty or is otherwise
established that the application of the treaty in respect of the predecessor
state would be incompatible with the object and purpose of the treaty or
would radically change the conditions for its operation.
The approach in the Vienna Convention was adopted on the basis of
the International Law Commission draft which had taken the position
that 'in modern international law having regard to the need for the maintenance of the system of multilateral treaties and of the stability of treaty
relationships, as a general rule the principle of de jure continuity should
apply:lo4 This may have been an attempt to distinguish decolonised territories (termed 'newly independent states' in the Convention) from otherexamples of independence, but it constitutes a rather different approachfrom the traditional one and the formulation in article 34 cannot betaken as necessarily reflective of customary law. Much will depend upon
the views of the states concerned.
What can be said is that the requirements of international stability incertain areas in particular will stimulate states generally to encourage anapproach of succession to multilateral obligations by the newly independent secessionist states. The Guidelines on Recognition of New States in
Eastern Europe and the Soviet Union adopted by the European Community on 16 December 1991 certainlynoted that the common position ofEC
member states on recognition required inter alia 'acceptance of all relevant
commitments with regard to disarmament and nuclear non-proliferation
as well as to security and regional stability'.'05 But, of course, conditions
attached to the essentially political process of recognition are not the sameas accepting consequences arising out of succession itself. However, there
were certainly indications that the United States was taking the position
that Russia and the non-Baltic successor states to the USSR should be regarded as bound by some at least of the Soviet treaties.lo6This approach
was clearly developed in view of the political need to ensure continuity
lo4 Yearbook of the ILC, 1974, vol. 11, part 1, p. 169. See also UKMIL, 69 BYIL, 1998, p. 482.
lo'

See 92 ILR, pp. 173-4.

lo6 See Miillerson, 'Continuity'. See also T. Love, 'International Agreement Obligations afterntStates Practice and its Consistency with Inthe Soviet Union's Break-up: C ~ ~ r r eUnited
ternational Law', 26 Vanderbilt Journal of TransnationulLa~v,1993, pp. 373,396,who notesthat the US practice of arguing that treaties are binding upon the republics (apart froill
the special case of Russia) is inconsistent with the views expressed in the US Restatement,
ibid., p. 410. The views of the US Restatement are referred to above, p. 879.

STATE S U C C E S S I O N

881with regard to arms control agreements and mechanism^.'^' Of course,
the impact of Russia constituting the continuance of the Soviet Union is
to maintain in force for the former the obligations of the latter, but there
was concern about the control of the nuclear and other weapons subject
to treaty regulation which were now situated in the successor states tothe USSR. The signing of agreements with the major successor states appears to have mitigated the strength of this particular approach. Indeed,
it should be noted that separate agreements with the nuclear successor
states of Ukraine, Belarus and Kazakhstan were apparently required inorder to ensure the compliance of those states with regard to the arms
control treaties binding upon the Soviet ~ n i o n , "although~these states
had agreed generally to be bound by international obligations derivingfrom treaties signed by the USSR."~The US and Ukraine agreed by anexchange of notes on 10 May 1995 that in so far as bilateral treaties between them were concerned, article 34 of the Convention would be taken
as 'a point of departure: A treaty-by-treaty review by the two states was
conducted, as a result of which it was decided that some treaties had become obsolete, others would not be applied and others, specifically listed
in the Annex to the note, were to be regarded as still in f ~ r c e . " ~Whether in view of the greatly increased network of multilateral treaties
and the vastly enhanced interdependence of states founded and manifested upon such agreement, it is possible to say that the international
community is moving towards a position of a presumption of continuity,
is in reality difficult to establish. Certainly the potentially disruptive effectof the creation of new states needs to be minimised, but it is far too early
to be able to declare that continuity or a presumption of continuity is now
the established norm.
'Newly independent states'
The post-Second World War period saw the dismantling of the overseas
European empires. Based in international legal terms upon the principleof self-determination, which was founded upon a distinction between
lo'Ibid., at pp. 398-401.

lo8 See 'US-CIS Protocol to START Treaty', 86 AJIL, 1992, p. 799. See also the Agreement o n

Joint Measures with Respect to Nuclear Weapons, 31 ILM, 1992, p. 152, and Miillerson,
Irlterrlational Law,pp. 150-2.
lo' Alma Ata Declaration, 21 December 1991,21 ILM, 1992, pp. 148, 149.
'lo See 89 AJIL, 1995, p. 761. The note specifically excluded matters concerning succession
to USA-USSR bilateral arms limitatioil and related agreements, with regard to which
special mechanisms had been established.

882

I N T E R N A T I O N A L LAW

such territories and the metropolitan authority, decolonisation produced
a number of changes in the international legal system."' The Vienna
Convention on Succession to Treaties sought to establish a special category
relating to decolonised territories. These were termed 'newly independent
states' and defined in article 2(1)f as successor states 'the territory ofwhich
immediately before the date of the succession of states was a dependent
territory for the international relations of which the predecessor state was
responsible'.'12 Article 16 laid down the general rule that such states were
not bound to maintain in force or to become a party to any treaty byreason only of the fact that the treaty had been in force regarding theterritory in question at the date of succession. This approach was deemed
to build upon the traditional 'clean slate' principle applying to new statescreated out of existing states, such as the United States and the Spanish
American Republics when they had obtained independence.'" This was
also consistent with the view taken by the UN Secretariat in 1947 when
discussing Pakistan's position in relation to the organisation, where it wasnoted that 'the territory which breaks off, Pakistan, will be a new state; itwill not have the treaty rights and obligations of the old state'.""It should be noted that the provision dealing with bilateral treaties wasmore vigorously worded, no doubt because the personal and reciprocal
nature of such treaties is that more obvious, or in the words of the International Law Commission 'dominant', and also because, unlike the caseof multilateral treaties, there is no question of the treaty coming into force
between the new state and the predecessor state.'" While state practicedemonstrates some continuity in areas such as air services agreements
and trade agreements, the Commission felt that this did not reflect a customary rule, as distinct from the will of the states concerned, and thatthe fundamental rule with regard to bilateral treaties was that their continuance in force after independence was a matter for agreement, express
or tacit, between the newly independent state and the other state party
which had contracted with the predecessor state."6 Article 24 notes that abilateral treaty in force for the territory in question is considered to be in
11'

See above, chapter 5, p. 225.

112 See also the Vienna Convention on Succession to State Property, Archives and Debt, 1983,

article 2(l)e.
See Yearbook o f the ILC, 1974, vol. 11, part 1, p. 211. See also, as to the theoretical basis of
the 'clean slate' principle, the Separate Opinion of Judge Weramantry, Application of the
Genocide Convention (Bosnia and Herzegovina v. Yugoslavia), ICJ Reports, 1996, pp. 595,
644.
1 1 4 Ibid.
11' Yearbook of the ILC, 1974, vol. 11, part 1, p. 237.
Ibid., pp. 237-9.
11'

STATE S U C C E S S I O N

883

force for the newly independent state and the other state party where theyexpressly so agree or by reason of their conduct they are to be considered
as having so agreed.ll7
There is, of course, a distinction between a new state being obliged to
become a party to a treaty binding the predecessor state and having thefacility or perhaps even the right to become a party to that treaty. Practiceshows that new states may benefit from a 'fast track' method of participating in treaties. For example, new states are not required to adhere
to the formal mechanism of accession as if they were existing non-party
statesH8 and article 17 of the Vienna Convention provides that a 'newly
independent state' may by a notification of succession establish its status
as a party to a multilateral treaty which at the date of succession was inforce in respect of the territory to which the succession relates, unless it
appears from the treaty or is otherwise established that the application of
the treaty in respect of the newly independent state would be incompatible with the object and purpose of the treaty or would radically change
the conditions of its operation. In addition, where it appears from thenature of the treaty itself that the participation of any other state would
require the consent of all the parties, such consent must be forthcoming forthe new state to participate.'19
The 'clean slate' principle has also in practice been mitigated by theterms of the process by which many colonies achieved independence. A
number of colonial powers, particularly the United Kingdom, adopted thepractice of concluding devolution agreements by which certain treaties
signed on behalf of the territory becoming independent continued toapply to the newly independent state.I2OWhile such agreements would beconsidered res inter alios with regard to third states, they were of value inestablishing the appropriate framework for relations between the former
colonial power and the new state. Other newly independent states adopted
the practice of making unilateral declarations by which they made known
their views as to treaty succession. Such unilateral declarations often took
the form of specifying that treaties would continue in force for an interim
The above rules also apply to newly independent states (as defined in the Convention)
formed from two or more territories: see article 30 (referring to articles 16-29). n%ere atreaty affects one or more but not all of the territories in question, there is a presumptionthat on succession it will apply to the newly independent state, ibid. See also Re Bottali,
78 ILR, p. 105 and M 1.. Federal Department of Justice and Police, 75 ILR, p. 107.
'I8 See Oppenheim's International Law, p. 229.
""rticle
17(3).See also article 27(2).
120 See, for example, O'Connell, State Succession vol. 11, pp. 352 ff., and Yearbook of the ILC,
1974, vol. 11, part 1, pp. 182-7. See also article 8 of the Vienna Convention.
'I7

884

I N T E R N A T I O N A L LAW

period during which time they would be reviewed,12' but they could notin themselves, of course, alter treaty relationships with third states.122
Devices such as devolution agreements and unilateral declarations wereof value, however, in mitigating the effects that an absolute 'clean slate'
approach might otherwise have had.
Dissolution of states
Where an existing state comes to an end as an international person and is
replaced by two or more other states, it is accepted that political treaties will
not continue but that territorially grounded treaties will continue to attach
to the territories in question now subject to new sovereign arrangements.
The situation with regard to other treaties is more ~ n c e r t a i n . ' ~ ~State practice concerning dissolution has centred to all intents and purposes upon the dismemberment of 'unions of state', that is the ending ofwhat had originally been a union of two international persons. Examples would include Colombia in 1829-31; NorwayISweden in 1905; theUnited Arab Republic in 1960; the Mali Federation in 1960; the Federationof Rhodesia and Nyasaland in 1 9 6 3 ' ~and~ the Czech and Slovak Federal
Republic in 1992.12"t is difficult to deduce clear rules of state succession
from these episodes since much depended upon the expressed intentionsof the states concerned. Perhaps a presumption in favour of continuity oftreaties with regard to each component part may be suggested, but this issubject to expressed intention to the contrary.12''" See, for a survey of practice, Yearbook o f t h e ILC, 1974, vol. 11, part 1, py. 187-93.
'" See article 9 of the Vienna Convention.
'" See, for example, O'Connell, State Sllccession, vol. 11, pp. 219-20.
See Yearbook ofthe ILC, 1974, vol. 11, part 1, pp. 260-3, and O'Connell, State Szlccessio~z,
vol. 11, pp. 164 ff.
This state consisted oftwo distinct units, the Czech Repu~blicand the SlovakRepublic, eachwith their orvn parliament. The Constitutional Law on the Dissolution of the Czech andSlovak Republic of 25 November 1992 provided for the dissolution of that state and forthe establishment of the successor states of the Czech Republic and Slovakia, At the sametime, the two republics issued a joint declaration informing the international communitythat the two successor states rvould succeed to all international treaties to which thepredecessor state had been a party and that where necessary negotiations would takeplace, particularly where the impact upon the two republics differed: see J. Malenovsky,'Problemes J~lridiquesLiees i la Partition de la Tchecoslovaquie, y compris Trace de la
Frontiere: AFDI, 1993, p. 305.
""hecase of the dissolution of the A~~stro-Hungarian
Empire in 1918 was a special case,since it could be regarded as a dissolution of the union of Austria and H~ulgary(where
the latter, unlike the former, asserted continuity) coupled with the secession of territories
that either joined other states, such as Romania, or were merged illto new states, such as
Poland or Czechoslovakia.

STATE S U C C E S S I O N

885

Article 34 of the Vienna Convention provides for treaties in force forall or part of the predecessor state to continue in force with regard to thespecific territory unless the states concerned otherwise agree or it appears
from the treaty or is otherwise established that the application of the treaty
would be incompatible with the object and purpose of the treaty or would
radically change the conditions of its operation. Whether this constitutes
a rule of customary law also is unclear, but in the vast majority of situations the matter is likely to be regulated by specific agreements. Upon
the dissolution of the Czech and Slovak Federal Republic, for example, on
1 January 1993, the UK took the position that, as appropriate, treaties andagreements in force to which the UK and that state were parties remainedin force as between the UK and the successor states.'27 The question of
Yugoslavia was more complicated in that until 2000, the Federal Republicof Yugoslavia maintained that it was a continuation of the former Socialist Federal Republic of Yugoslavia, while the other former republics
maintained that the former SFRY had come to an end to be replaced by aseries of new states.
The issue of article 34 and automatic succession arose in the Applicatiotzof the Genocide Convention (Bosnia and Herzegovina v. Yugoslavia) case,where Bosnia argued that the rule applied with regard to the Genocide
Convention andYugoslavia denied this. The Court, however, didnot makea determination on this point.12sThe issue arose again in the Gabi-ikovoNagymaros Project case, where the parties argued as to whether the rule ofautomatic succession applied or not. The Court similarly declined to makea determination and focused instead on the significance of article 1 2 . l ~ ~International human rights treaties
A territorial treaty binds successor states by virtue of attaching to the territory itself and establishing a particular regime that transcends the treaty.
Can it be maintained that international human rights treaties are analogous and thus 'attach' to the inhabitants concerned within the territory of
the predecessor state and thus continue to bind successor states? There is
no doubt that human rights treaties constitute a rather specific categoryof treaties. They establish that obligations are owed directly to individuals and often provide for direct access for individuals to i~lter~lational'" See the letters sent by the UK Prime Minister to the Prime Ministers of the Czech Republicand Slovakia on 1 January 1993, UKMIL, 65 BYIL, 1994, pp. 586 ff.
'" ICJ Reports, 1996, pp. 595,611-12; 115 ILR, p. 1. See also M. Craven, 'The Genocidecase,the Law of Treaties and State Succession: 68 BYIL, 1997, p. 127.
ICJ Reports, 1997, pp. 7, 71; 116 ILR, p. 1. As to article 12, see above, p. 874.

886

I N T E R N A T I O N A L LAW

mechanisms.'" The very nature of international human rights treaties
varies somewhat from that of traditional international agreements. The
International Court in the Reservations to the Genocide Convention caseemphasised that 'in such a Convention the contracting states do not have
any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are theraison d'&treof the Convention'.'" In the Barceloiza Tractioiz case,'" theCourt differentiated between obligationsof a state towards the international community as a whole and those arising vis-a-vis another state.
The former are obligations that derive 'from the outlawing of aggression
and of genocide, as also from the principles and rules concerning the basic
rights of the human person, including protection from slavery and racial
discrimination'. In view of the importance of such rights, 'all States canbe held to have a legal interest in their protection; they are obligations
erga omnes'. It is also the case that the process of interpretation of international human rights treaties is more dynamic than is the case withregard to other international agreements. Human rights treaties create
not merely subjective, reciprocal rights but rather particular legal orders
involving objective obligations to protect human rights.'33
Where a state party to human rights treaties either disintegrates completely or from which another state or states are created, and the classicalrules of succession were followed, there is a danger that this might result ina situation where people formerly protected by such treaties are deprivedof such protection as a consequence or by-product of state s u c ~ e s s i o n . ' ~ ~The practice of the UN Human Rights
with regard to the
Yugoslav tragedy is particularly interesting here. After the conclusion of its
45th session, the UN Human Rights Committee requested special reports
with regard to specific issues (for example, the policy of 'ethnic cleansing',
See R. Higgins, Problems and Process, Oxford, 1994, p. 95.
ICJ Reports, 1951, pp. 15,23; 18 ILR, p. 364.
ICJ Reports, 1970, pp. 4, 32; 46 ILR, pp. 178,206.
See, for example, Austria v. Italy, 4 European Yearhook of HullIan Rights, 1960, pp. 116,nof Human Rights, Series A, vol. 20, 1978, pp. 90-1,
140; Ireland v. LK, E ~ ~ r o p e aCourtand Effect of Reservations on the Entry into Force of tlze Americnn Convention on Human
Rights, 67 ILR, pp. 559,568. See also above, chapter 16, p. 843.
""ate that the editors of Oppeizlzeim's International Law take the view that in cases of theseparation resultingin the creation ofanew state, thelatter 'is boundby- or at least entitledto accede to - general treaties of a "law-making" nature, especially those of a humanitariancharacter, previously binding on it as part of the state from which it has separated', p. 222.
See above, chapter 6, p. 292.
''I

"'

'"

STATE S U C C E S S I O N

887

arbitrary detention, torture and advocacy of hatred) from Bosnia andHerzegovina, Croatia and the Federal Republic of Yugoslavia (Serbia andMontenegro), noting 'that all the peoples within the territory ofthe former
Yugoslavia are entitled to the guarantees of the Covenant'.'" Representatives of all three states appeared before the Committee to discuss the relevant issues, no objection being made to the competence ofthe Committee,even though only Croatia had actually notified the Secretary-General of
its succession to the human rights treaties of the former ~ u ~ o s 1 a v i aIn. l ~ ~the formal Comments of the Human Rights Committee upon the initialshort reports submitted by the three states,'38the Committee emphasised
clearly and unambiguously that 'all the peoples within the territory of
the former Yugoslavia are entitled to the guarantees of the ovena ant'.'^'In its General Comment No. 26 of October 1997, the Committee took
the view that 'once the people are accorded the protection of the rights
under the Covenant, such protection devolves with territory and continues to belong to them, notwithstanding change in government.. . or Statesu~cession~'~~The Commission on Human Rights adopted resolution 1994116 on 25
February 1994 in which it 'reiterates its call to successor states which have
CCPRICISR.1178IAdd.1, pp. 2-3.
See Miillerson, Irlterrlatiorial Latu, p. 157. In the ensuing discussion in the Committee,
Miillerson (at the time a member) noted that human rights treaties besides being interstate instruments also conferred rights upon individuals 'who could not be deprived ofthose rights in the event of state succession', while Serrano Caldera einphasised that 'state
succession should be viewed as a matter of the acquired rights of the population of thestate that had ratified the Covenant, ~vhichwere not diluted when a state was divided:
CCPRICISR.1178IAdd.1, pp. 2 , 4 and 9.
These reports were suppleineilted by Special Reports froin each of the three states in April
1993: see that of Croatia, CCPRICIX7; that of the Federal Republic of Yugoslavia (Serbia
and Montenegro), CCPRICIXX, and that of Bosnia and Her~egovina,CCPRICIR9.
See CCPRICI79IAdd. 14-16, 28 December 1992. Note that at its 49th session, the UN
Commission on Human Rights adopted resolution 1993123 of 5 March 1993 in ~vhichit
encouraged successor states to confirm to appropriate depositaries that they continued to
be bound by obligations under relevant international human rights treaties. See also theReport ofthe UN Secretary-General, EICN.411994168.On 25 May 1994, the Committee on
the Elimination of Racial Discrimination sent a communication to those successor statesof the USSR that had not yet declared their adherence or succession to the Convention,
inviting them to confirm the applicability of compliance with the Convention's provisions:
see ElCN.411995180, p. 3.
140 A153140, annex VII. Cf. Aust, Modern Treaty Law, p. 308. See also M. Kamminga, 'State
Successioil in respect of Huinan Rights Treaties', 6 EJIL, 1995, p. 469, and A. Rasulov,'Revisiting State Succession to Humanitarian Treaties: Is There a Case for Automaticity?',
14 EJIL, 2003, p. 141.
13'

888

I N T E R N A T I O N A L LAW

not yet done so to confirm to appropriate depositories that they continue
to be bound by obligations under international human rights treaties' and'emphasises the special nature of the human rights treaties aimed at theprotection of human rights and fundamental freedoms'. In addition, theCommission requested the human rights treaty bodies to continue further the 'continuing applicability of the respective international humanrights treaties to successor states' and the Secretary-General 'to encourage successor states to confirm their obligations under the international
human rights treaties to which their predecessors were a party as fromthe date of their independence'.14' In addition, the fifth meeting of persons chairing the human rights treaty bodies in September 1994 took theview that successor states were automatically bound by obligations underinternational human rights instruments from the respective date of independence and that observance of the obligations should not depend on
a declaration of confirmation made by the government of the successor
state.142
The issue of succession to the Genocide Convention in the Yugoslav
situation was raised before the International Court specifically in the Preliminary Objections phase of the Application of the Genocide convention(Bosnia-Herzegovina v. Yugoslavia) case. The Court held that it was unnecessary to determine this question in the circumstances since both Bosnia
and Yugoslavia were clearly parties to the Convention by one means or
l ~ ~ issue was, howanother by the date of the filing of the ~ p p 1 i c a t i o n . The
ever, addressed particularly in two Separate Opinions. Judge Shahabuddeen declared that 'to effectuate its object and purpose, the [Genocide]
Convention would fall to be construed as implying the expression of aunilateral undertaking by each party to the Convention to treat successor
states as continuing as from independence any status which the predecessor state had as a party to the Convention'. It was suggested that it
might be possible to extend this object and purpose argument to humanrights treaties generally.144Judge Weeramantry in his Separate Opinion
undertook a close analysis of the underlying principles and concluded bypointing to 'a principle of contemporary international law that there is
automatic state succession to so vital a human rights convention as the
Genocide onv vent ion'.'^^ One of the main reasons for this was the danger'" See also Commission on Human Rights Resolution 1995118 adopted on 24 February
1995.
'" ElCN.411995180, pp. 3-4. '" ICJ Reports, 1996, pp. 595, 612. '" h d . , p. 636.
'45

Ibtd., pp. 645 ff.

STATE S U C C E S S I O N

889of gaps appearing in the system ofhuman rights protection as between the
dissolution of the predecessor state and the acceptance of human rights
treaty obligations by the successor state or states.
Accordingly, the question of continued application of human rights
treaties within the territory of a predecessor state irrespective of a succession is clearly under consideration. Whether such a principle has beenclearly established is at the present moment unclear.
Succession with respect to matters other than treaties

iklernbership of international organisations
Succession to membership of international organisations will proceed(depending upon the terms of the organisation's constitution) according
to whether a new state is formed or an old state continues in a slightly
different form. In the case of the partition of British India in 1947, India
was considered by the UN General Assembly as a continuation of theprevious entity, while Pakistan was regarded as a new state, which had thento apply for admission to the 0rgani~ation.l'~Upon the merger of Egypt
and Syria in 1958 to form the United Arab Republic, the latter was treatedas a single member of the United Nations, while upon the dissolution of
the merger in 1961, Syria simply resumed its separate membership of the~rganisation."~In the case of the merger of North and South Yemen in
1990, the new state simply replaced the predecessor states as a memberof the relevant international organisations. Where the predecessor state isdissolved and new states are created, such states will have to apply anew formembership to international organisations. For example, the new statesof the Czech Republic and Slovakia were admitted as new members of the
UN on 19 January 1 9 9 3 . ' ~ ~l d 6 See O'Connell, StateSuccession,vol. 11, pp. 183 ff., andH. G. Schermers andN. M. Blokker,

International Institutional Law, 3rd edn, The Hague, 1995, pp. 73 ff.
This issue, of a separation of part of an existing state to form a new state, was consideredby the UN to be on a par with the separation from the UK of the Irish Free State and fromthe Netherlands of Belgium, where the remaining portions continued as existing states:
see O'Connell, State Succession, vol. I, pp. 184-7.
Ibid., pp. 197-8. This situation, which differed from the India-Pakistan precedent of 1947,
has been criticised: see e.g. C. Rousseau, 'Secession de la Syrie et de la RUA: 66 RGDIP,
1962, p. 413. See also E. Cotran, 'Some Legal Aspects of the Formation of the United Arab
Republic and the United Arab States: 8 ICLQ, 1959, p. 346.
14"ee Schermers and Blokker, International Institutional Law, pp. 73 and 77. See above,
p. 865, with regard to the position of the Russian Federation and the Federal Republic of
Yugoslavia and membership of the UN.

'41

'"

890

I N T E R N A T I O N A L LAW

The Sixth (Legal) Committee of the General Assembly considered thesituation of new states being formed through division of a member state
and the membership problem and produced the following principles:150
1. That, as a general rule, it is in conformity with legal principles topresume that a state which is a member of the Organization of the United
Nations does not cease to be a member simply because its Constitution or
frontier has been subjected to changes, and that the extinction of the state
as a legal personality recognised in the international order must be shown
before its rights and obligations can be considered thereby to have ceased
to exist.
2. That when a new state is created, whatever may be the territory andthe populations which it comprises and whether or not they formed partof a state member of the United Nations, it cannot under the system of theCharter claim the status of a member of the United Nations unless it has
been formally admitted as such in conformity with the provisions of theCharter.
3. Beyond that, each case must be judged according to its merits.

Succession to assets and debts 1 5 'The relevant international law in this area is based upon customary law.
The Vienna Convention on Succession to State Property, Archives andDebts, 1983 is not currently in force, although most of its provisions(apart from those concerning 'newly independent states') are reflective ofcustom. The primary rule with regard to the allocation of assets (includingarchives) and debts in succession situations is that the relevant parties
should settle such issues by agreement. Virtually all of the rules that areformulated, for example in the Vienna Convention 1983, are deemed to'" AAiN.41149, p. 8, quoted in O'Connell, State Succession, vol. I, p. 187.
''I

See generally, O'Connell, State Succession, vol. I , pp. 199 ff.;E. H. Feilchenfeld, PublicDebtj
and StateSuccession, NewYork, 1931;U N , Materials on Stlccession ofStates in Matters Other
than Treaties, New York, 1978; A. Stanit, 'Financial Aspects of State Succession: The Caseof'iugoslavia', 12 EJIL, 2001, p. 751; C. Rousseau, Droit International Public, Paris, 1977,
vol. 111,p. 374; M. Streinz, 'Succession of States in Assets and Liabilities-A New Regime?',26 German YIL, 1983, p. 198; P. Monnier, 'La Convention de Vienne sur la Successiond'Etats en Matiere de Biens, Archives et Dettes d'Etat: AFDI, 1984, p. 221; V. D. Depan,'State Succession Especially in Respect of State Property and Debts', 4 Finnish YIL, 1993,
p. 130; Mrak, Succession of States, and E. Nathan, 'The Vienna Convention on Successionof States in Respect of State Property, Archives and Debts' in International Law at a Timeofperplexity (ed. Y. Dinstein), Dordrecht, 1989, p. 489. See also Yearbook of the ILC, 1981,
vol. 11, part 2.

STATE S U C C E S S I O N

891

operate only where such agreement has not taken place.'j2 In addition,
the Arbitration Commission on Yugoslavia declared in Opinion No. 9that 'the successor states to the SFRY must together settle all aspects of thesuccession by agreement'lj3 and reinforced this approach in Opinion No.
14, declaring that 'the first principle applicable to state succession is thatthe successor states should consult with each other and agree a settlementof all questions relating to the succession~15"
State property ' j 5
The classic rule postulates that only the public property of the predecessor state passes automatically to the successor state,'j6 but this, of course,
raises the question of the definition of public property. The distinction
between public and private property is to some extent based upon theconceptual differences between public and private law, a distinction unknown to common law countries. Although in many cases there will be arelevant agreement to define what is meant by public property in this context,15' this does not always occur and recourse to municipal law is often
required. This indeed may be necessitated to a large extent also becauseinternational law itself simply does not provide many of the required definitions with regard to, for example, public companies or public utility
undertakings.158
The relevant municipal law for such purposes is that of the predecessor state. It is that law which will define the nature of the property inquestion and thus in essence decide its destination in the event of a succession.'j9 Article 8 of the Vienna Convention, 1983 provides that state
property for the purposes of the Convention means 'property, rights andinterests which, at the date of the succession of states, were, according to
the internal law of the predecessor state owned by that state'160 and thisSee, for example, articles 14, 17, 18, 22,23,27,28, 30, 31, 37, 38,40 and41'"I
96 ILR, p. 731.
Note that private rights are unaffected as such by a succession: see, for example, Oppe~lI~eim'sIizterizational Law, p. 216, and below, p. 905.
l S 6 See, for example, the United Nations Tribunal for Libya, 22 ILR, 17. 103.
Is'
See, for example, the treaties concerned with the establishment of Cyprus in 1960, 382
UNTS, pp. 3 ff., and the Treaty of Peace with Italy, 1947,49 UNTS, annex XI\', p. 225.
l S 8 For an example, see the dispute concerning property belonging to the Order of St Mauritz
and St Lazarus, AFDI, 1965,p. 323. See also Stern, 'Succession', p. 329.
l S y See the Chorzow Factory case, PCIT, Series A, No. 7, p. 30 and the Gerrrlan Settlers in LTpper
Silesia case, PCIT, Series B, No. 6, p. 6, but cf. the Peter Pazmany University case, PCIJ,
Series AIB, No. 61, p. 236
160 See also Yearbook of the ILC, 1970, rol. 11, pp. 136-43 and ibid., 1981, rol. 11, p. 23; cf.
O'Connell, State Stlccession, vol. I, pp. 202-3.
Is2'" 92 ILR, p. 205.

892

I N T E R N A T I O N A L LAW

can be taken as reflective of customary law. The Arbitration Commission on Yugoslavia reiterated this position by declaring that 'to determine
whether the property, debts and archives belonged to the SFRY, reference
should be had to the domestic law of the SFRY in operation at the dateof s~ccession:'~'The relevant date for the passing of the property is thedate of s u c c e ~ s i o nand
' ~ ~this is the date of independence, although difficulties may arise in the context of the allocation of assets and debts where
different dates of succession occur for different successor states.'63 Suchproblems would need to be resolved on the basis of agreement between
the relevant parties.'@
The Arbitration Commission was faced with two particular problems.
First, the 1974 SFRY Constitution had transferred to the constituent republics ownership of many items of property. This, held the commission,
led to the conclusion that such property could not be held to have belonged
to the SFRY whatever their origin or initial financing.16' Secondly, theCommission was faced with the concept of 'social ownership', a concept
regarded as particularly highly developed in the SFRY. In the event, theCommission resolved the dilemma by adopting a mixture of the territorial
principle and a functional approach. It was noted that 'social ownership'
was 'held for the most part by "associated labour organisations" -bodies
with their own legal personality, operating in a single republic and coming within its exclusive jurisdiction. Their property, debts and archives
are not to be divided for purposes of state succession: each successor
state exercises its sovereign powers in respect of them.'l'j6 However, whereother organisations operated 'social ownership' either at the federal level
or in two or more republics, 'their property, debts and archives should be
divided between the successor states in question if they exercised publicprerogatives on behalf of the SFRY of individual republics'. Where such'" Opinion No. 14, 96 ILR, p. 732.
Note that article 10 of the Vienna Convention, 1983 provides that the date of the passingof state property of the predecessor state is that of the date of succession of states 'unlessotherwise agreed by the states concerned or decided by an appropriate international body'.
Article 21 repeats this principle in the context of state archives and article 35 with regard
to state debts.
16' See e.g. Arbitration Commission Opinion No. 11, 96 ILR, p. 719. Cf. the Yugoslav Agreement on Succession Issues of rune 2001, 41 ILM, 2002, 17. 3. See also C. Stahn, 'The
Agreement on Succession Issues of the Former Socialist Federal Republic of Y~~goslavia',
96 AJIL, 2002, p. 379.
164 See the Yugoslav Agreement, 2001, articles 3 and 7 of Annex A and article 4(3) ofAnnex B.
165 0
pinion No. 14, 96 ILR, p. 732.
166 Ibid..
'62

STATE S U C C E S S I O N

893

public prerogatives were not being exercised, the organisations should be
regarded as private-sector enterprises to which state succession does not
apply.167
The Yugoslav Agreement, 2001, however, provides that, 'It shall be forthe successor state on whose territory immovable and tangible movable
property is situated to determine, for the purposes of this Annex, whether
that property was state property of the SFRY in accordance with international law.'I6$
It is a recognised principle of customary international law that the
public property of a predecessor state with respect to the territory inquestion passes to the successor state.'69 Thus, as a general rule, the testof succession of public, or state, property as so characterised under thelaws of the predecessor state is a territorial one.
However, one needs to distinguish here between immovable and movable property. State immovable property situated in the territory to which
the succession relates passes to the successor state."' This is provided
for in the Vienna Convention, 1983.l7' It is also evident in state practice,li2 most recently being reaffirmed by the Arbitration Commission on
and in the Yugoslav Agreement, 2001.1i4
In the case of immovable property situated outside the successor stateor states, traditional state practice posits that where the predecessor statecontinues in existence this property should remain with the predecessor state (subject to agreement to the contrary by the states concerned,'" Ibid.
Article 6 of Annex A. This is to be contrasted with the more usual reference to domestic
law at the relevant time.
169 See, for example, the Third US Restatement ofForeign Relations Law, pp. 102 ff.; Brownlie,
Principles, p. 653, and O'Connell, State Succession, vol. I, pp. 199-200. See also the Peter
Pazrnany LTniverrity case, PCIJ, Series AIB, No. 61, 1933, p. 237 and Haile Selassie v.
Cable and Wirelesj Ltd (No. 2 ) [I9391 Ch. 182; 9 AD, p. 94. See also Kunstsarnn~lungenzu
Weirnar v. Elicofon 536 F.Supp. 829, 855 (1981); 94 ILR, pp. 133, 180. Note that underarticle 11, which basically reflects practice, no compensation is payable for the passing ofstate property unless otherwise agreed, and article 12 provides that third states' property
in the territory of the predecessor state remains unaffected by the succession.
I 7 O E.g. fixed military installations, prisons, airports, government offices, state hospitals anduniversities: see Yearbook of the ILC, 1981, vol. 11, part 2, p. 33.
17' In article 14 (with regard to the transfer of part of a state to another state); article 15(i)a(with regard to 'newly independent states'); article 16 (upon a uniting of states to form
one successor state); article 17 (with regard to separation of part of a state to form a newstate) and article 18 (wit11 regard to the dissolution of a state).
17' See, for example, O'Connell, State Succession, vol. I , pp. 220-1. See also Yearbook ofthe
ILC, 1981, rol. 11, part 2, p. 29.
Article 2(1) of Annex A.
17' Opinion No. 14, 96 ILR, p. 731.

894

I N T E R N A T I O N A L LAW

of course). Only special circumstances might modify this prin~iple.'~'Where the predecessor state ceases to exist, it would appear that its property abroad should be divided proportionately between the successor
states.li6
Article 15(l)bof the Convention makes out a special, and highly controversial, case for 'newly independent states'. This provides that 'immovable property, having belonged to the territory to which the successionof states relates, situated outside it and having become state property ofthe predecessor state during the period of dependence, shall pass to thesuccessor state', while other immovable state property situated outside
the territory 'shall pass to the successor state in proportion to the contribution of the dependent territory'. Neither of these propositions canbe regarded as part of customary international law and their force would
thus be dependent upon the coming into effect of the Convention, should
this happen.'77
As far as movable property connected with the territory in question is ~ o n c e r n e d , the' ~ ~territorial principle continues to predominate.
O'Connell notes that 'such property as is destined specifically for local
use is acquired by the successor state',179while the formulation in the
Vienna Convention, 1983 is more flexible. This provides that 'movablestate property of the predecessor state connected with the activity of thepredecessor state in respect ofthe territoryto which the succession of states

"G

17'

'''

See, for example, Oppenheirri's International Law, p. 223, note 6.
I b ~ d .at, p. 221. Article 1 8 ( l ) bof the Vienna Convention, 1983 provides that 'immovablestate property of the predecessor state situated outside its territory shall pass to thesuccessor states in equitable proportions: Note that the Yugoslav Agreement, 2001 deals
specifically with the allocation of diplomatic and consular premises: see Annex B.
It is to be noted that article 15 does not, unlike other succession situations, refer toagreements between the predecessor and successor states. This was deliberate as the International Law Commission, w l ~ i c draftedl~the articles upon which the Convention isbased, felt that this was required as a recognition of the specTal circumstances of decolonisation and the fact that many such agreements are unfavourable to the newly independent
1981, vol. 11, part 2, p. 38. The article is also unylsual instate: see Yearbook of the ILC,
that it provides that immovable state property situated outside the territory and movablestate property other than that already covered in the article 'to the creation of which thedependent territory has contributed' shall pass to the successor state in proportion to thecontribution of the dependent territory. This was intended to introduce the applicationof equity to the situation and was designed to preserve inter alia, 'the patrimony andthe historical and cultural heritage of the people inhabiting the dependent territory concerned: ibid. It is unclear how far this extends. It may cover contributions to international
institutions made where the territory is a dependent territory, but beyond this one canonly speculate.
E , g currency and state public funds, Yearbook of the ILC, 1981, rol. 11, part 2, pp. 35-6.
O'Connell, State Succession, vol. I , p. 204.

STATE S U C C E S S I O N

895

applies shall pass to the successor state'.180 There are, however, likely to
be difficulties of precision in specific cases with regard to borderline instances of what may be accepted as either property 'destined specificallyfor local use' or property 'connected with the activity of the predecessor
State i n . . . the territory'. The view taken by the Arbitration Commission
in Opinion No. 14 appears to be even more flexible for it simply notesthat 'public property passes to the successor state on whose territory it
is situated'."' However, particular kinds of property may be dealt withdifferently. For example, the Yugoslav Agreement provides that the rule is
not to apply to tangible state property of great importance to the cultural
heritage of one of the successor states and which originated there, eventhough situated elsewhere at the date of independence.3uch property is to
go to the state whose cultural heritage it is.'82Secondly, military property
is to be made the subject of special arrangements.'83
The situation with regard to movable property outside of the territory
in question is more complicated. Article 17(l)c of the Vienna Convention, 1983 provides that such property (in the case of separation of partof a state) 'shall pass to the successor state in an equitable proportion'.
This must be regarded as a controversial proposition since it appears tomodify the dominant territorial approach to the succession of state property.lS4However, in the case of the dissolution of the predecessor state,
the argument in favour of an equitable division of movable property notlinked to the territory in respect of which the succession occurs is muchstronger.18' The Arbitration Commission on Yugoslavia limited itself tonoting the general principle that state property, debts and archives of
the SFRY (other than immovable property within each of the successor
states) should be divided between the successor statesls6 and that while
each category of assets and liabilities need not be divided equitably, theoverall outcome had to be an equitable d i v i s i ~ n . ' ~ 'lSO Article 17. See also articles 14(2)b, 1 5 ( l ) dand 18(l)c.
lX196 ILR, 1). 731. See also article 3(1) of Annex A of the Y~~goslav
Agreement, 2001.
l X 2 Article 3(2) of Annex A.

'" Article 4(1).

p. 204. Cf. Yearbook of the ILC, 1981, vol. 11, part
1, pp. 46-7.
lS5 See article 18(l)d of the Vienna Convention, 1983. See also the decision of the AustrianSupreme Court in Reptrblic of Croatia et al. v. Girocredit Bank AG der Sparkassen, 36 ILM,
1997, p. 1520.
lX6 Opinion No. 14, 96 ILR, pp. 731-2. See now the Yugoslav Agreement, 2001 as discussed.
lX7 Opinion No. 13, ibid., p. 728. The Yugoslav Agreement, 2001 provides that where theallocation of property results in a 'significantly unequal distribution' of SFRY state property, then the matter may be raised with the Joint Committee established under article 5of the Annex.
lS4 See O'Connell, State Successior~,vol. I ,896

I N T E R N A T I O N A L LAW

The state succession situation which in general poses the least problem is that of absorption or merger, since the absorbing or newly createdstate respectively will simply take over the assets and debts of the extinguished state. The issues were, however, discussed in detail in the context
of German unification. Article 21 of the Unification Treaty provides thatthe assets ofthe German Democratic Republic which served directly specified administrative tasks were to become Federal assets'88and were to be
used to discharge public tasks in the territory of the former GDR. Article 22 dealt with public assets of legal entities in that territory, including
the land and assets in the agricultural sectors which did not serve directly
specified administrative tasks.'89Such financial assets were to be administered in trust by the Federal Government and be appointed by federal law
equally between the Federal Government on the one hand and the Landerof the former GDR on the other, with the local authorities receiving anappropriate share of the Lander allocation. The Federal Government was
to use its share to discharge public tasks in the territory of the former
GDR, while the distribution of the Lander share to the individual Lander
was to take place upon the basis of population ratio. Publicly owned assets
used for the housing supply became the property of the local authorities
together with the assumption by the latter of a proportionate share of thedebts, with the ultimate aim of privatisation.
In fact, state practice demonstrates that with the exception of some clear
and basic rules, all will depend upon the particular agreement reached in
the particular circumstances. In the case of the former Czech and Slovak
Federal Republic, the two successor states agreed to divide the assets andliabilities of the predecessor statelgoin the ratio of two to one (the approximate population ratio of the two new states).lY'In the case of theformer Soviet Union, Russia and the successor states signed agreements
in 1991 and 1992 apportioning assets and liabilities of the predecessor''' Unless they were earmarked on 1 October 1989 predominantly for administrative tasks~ ~ l ~underi c h the Basic Law ofthe FRG are to be discharged by the Lander, local authorities
or other public administrative bodies, in which case they will accrue to the appropriate
institution of public administration. Administrative assets used predominantly for tasksof the former Ministry of State SecurityIOffice for National Security are to accrue tothe Trust Agency established under the Law on the Privatisation and Reorganisation of
Publicly Owned Assets (Trust Law) of 17 rune 1990 for the purpose of privatising former
publicly owned companies.
18' These were termed 'financial assets' and deliberately exclude social insurance assets.
Apart froin iinmovable property located within each republic which went to the republicconcerned in accordance with the territorial principle.
See, for example, Degan, 'State Succession', p. 144.

'"'"

STATE S U C C E S S I O N

897

state with the share of Russia being 61.34 per cent and the Ukraine being
16.37 per cent.'" In the case of the former Yugoslavia, the Agreementof 2001, in addition to the provisions referred to above,'93 provided forthe distribution of assets on the basis of agreed proportion^.'^^ Financial
assets in the International Monetary Fund (IMF) and World Bank were
distributed on a slightly different proportional basis (that became known
as the IMF key).Ig5The IMF key was also used with regard to the distribution of assets in the Bank of International Settlements in an arrangement
dated 10 April 2001
State archives
Archives are state property with special characteristics. Many are difficult
by their nature to divide up, but they may be relatively easily reproduced
and duplicated. Archives are a crucial part of the heritage of a community and may consist of documents, numismatic collections, iconographic
documents, photographs and films. The issue has been of great concern
to UNESCO, which has called for the restitution of archives as part of thereconstitution and protection of the national cultural heritage and has
appealed for the return of an irreplaceable cultural heritage to those thatcreated it.197In this general context, one should also note articles 149 and192

See Miillerson, Internatioizal Law, p. 144, and Stern, 'Succession', pp. 379 ff. The proportions were reached using four criteria: the participation of the republics concerned in
the imports and exports respectively of the former USSR, the proportion of GNP, andthe proportion of populations: see I\'. Czaplinski, 'Equity and Equitable Principles in the
Law of State Succession' in Mark, S~lccessiorlofstates, pp. 61, 71. However, in 1993, Russia
claimed all of the assets and liabilities of the former USSR: see Stern, 'Succession', p. 405.
A special agreement was reached in 1997 with regard to the division of the Black Sea fleet
based in the Crimea in Ukraine, following a number of unsuccessful efforts: ibid., p. 386.
19'
See above, pp. 893-5.
19' These were Bosnia and Herzegovina 15.5 per cent; Croatia 23 per cent; Macedonia 7.5
per cent; Slovenia 16 per cent and Yugoslap-ia 38 per cent, see article 4 of Annex C.
This proportion was also used for all other rights and interests of the SFRY not otherwise covered in the Agreements (such as patents, trade marks, copyrights and royalties),
Annex F.
lY5 This was as follows: Bosnia and Herzegovina 13.20 per cent; Croatia 28.49 per cent;hfacedonia 5.40 per cent; Slovenia 16.39 per cent and FRY 36.52 per cent: see IMF Press
Release No. 92192, 15 December 1992. See also P. Mrilliams, 'State Succession and theInternational Financial Institutions', 43 ICLQ, 1994, pp. 776, 802, fn. 168, and I. Shihata,'Matters of State Succession in the World Bank's Practice' in Mark, Succession of States,
pp. 75, 87.
lY6 See Appendix to the Yugoslav Agreement, 2001.
UNESCO, Records of the General Conference, 18th Session, Resolutions, 1974 pp. 68 ff.,
20 Cl102, 1978, paras. 18-19; and UNESCO Records of the General Conference, 20th
Session, Resolutions, 1978, pp. 92-3. See also Yearbook of the ILC, 1979, vol. 11, part 1,

'"

898

I N T E R N A T I O N A L LAW

303 of the 1982 Convention on the Law of the Sea. The former provides

that all objects of an archaeological and historical nature found in the International Seabed Area are to be preserved or disposed of for the benefitof mankind as a whole, 'particular regard being paid to the preferential
rights of the state or country of origin, or the state of historical and archaeological origin', while the latter stipulates that states have the duty toprotect objects of an archaeological and historical nature found at sea andshall co-operate for this purpose.
In general, treaties between European states dealing with cessions ofterritory included archival clauses providing for the treatment of archives,
while such clauses are very rare in cases of d e c o l ~ n i s a t i o n . ' ~ ~Article 20 of the 1983 Vienna Convention provides that state archives
in the present context means:
all documents of whatever date and kind, produced or received by thepredecessor state in the exercise of its functions which, at the date of thesuccession of states, belonged to the predecessor state according to its internal law and were preserved by it directly or under its coiltrol as archives
for whatever purpose.

Generally, such archives will pass as at the date of succession and withoutcompensation, without as such affecting archives in the territory owned
by a third state.199
Where part of the territory of a state is transferred by that state toanother state, in the absence of agreement, the part of the state archivesof the predecessor state which, for normal administration of the territory
concerned, should be at the disposal of the state to which the territory istransferred, shall pass to the successor state, as shall any part of the statearchives that relates exclusively or principally to the territory.200In thecase of 'newly independent states', the same general provisions apply,201
but with some alterations. Archives having belonged to the territory inquestion and having become state archives ofthe predecessor state during
the period of dependence are to pass to the successor state. The reference
here to archives that became state archives is to pre-colonial material,
whether kept by central government, local governments or tribes, religious
pp. 78-80. Note in addition the call for a New International Cultural Order: see e.g. M.
Bedjaoui, Towards a New International Econorrlic Order, Paris, 1979, pp. 75 ff. and 245 ff.,
and General Assembly Resolutions 3026A (XXIrII);3148 (XXVIII); 3187 (XXVIII); 3391
(XXX) and 31140.
198 Yearbook of the ILC, 1979, vol. 11, part 1, p. 93.
199 Articles 21-4.
'0° Article 27.
"' Article 28(l)b and c.

899

STATE S U C C E S S I O N

ministers, private enterprises or individuals.202One may mention here theTreaty of Peace with Italy of 1947, which provided that Italy was to restore
all archives and objects of historical value belonging to Ethiopia or its
natives and removed from Ethiopia to Italy since October 1 9 3 5 . ~ 'In~ thecase of Vietnam, the 1950 Franco-Vietnamese agreement provided forthe return as of right of all historical archives,204while a dispute between
France and Algeria has been in existence since the latter's independence
over pre-colonial material removed to ~ r a n c e . ~ "Article 28(2) provides that the passing or the appropriate reproductionof parts of the state archives of the predecessor state (other than thosealready discussed above) of interest to the territory concerned is to be
determined by agreement, 'in such a manner that each of these states[i.e. predecessor and successor] can benefit as widely and equitably as
possible from those parts of the state archives of the predecessor state'.
The reference here is primarily to material relating to colonisation andthe colonial period, and in an arrangement of 1975, the French specifically
noted the practice ofmicrofilming in the context of France's acquisition of~ l g e r i a . Article~ ' ~ 28(3) emphasises that the predecessor state is to provide
the newly independent state with the best available evidence from its statearchives relating to territorial title and boundary issues. This is importantas many post-colonial territorial disputes will invariably revolve aroundthe interpretation of colonial treaties delimiting frontiers and colonialadministrative practice concerning the area in c ~ n t e n t i o n . ~ ~ 'Where two or more states unite to form one successor state, the statearchives ofthe former will pass to the latter.208Where part of a state secedes
to form another state, unless the states otherwise agree the part ofthe statearchives of the predecessor state, which for normal administration of
the territory concerned should be in that territory, will pass, as will thoseparts of the state archives that relate directly to the territory that is the
subject of the s u ~ c e s s i o n . ~ ~ 'The same provisions apply in the case of a dissolution of a state, whichis replaced by two or more successor states, in the absence of agreement,with the addition that other state archives are to pass to the successor states'02

Yearbook o f t h e ILC, 1981, vol. 11, part 2, p. 62.

201 49 UNTS, p. 142.

204 See I'earbook of the ILC, 1979, vol. 11, part 1 , p . 113.

'06

Ibid., pp. 113-14.

(Burkina Faso) border dispute, Shaw, T ~ t l eto
Territory, pp. 257-8, and the B u r k ~ n aFasol~Mallcase, ICJ Reports, 1986, p. 554; 80 ILR,
p. 459.
Article 29.
Article 30.

207 See, for example, the Mali-Upper L'olta

'Ox

'05

yearbook of the ILC, 1981, vol. 11, part 2, p. 64.

'"

900

I N T E R N A T I O N A L LAW

in an equitable manner, taking into account all relevant c i r c ~ m s t a n c e s . ~ ~ ~These principles were confirmed in the Yugoslav Agreement, 2001,~"
while it was additionally provided that archives other than those fallingwithin these categories are to be the subject of an agreement between the
successor states as to their equitable d i s t r i b u t i ~ n . ~ ~ "Articles 28, 30 and 31 also contain a paragraph explaining that therelevant agreements over state archives 'shall not infringe the right of thepeoples of those states to development, to information about their history
and to their cultural heritage'. Despite the controversy over whether such aright does indeed exist in law as a right and precisely how such a provision
might be interpreted in practice in concrete situations, the general conceptof encouraging awareness and knowledge of a people's heritage is to besupported.213
Public debt 214
This is an area of particular uncertainty and doubt has been expressed as
to whether there is a rule of succession in such circum~tances.~~'As inother parts of state succession, political and economic imperatives playa large role and much practice centres upon agreements made between
relevant parties.
The public debt (or national debt) is that debt assumed by the central government in the interests of the state as a whole. It constitutes aparticularly sensitive issue since third parties are involved who are often
reluctant to accept a change in the identity of the debtor. This encourages
an approach based on the continuing liability for the debt in question andin situations where a division of debt has taken place for that situation
to continue with the successor state being responsible to the predecessor
state (where this continues, of course) for its share rather than to thecreditor directly. And as article 36 of the Vienna Convention, 1983 notes,
"O

'I1
'I3

'I4

'I5

Article 31. Note in particular the dispute bet~veenDenmarli and Iceland, after the dissolution of their Union, over valuable parchments: see Verzijl, International Law, vol. VII,
1974, p. 153, and Yearbook of the ILC, 1981, vol. 11, part 1, pp. 68-9, and the Treaty of
St Germain of 1919 with Austria ~vhichcontained provisions relating to the succession
to archives of various new or reconstituted states.
See Annex D.
Ibid., article 6 .
See further, with regard to article 3(2) of Annex A of the I'ugoslav Agreement, 2001,
above, p. 895.
See generally, O'Connell, State Smccession, vol. I , chapters 15-17; Yearbook of the ILC,
1977, vol. 11, part 1, pp. 49 ff., and Zemanek, 'State Succession'.
See e.g. Brownlie, Principles, p. 654.

'"

STATE S U C C E S S I O N

901

a succession of states does not as such affect the rights and obligations ofcreditors."16
Public debts217may be divided into national debts, being debts ownedby the state as a whole; local debts, being debts contracted by a subgovernmental territorial unit or other form of local authority, andlocalised debts, being debts incurred by the central government for the
purpose of local projects or
Local debts clearly pass under customary international law to the successor state, since they constitute arrangements entered into by subgovernmental territorial authorities now transferred to the jurisdictionof the successor state and a succession does not directly affect them. In
effect, they continue to constitute debts borne by the specific territory in
q~estion.~~"imilarl~,
localised debts, being closely attached to the territory to which the succession relates, also pass to the successor state inconformity with the same territorial principle.220
There appears to be no definitive answer to the question as to theallocation ofthe national debt as such. In the case of absorption or merger,
the expanding or newly created state respectively will simply take overthe national debt of the extinguished state.221The German unification
example is instructive. Article 23 of the Unification Treaty provided thatthe total national budget debt of the German Democratic Republic wasto be assumed by a special Federal fund administered by the Federal
Minister of Finance. The Federal Government was to be liable for the
obligations of the special fund which was to service the debt and mightraise loans inter alia to redeem debts and to cover interest and borrowing
costs. Until 31 December 1993, the Federal Government and the Trust
Agency were each to reimburse one half of the interest payments made by'I6

Note that the Convention does not deal with private creditors, a point which is criticised in
the Third L'S Restatement on Foreign Relutions Lnuv, p. 106, but article 6 of the Convention
collstitutes in effect a savings clause here.
Note that the Convention is concerned with state debts which are defined in article 33 as'any financial obligation of a predecessor state arising in conformity with internationallaw with another state, an international organisation or any other subject of internationallaw:
See O'Connell, State Succession, vol. I , chapters 15-17, and Yearbook of the ILC, 1981,
vol. 11, part 1, p. 76. A variety of other distinctions have also been drawn, ibid.
See, for example, O'Connell, State Succession, vol. I , pp. 416 ff.
Ibid. See also Yearbook of the ILC, 1981, vol. 11, part 1, p. 90, and the Ottonlan Pt~blicDebt
case, 1 RIAA, p. 529 (1925).
Article 39 of the Convention provides that where two or more states unite to form a
successor state, the state debts of the former states will pass to the successor state.

"'
'I8

'I9
"O

"'

902

I N T E R N A T I O N A L LAW

the special fund. As from 1 January 1994, the Federal Government, theTrust Agency and the Lander of the former GDR assumed the total debt
accrued at that date by the special fund, which was dissolved. The sureties,
warranties and guarantees assumed by the GDR were taken over by theFederal Republic, while the interests of the GDR in the Berlin State Bank
were transferred to the Lander of the former GDR. The liabilities arisingfrom the GDR's responsibility for the Berlin State Bank were assumed by
the Federal Government.
In the case of secession or separation where the predecessor state continues to exist, it would appear that the presumption is that the responsibility for the general public debt of the predecessor state remains withthe predecessor state after the succession.222This would certainly appear
to be the case where part of a state is transferred to another ~ t a t e . ~ ~ % e n erally the paucity of practice leads one to be reluctant to claim that a
new rule of international law has been established with regard to suchsituations, so that the general principle of non-division of the public debt
is not displaced. However, successor states may be keen to establish theirinternational creditworthiness by becoming involved in a debt allocation
arrangement in circumstances where in strict international law this may
not be n e ~ e s s a r y . ~Further,'~
the increasing pertinence of the notion ofequitable distribution might have an impact upon this question.
A brief review of some practice may serve to illustrate the complexity of
the area. \$%en Texas seceded from Mexico in 1840, for example, it denied
any liability for the latter's debts, although an exgrutiu payment was in thecircumstances made. However, no part of Colombia's debt was assumed
by Panama upon its independence in 1903. The arrangements made in
the peace treaties of 1919 and 1923 were complex, but it can be notedthat while no division of the public debt occurred with regard to someterritories emerging from the collapsed empires, in most cases there wasa negotiated and invariably complicated settlement. The successor statesof the Austro-Hungarian Empire, for example, assumed responsibility
for such portions of the pre-war bonded debt as were determined by the
Reparations Committee, while Turkey took over a share of the Ottoman
public debt on a revenue proportionality basis.225When in 1921, the Irish
Free State separated from the United Kingdom, it was provided that the*" See the Ottorrlan Public Debt case, 1 RIAA, p, 529.
"3

See Yearbook of the ILC, 1977, rol. 11, part 1, p. 81.

224 See 14Tilliams,'State Succession', pp. 786 and 802-3.

See, for example, O'Connell, State Succession, rol. I , pp. 397-401, and Feilchenfeld, Public
Debts, pp. 431 ff.

STATE S U C C E S S I O N

903

public debt of the UK would be apportioned 'as may be fair and equitable',having regard to any claims by way of set-off or counter-claim.
The agreement between India (the continuation of British India) andPakistan (the new state) provided for the responsibility of the former withregard to all the financial obligations, including loans and guarantees, of
British India. India thus remained as the sole debtor of the national debt,
while Pakistan's share of this, as established upon the basis of proportionality relating to its share of the assets of British India that it received,
became a debt to ~ n d i a . ~ ~ ~With regard to secured debts, the general view appears to be that debts
secured by mortgage of assets located in the territory in question survive
the transfer of that territory. The Treaties of St Germain and Trianon
in 1919, for example (articles 203 and 186 respectively), provided that
assets thus pledged would remain so pledged with regard to that partof the national debt that it had been agreed would pass to the particularsuccessor state. Such debts had to be specifically secured and the securities
had to be 'railways, salt mines or other property'.227However, where debts
have been charged to local revenue, the presumption lies the other way.
Much will depend upon the circumstances and it may well be that where
the seceding territory constituted a substantial or meaningful part of thepredecessor state, considerations of equity would suggest some form ofapportionment of the national debt. It was with this in mind, together
with the example of the UK-Irish Free State Treaty of 1921, that led theInternational Law Commission to propose the draft that led to article 40of the Vienna Convention, 1983.
Article 40 provides that where part of a state separates to form another state, unless otherwise agreed, the state debt of the predecessor
state passes to the successor state 'in an equitable proportion' taking into
account in particular the property, rights and interests which pass to thesuccessor state in relation to that debt.228It is doubtful that this proposition constitutes a codification of customary law as such in view of theconfused and disparate practice of states to date, but it does reflect aviableapproach.
However, in the case of separation where the predecessor state ceases
to exist, some form of apportionment of the public debt is required andthe provision in article 41 for an equitable division taking into account in
226"'

Ibid., p. 411.
O'Connell, State Stlccession, vol. I , pp. 404-6.
The same rule applies in the case of the transfer of part of a state to another state: see
article 37.

904

I N T E R N A T I O N A L LAW

particular the property, rights and interests which pass to the successor
states in relation to that debt, is reasonable and can be taken to reflect
international practice.229The basis for any equitable apportionment ofdebts would clearly depend upon the parties concerned and would haveto be regulated by agreement. A variety of possibilities exists, including
taxation ratio, extent ofterritory, population, nationality of creditors, taxable value as distinct from actual revenue contributions, value of assets
and contributions of the territory in question to the central administration."' The Yugoslav Agreement, 2001 provides that 'allocated debts', thatis external debts where the final beneficiary of the debt is located on the
territory of a specific successor state or group of successor states, areto be accepted by the successor state on the territory of which the final
beneficiary is 10cated.~~'In common with the other parts of the 1983 Convention, a specificarticle is devoted to the situation of the 'newly independent state'. Article
38 provides that 'no state debt of the predecessor state shall pass to the
newly independent state' in the absence of an agreement between theparties providing otherwise, 'in view of the link between the state debt
of the predecessor state connected with its activity in the territory towhich the succession of states relates and the property, rights and interests
which pass to the newly independent state'. State practice generally in thedecolonisation process dating back to the independence of the UnitedStates appears to show that there would be no succession to part of thegeneral state debt of the predecessor state, but that this would differ where
the debt related specifically to the territory in question.232It is unlikelythat this provision reflects customary law.
229 See, for example, Oppenheimi International Law, p. 221.
"O

*"
'32

In the 1919 peace treaties, the principle of distribution proportional to the futme paying
capacity of the ceded territories was utilised, measured by reference to revenues contributed in the pre-war years, while in the Treaty of Lausanne, 1923, concerning theconsequences of the demise of the Ottoman Empire, the principle considered was thatof proportional distribution based solely upon actual past contributions to the amortisation of debts: see O'Connell, State Succession, vol. I , pp. 454-6. Cf. Yearbook of the ILC,
1981, vol. 11, part 2, p. 113. The phrase ultimately adopted in the Vienna Convention
was: 'taking into account, in particular, the property, rights and interests which pass tothe successor state in relation to that state debt'. In other words, stress was laid upon thefactor of proportionality of assets to debts.
Article 2 ( l ) b of Annex C.
See Yearbookofthe ILC, 1981,~ol.11, part 1, pp. 91-105 and ibid., 1977, vol. 11, part 1, pp.
86-107. Note the varied practice of succession to public debts in the coloilisation process,ibid., pp. 87-8, and with regard to annexations, ibid., pp. 93-4. See also West Rand Gold
Mining Co. V. R [I9051 2 KB 391, and O'Conilell, State Succession, vol. I, pp. 373-83.

STATE S U C C E S S I O N

905

Private rights
The question also arises as to how far a succession of states will affect, if atall, private rights. Principles of state sovereignty and respect for acquiredor subsisting rights are relevant here and often questions of expropriation
provide the context. As far as those inhabitants who become nationalsof the successor state are concerned, they are fully subject to its laws
and regulations, and apart from the application of international humanrights rules, they have little direct recourse to international law in thesecircumstances. Accordingly what does become open to discussion is theprotection afforded to aliens by international provisions relating to thesuccession of rights and duties upon a change of sovereignty.
It is within this context that the doctrine of acquired rights233has beenformulated. This relates to rights obtained by foreign nationals and has
been held by some to include virtually all types of legal interests. Its import is that such rights continue after the succession and can be enforced
against the new sovereign. Some writers declare this proposition to bea fundamental principle of international law,234while others describe it
merely as a source of confusion.235There is a certain amount of disagreement as to its extent. On the one hand, it has been held to mean that thepassing of sovereigntyhas no effect upon such rights, and on the other thatit implies no more than that aliens should be, as far as possible, insulated
from the changes consequent upon succession.
The principle of acquired rights was discussed in a number of casesthat came before the Permanent Court of International Justice between
the two world wars, dealing with the creation of an independent Poland
out of the former German, Russian and Austrian Empires. Problems arose
specifically with regard to rights obtained under German rule, whichwere challenged by the new Polish authorities. In the G e r m a n Settlers'case,'36 Poland had attempted to evict German settlers from its lands,
arguing that since many ofthem had not taken transfer of title before theArmistice they could be legitimately ejected. According to the German''' See, in particular, O'Connell, State Succession, chapter 10; Oppenkeiln's International Law,
""ee
2'5

2'6

p p 215 ff., and Brownlie, Principles, pp. 654 ff.
e.g. O'Connell, State Succession, vol. I, pp. 239-40.
See e.g. Brownlie, Principles, p. 652.
PCIJ, Series B, No. 6, 1923; 2 AD, p. 71. The proposition was reaffirmed in the Certain
German Interests in Polisli Upper Silesia case, PCIJ, Series A, No. 7, 1926; 3 AD, p. 429
and the Chorzow Factory case, PCIT, Series A, No. 17, 1928; 4 AD, p. 268. See also the
Mavrommatis Palestine Concessions case, PCIJ, Series A, No. 5, 1924 and US r.Perchernan
7 Pet. 51 (1830).

906

I N T E R N A T I O N A L LAW

system, such settlers could acquire title either by means of leases, or bymeans of an arrangement whereby they paid parts of the purchase priceat regular intervals and upon payment of the final instalment the land
would become theirs. The Court held that German law would apply inthe circumstances until the final transfer of the territory and that the titles
to land acquired in this fashion would be protected under the terms of the1919 Minorities Treaty. More importantly, the Court declared that evenin the absence of such a treaty:
private rights acquired under existing law d o not cease o n a change ofsovereignty. . . even those who contest the existence in international law of
a general principle of state succession d o not go so far as to n~aintainthat
private rights, including those acquired from the state as the owner of theproperty, are invalid as against a successor in sovereignty.237

The fact that there was a political purpose behind the colonisation
scheme would not affect the private rights thus secured, which could be
enforced against the new sovereign. It is very doubtful that this would
be accepted today. The principles emerging from such inter-war cases
affirming the continuation of acquired rights have modified the views
expressed in the West Rand Ceiztml Gold Mining Company case238to theeffect that, upon annexation, the new sovereign may choose which of thecontractual rights and duties adopted by the previous sovereign it wishes
to respect.
The inter-war cases mark the high-water mark of the concept of thecontinuation of private rights upon succession, but they should not beinterpreted to mean that the new sovereign cannot alter such rights. The
expropriation of alien property is possible under international law subject
to certain conditions.239What the doctrine does indicate is that there isa presumption of the continuation of foreign acquired rights, though thematter is best regulated by treaty. Only private rights that have become
vested or acquired would be covered by the doctrine. Thus, where rights
are to come into operation in the future, they will not be binding upon
the new sovereign. Similarly, claims to unliquidated damages will notcontinue beyond the succession. Claims to unliquidated damages occur
where the matter in dispute has not come before the judicial authorities
and the issue of compensation has yet to be determined by a competent'37'"

See also El Salvador/Honduras, ICJ Reports, 1992, pp. 351, 400 referring to 'full respect
for acqu~redrights', the German-Poland Border Treaty Constittltionality case, 108 ILR,
p. 656, and cf. Gosalia v. Agarwall18 ILR, p. 429.
[I9051 2 K B 391.
li9
See above, chapter 14, p. 737.

STATE S U C C E S S I O N

9 07

court or tribunal. In the Robert E. Brown claim,2" an American citizen's
prospecting licence had been unjustifiably cancelled by the Boer republic of South Africa in the 1890s and Brown's claim had been dismissedin the Boer courts. In 1900 the United Kingdom annexed the republic
and Brown sought (through the US government) to hold it responsible.
This contention was rejected by the arbitration tribunal, which said that
Brown's claim did not represent an acquired right since the denial ofjustice that had taken place by the Boer court's wrongful rejection of hiscase had prevented the claim from becoming liquidated. The tribunal also
noted that liability for a wrongful act committed by a state did not passto the new sovereign after succession.
The fact that the disappearance of the former sovereign automatically ends liability for any wrong it may have committed is recognised
as a rule of international law, although where the new state adopts theillegal actions of the predecessor, it may inherit liability since it itself
is in effect committing a wrong. This was brought out in the Lighthouses arbitration241in 1956 between France and Greece, which concerned the latter's liability to respect concessions granted by Turkey toa French company regarding territory subsequently acquired by Greece.
The problem of the survival of foreign nationals' rights upon succession
is inevitably closely bound up with ideological differences and economic
pressures.

State succession and nationality 242
The issue of state succession and nationality links together not only those
two distinct areas, but also the question ofhuman rights. The terms under
6 RIAA, p. 120 ( 1 9 2 3 ) ;2 AD, p. 66. See also the Hatvaiiafl Claifns case, 6 RIAA, p. 157( 1 9 2 5 ) ;3 A D , p. 80.
'4' 12 RIAA, p. 155 ( 1 9 5 6 ) ;23 ILR, p. 659. Cf. the decision of the Namibian Supreme Courtin Minister of Defence, Natnibia v. Mwandinghi 91 ILR, p. 341, taking into account theprovisions of the Namibian Constitution.
242 See O'Connell, State Succession, vol. I, chapters 20 and 21; P. Weis, Nationality and Statelessness in International Latv, 2nd edn, Alphen aan den Rijn, 1979; C. Economides, 'Les
Effets de la Succession d'Etats sur la Nationalite', 103 RGDIP, 1999, p. 577; Nationalitd,
Minoriths et Successiorl d'Etats en Europe de 1'Est (eds. E. Decaux and A . Pellet), Paris,
1996; European Comnlission for Democracy Through Law, Citizenship and State SUCcession, Strasbourg, 1997; Oppenheim's International Law, p. 218, and Reports of theInterilatioilal Law Commission, Ai50110, 1995, p. 68; A i 5 l i l 0 , 1996, p. 171; Al52110,
1997, p. 11; Al53110, 1998, p. 189 and Al54110, 1999, p. 12. See also above, chapters 12,
p. 584, and 14, p. 721.
'40

908

I N T E R N A T I O N A L LAW

which a state may award nationality are solely within its control243but
problems may arise in the context of a succession. In principle, the issue
of nationality will depend upon the municipal regulations of the predecessor and successor states. The laws of the former will determine theextent to which the inhabitants of an area to be ceded to another authority will retain their nationality after the change in sovereignty, while thelaws of the successor state will prescribe the conditions under which the
new nationality will be granted. The general rule would appear to bethat nationality will change with sovereignty, although it will be incumbent upon the new sovereign to declare the pertinent rules with regard
to people born in the territory or resident there, or born abroad ofparents who are nationals of the former regime. Similarly, the cedingstate may well provide for its former citizens in the territory in question to retain their nationality, thus creating a situation of dual nationality. This would not arise, of course, where the former state completely
disappears.
Some states acquiring territory may provide for the inhabitants to obtain the new nationality automatically while others may give the inhabitants an option to depart and retain their original nationality. Actual
practice is varied and much depends on the circumstances, but it should
be noted that the 1961 Convention on the Reduction of Statelessness provides that states involved in the cession of territory should ensure that no
person becomes stateless as a result ofthe particular change in sovereignty.
There may indeed be a principle in international law to the effect thatthe successor state should provide for the possibility of nationals of thepredecessor state living in or having a substantial connection with the territory taken over by the successor ~ t a t e . ~It" may indeed be, on the other
hand, that such nationals have the right to choose their nationality insuch situations, although- this is unclear. The Arbitration Commission on
Yugoslavia referred in this context to the principle of self-determination
as proclaimed in article 1 of the two International Covenants on Human
Rights, 1966. The Commission stated that, 'by virtue of that right every
individual may choose to belong to whatever ethnic, religious or language
See e.g article 1 of the Hague Convention on Certain Questions relating to the Conflict of
Natio~lalitvLaws, 1930, the Nationality Decrees in Tunis and ,Morocco case, PCIJ, Series B,
No. 4, p. 24 (1923); 2 AD, p. 349, the Acquisition of Polisll Nationality case, PCIJ, Series
B,No. 7, p. 16; 2 AD, p. 292, and the Nottebohrn case, ICJ Reports, 1955, p. 23; 22 ILR,
p. 349.
244 See Oppenheinl's International La~cl,p. 219.
243

STATE S U C C E S S I O N

community he wishes'. Further, it was noted that:In the Commission's view one possible consequence of this principle might
be for the members of the Serbian population in Bosnia and Herzegovina
and Croatia to be recognised under agreements between the Republics as
having the nationality of their choice, with all the rights and obligations
which that entails with respect to the states concerned.24s

In 1997 the European Convention on Nationalitywas adopted.246Article 19 provides that states parties should seek to resolve issues concerning
nationality and state succession by agreement between themselves. Article 18 stipulates that in deciding on the granting or the retention ofnationality in cases of state succession, each state party concerned shalltake account, in particular, of the genuine and effective link of the person
concerned with the state; the habitual residence of the person concernedat the time of state succession; the will of the person concerned and theterritorial origin of the person concerned. In the case of non-nationals,
article 20 provides for respect for the principle that nationals of a predecessor state habitually resident in the territory over which sovereignty istransferred to a successor state and who have not acquired its nationality
shall have the right to remain in that state.
In 1999, the International Law Commission adopted Draft Articles on
Nationality of Natural Persons in Relation to a Succession of
Article 1 (defined as the 'very foundation' of the draft articlesX48),reaffirming the right to a nationality, provides that individuals who on thedate of succession had the nationality of the predecessor state, irrespective of the mode of acquisition of that nationality, have the right to thenationality of at least one of the states concerned. States are to take allappropriate measures to prevent persons who had the nationality of thepredecessor state on the date of succession from becoming stateless as a
Opinion No. 2,92 ILR, pp. 167,168-9. The Commission concluded by stating that the Republics 'must afford the members of those minorities and ethnic groups [i.e. the Serbian
population in Bosnia-Herzegovina and Croatia] all the human rights and fundamental freedoms recognised in international law, including, where appropriate, the right tochoose their nationality: ibid.,p. 169.
246 See also the Declaration on the Consequences of State Succession for the Nationality of
Natural Persons, European Commission for Democracy Through Law, 1996, CDL-NAT(1996)007e-rev-restr.
247 See Report of the International Law Coinmission on its 51st Session, h154110, 1999,
p. 12.
248 Ibid., p. 29.

9lO

I N T E R N A T I O N A L LAW

result of the succession,249while persons having their habitual residence
in the territory concerned are presumed to acquire the nationality of thesuccessor
The intention of the latter provision is to avoid a gap
arising between the date of succession and the date of any agreement orlegislation granting nationality."' Article 11 stipulates that each state concerned shall grant a right to opt for its nationality to persons concerned
who have appropriate connection with that state if those persons would
otherwise become stateless as a result of the succession of states, and thatwhen this right has been exercised, the state whose nationality they have
opted for shall attribute its nationality to such persons. Conversely, thestate whose nationality they have renounced shall withdraw its nationality
from such persons, unless they would thereby become stateless. Article
12 provides that where the acquisition or loss of nationality in relation to
the succession of states would impair the unity of a family, the states concerned shall take all appropriate measures to allow that family to remain
together or to be reunited.'j2
The second part of the set of draft articles concerns specific succession
situations and their implications for nationality. Article 20 concerns thesituation where one state transfers part of its territory to another state.
Here the successor state shall attribute its nationality to the persons concerned who have their habitual residence in the transferred territory andthe predecessor state shall withdraw its nationality from such persons,unless otherwise indicated by the exercise of the right of option whichsuch persons shall be granted. The predecessor state shall not, however,withdraw its nationality before such persons acquire the nationality ofthe successor state. Where two or more states unite to form one successor state, the successor state shall attribute its nationality to all persons
who on the date of succession held the nationality of the predecessor~ r t i c l e4. Article 16 provides that persons concerned shall not be arbitrarily deprivedof the nationality of the predecessor state nor arbitrarily denied the right to acquire thenationality of the successor state.
"O
Article 5. Article 12 states that the status of persons concerned as habitual residents shallnot be affected by the succession of states.
Report of the International Law Commission on its 51st Session, p. 40.
A child born after the date of succession who has not acquired any nationality has
the right to the nationality of the state concerned on whose territory heishe was born,
article 13.
'j3 Article 21. This the Commission concluded was a rule of customary law: see Report of
the International Law Coinmission on its 51st Session, p. 80.
"9

'"

'"

STATE S U C C E S S I O N

911In the case both of the dissolution of the predecessor state to form two
or more successor states and the separation of parts of a territory to form
one or more successor states while the predecessor state continues to exist,
the same fundamental rules apply. Articles 22 and 24 respectively providethat each successor state shall, unless otherwise indicated by the exercise
of a right of option,254attribute its nationality to (a) persons concerned
having their habitual residence in its territory; and (b) other persons concerned having an appropriate legal connection with a constituent unit of
the predecessor state that has become part of that successor state; and to(c) persons not otherwise entitled to a nationality of any state concerned
having their habitual residence in a third state, who were born in or, before
leaving the predecessor state, had their last habitual residence in what has
become the territory of that successor state or having any other approyriate connection with that successor state.255These provisions are meant toprevent a situation, such as occurred with regard to some successor statesof the former Yugoslavia and Czechoslovakia, where the test of nationality of the successor state centred upon the possession of the citizenshipof the former constituent republics rather than upon habitual residence,thus having the effect of depriving certain persons of the nationality ofthe successor state.256
254 Article 23 provides that successor states shall grant a right of option to persons concerned

covered by the provisions of article 22 who are qualified to acquire the nationality of
two or more successor states, while each successor state shall grant a right to opt for its
nationality to persons coilcerned who are not covered by the provisions of article 22.
Where the predecessor state continues, article 26 provides that both the predecessor andsuccessor states shall grant a right of option to all persons concerned who are qualified
to have the nationality of both the predecessor and successor states or of two or inore
successor states.
255 111 the case of categories (b) and (c), the provisio~ldoes not apply to persons who havetheir habitual residence in a third state and also have the nationality of that other or any
other state: see article 8.
"'" See Report of the International Law Commission on its 5lst Session, pp. 83-5, andJ. F. Re~ek,'Le Droit International de la Nationalitt', 198 HR, 1986, pp. 342-3. Article 25
provides that in the case where the predecessor state continues, then it shall withdraw
its nationality from persons concerned ~ v h oare qualified to acquire the nationality ofthe successor state in accordance with article 24. It shall not, however, withdraw its
nationality before such persons acquire the nationality of the successor state. Unlessotherwise iildicated by the exercise of a right of option, the predecessor state shall not,however, withdraw its nationality from such persons who: (a) have their habitual residence
in its territory; (b) are not covered by subparagraph (a) and have an appropriate legal
connection with a constituent unit of the predecessor state that has remained part of thepredecessor state; (c) have their habitual residence in a third state, and were born in or,912

I N T E R N A T I O N A L LAW

Hong Kong 257
Of particular interest in the context of state succession and the decolonisation process has been the situation with regard to Hong Kong. While
Hong Kong island and the southern tip of the Kowloon peninsula (withStonecutters island) were ceded to Britain in perpetuity,258the New Territories (comprising some 92 per cent of the total land area of the territory)
were leased to Britain for ninety-nine years commencing 1 July 1898.~"
Accordingly, the British and Chinese governments opened negotiations
and in 1984 reached an agreement. This Agreement took the form of a
Joint Declaration and Threeand lays down the system underwhich Hong Kong has been governed as from 1 July 1997. A Hong Kong
Special Administrative Region (SAR) was established, which enjoys a highdegree of autonomy, except in foreign and defence affairs. It is vested withexecutive, legislative and independent judicial power, including that offinal adjudication. The laws of Hong Kong remain basically unaffected.
The government of the SAR is composed of local inhabitants and the current social and economic systems continue unchanged. The SAR retains
the status of a free port and a separate customs territory and remains aninternational financial centre with a freely convertible currency. Using thename of 'Hong Kong, China', the SAR may on its own maintain and develop economic and cultural relations and conclude relevant agreementswith states, regions and relevant international organisations. Existing systems of shipping management continue and shipping certificates relating
to the shipping register are issued under the name of 'Hong Kong, China'.
These policies are enshrined in a Basic Law of the SAR to remain unchanged for fifty years. Annex I of the Agreement also provides that public
servants in Hong Kong, including members of the police and judiciary,
will remain in employment and upon retirement will receive their pension
and other benefits due to them on terms no less favourable than before
and irrespective oftheir nationality or place ofresidence. Airlines incorporated and having their principal place of business in Hong Kong continue
before leaving the predecessor state, had their last habitual residence in what has remained
part of the territory of the predecessor state or have any other appropriate connection
with that state.
See e.g. R. Mushkat, One Country, TWOInternutiorla1 Legal Personalities, Hong Kong, 1997,
and Mushkat, 'Hong Kong and Succession of Treaties', 46 ICLQ, 1997, p. 181.
'j8 See the Treaty of Nanking, 1842,30 BFSP, p. 389 and the Convention of Peking, 1860,50
BFSP, p. 10.
-"7 - 90 BFSP, p. 17. All three treaties were denounced by China as 'unequal treaties'.
See 23 ILM, 1984, p. 1366.

'''

STATE S U C C E S S I O N

913

to operate and the system of civil aviation management continues. The
SAR has extensive authority to conclude agreements in this field. Rights
and freedoms in Hong Kong are maintained, including freedoms of theperson, of speech, of the press, of assembly, of belief, of movement, tostrike and to form and join trade unions. In an important provision, article XI11 of Annex I stipulates that the provisions of the International
Covenants on Human Rights, 1966 are to continue in force. Accordingly,
a high level of succession is provided for, but it is as well to recognise thatthe Hong Kong situation is unusual.
Suggestions for further reading
M. Craven, 'The Problem of State Succession and the Identity of States underInternational Law', 9 EJIL, 1998, p. 142
D. P. O'Connell, State Successiori in Municipal Law and Interizatiorial Law,
Cambridge, 2 vols., 1967
M. N. Shabv, 'State Succession Revisited', 5 Finnish YIL, 1994, p. 34
Succession of States (ed. M . Mrak), The Hague, 1999

The settlement of disputes by peaceful means

It is fair to say that international law has always considered its fundamental
purpose to be the maintenance ofpeace.' Although ethical preoccupations
stimulated its development and inform its growth, international law has
historically been regarded by the international community primarily as ameans to ensure the establishment and preservation of world peace andsecurity. This chapter is concerned with the non-binding methods andprocedures available within the international order for the peaceful resolution of disputes and conflicts.
Basically the techniques of conflict management fall into two categories: diplomatic procedures and adjudication. The former involves anattempt to resolve differences either by the contending parties themselves
or with the aid of other entities by the use of the discussion and factfinding methods. Adjudication procedures involve the determination bya disinterested third party of the legal and factual issues involved, either
by arbitration or by the decision of judicial organs.
See generally, J. G . Merrills, International Dispute Settlement, 3rd edn, Cambridge, 1998; J.
Collier and \! Lowe, The Settlement of Disputes in International Law, Cambridge, 1999;
United Nations, Handbook on the Peaceful Settlement of Disptrtes Between States, New
York, 1992; L. Henkin, R. C. Pugh, 0 . Schachter and H. Smit, Internatiorlal Laiv Casesand ~Mr~terials,
3rd edn, St Paul, 1993, chapter 10; David Davies Memorial Institute, Interrlationrzi Disputes: The Legal Aspects, London, 1972; K. \'. Raman, Dispute Settlement
Through the UN, Dobbs Ferry, 1977; 0. R. Young, The Intermediaries, Princeton, 1967;
D. W. Ro~vett,'Contemporary Developments in Legal Techniques in the Settlement of Disputes', 180 HR, 1983, p. 171, and B. S. Murty, 'Settlement of Disputes' in ,Manual of Public
International Law (ed. M . Snrensen), London, 1968, p. 673. See also Nguyen Quoc Dinh,
P. Daillier and A. Pellet, Droit International Public, 7th edn, Paris, 2002, p. 821; K. OellersFrahm and A. Zimmermann, Dispute Settlement in Public International Law, Berlin, 2001;
C. P. Economides, 'L'Obligation de Reglement Pacifique des Diffkrends Internationaux' in
MilailgesBoutros-Ghnli, Brussels, 1999, p. 405; P. Pazartzis, Les Eizgageinents Internntiona~~x
ell Matiere de Reglernelit Pacifiqme des Diffkrends eiltre Etats, Paris, 1992, and The UNDecade
oflifternotionalLulv: Re-flectioizs oiz InternatioiiulDispute Settlelneiit (eds. M . Brus, S. Muller
and S.mriemers),Dordrecht, 1991.

SETTLEMENT OF DISPUTES

9l5

The political approach to conflict settlement is divided into two sections, with the measures applicable by the United Nations being separately
examined in chapter 22 as they possess a distinctive character. The adjudication processes will be looked at in the following chapter, being divided
so as to differentiate the techniques of arbitration and judicial settlement.
Although for the sake of convenience each method of dispute settlement
is separately examined, it should be noted that in any given situation a
range of mechanisms may well be utilised. A good example of this is afforded by the successful settlement of the Chad-Libya boundary dispute.
Following a long period of conflict and armed hostilities since the dispute
erupted in 1973, the two states signed a Framework Agreement on thePeaceful Settlement of the Territorial Dispute on 31 August 1989 in which
they undertook to seek a peaceful solution within one year. In the absence of a political settlement, the parties undertook to take the matter tothe International ~ o u r tAfter. ~ inconclusive negotiations, the dispute wassubmitted to the International Court by notification of the Framework
Agreement by the two parties3 The decision of the Court was deliveredon 3 February 1994. The Court accepted the argument of Chad that theboundary between the two states was defined by the Franco-Libyan Treatyof 10 August 1955.~Following this decision, the two states concluded anagreement providing for Libyan withdrawal from the Aouzou Strip by 30
May 1994. The agreement provided for monitoring of this withdrawal by
United Nations observer^.^ The two parties also agreed to establish a joint
team of experts to undertake the delimitation of the common frontierin accordance with the decision of the International C ~ u r t On
. ~ 4 May
1994, the Security Council adopted resolution 915 (1994) establishing
the UN Aouzou Strip Observer Group (UNASOG) and authorising the
deployment of observers and support staff for a period up to forty days.'"ee Report of the UN Secretary-General, S119941512, 27 April 1994, 33 ILM, 1994, p. 786
Strip: A Legal and Historical Analysis:
and generally M. M. Ricciardi, 'Title to the AOUZOU
17 Yale Journal oflnternutional LNIV,1992, p. 301.
Libya on 31 A ~ ~ g u1990
s t and Chad on 3 September 1990: see the Libya/Chad case, ICJ
Reports, 1994, pp. 6 , 14; 100 ILR, pp. 1, 13.
ICJ Reports, 1994, p. 40; 100 ILR, p. 39.
100 ILR, p. 102, article 1. See also 33 ILM, 1994, p. 619.
100 ILR, p. 103, article 6. See also the letter of the UN Secretary-General to the Security
Council, S119941432, 13 April 1994, ibid., pp. 103-4.
Note that on 14 April, the Security Council adopted resolution 910 (1994) by which theinitial UN reconnaissance team was exempted from sanctions operating against Libya by
virtue of resolution 748 (1992). The observer group received a similar exemption by virtueof resolution 915 B.

'

9l6

I N T E R N A T I O N A L LAW

On 30 May, Libya and Chad signed a Joint Declaration stating that thewithdrawal of the Libyan administration and forces had been effected asof that date to the satisfaction of both parties as monitored by UNASOG.~
The Security Council terminated the mandate of UNASOG upon the successful conclusion of the mission by resolution 926 (1994) on 13 June thatyear.'
However, states are not obliged to resolve their differences at all, and thisapplies in the case of serious legal conflicts as well as peripheral political
disagreements. All the methods available to settle disputes are operative
only upon the consent of the particular states. This, of course, can becontrasted with the situation within municipal systems. It is reflected in
the different functions performed by the courts in the international anddomestic legal orders respectively, and it is one aspect of the absence of astable, central focus within the world community.
The mechanisms dealing with the peaceful settlement of disputes require in the first instance the existence of a dispute. The definition of adispute has been the subject of some consideration by the International
Court,'' but the reference by the Permanent Court in the Mavrommatis
Palestine Concessions (Jurisdiction)case" to 'a disagreement over a pointof law or fact, a conflict of legal views or of interests between two persons'constitutes an authoritative indication. A distinction is sometimes madebetween legal and political disputes, or justiciable and non-justiciable disputes.12 Although maintained in some international treaties, it is to someextent unsound, in view of the fact that any dispute will involve somepolitical considerations and many overtly political disagreements may
be resolved by judicial means. Whether any dispute is to be termed legal
or political may well hinge upon the particular circumstances of the case,the views adopted by the relevant parties and the way in which they choose
to characterise their differences. It is in reality extremely difficult to point
to objective general criteria clearly differentiating the two.13 This does
not, however, imply that there are not significant differences between thelegal and political procedures available for resolving problems. For one
See Report of the UN Secretary-General, S119941672, 6 June 1994, 100 ILR, pp. 111 ff.
The Joint Declaration was countersigned by the Chief Military Observer of UNASOG asa witness.
Ibid., p. 114.
l o See further below, chapter 19, p. 969.
l 1 PCIr, Series A, No. 2, 1924, p. 11.
l 2 See H. Lauterpacht, The Function o f l a w in the International Community, London, 1933,
especially pp. 19-20.
l3 See further below, p. 969.

SETTLEMENT OF DISPUTES

9l7

thing, the strictly legal approach is dependent upon the provisions of thelaw as they stand at that point, irrespective of any reforming tendencies
the particular court may have, while the political techniques of settlement
are not so restricted. It is also not unusual for political and legal organs
to deal with aspects of the same basic situation.'"The role of political influences and considerations in inter-state disputes is obviously a vital one, and many settlements can only be properly
understood within the wider international political context. In addition,
how a state proceeds in a dispute will be conditioned by political factors.
If the dispute is perceived to be one affecting vital interests, for example,
the state would be less willing to submit the matter to binding third party
settlement than if it were a more technical issue, while the existence ofregional mechanisms will often be of political significance.
Article 2 ( 3 ) of the United Nations Charter provides that:[all1 members shall settle their iilterilational disputes by peaceful meails
in such a manner that international peace and security and justice are notendangered.

The 1970 Declaration on Principles of International Law Concerning
Friendly Relations and Co-operation among States15 develops this principle and notes that:states shall accordingly seek early and just settlement of their international
disputes by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort t o regional agencies or arrangements or other peaceful means of their choice.

The same methods of dispute settlement are stipulated in article 33(1)of the UN Charter, although in the context of disputes the continuance of which are likely to endanger international peace and security.
The 1970 Declaration, which is not so limited, asserts that in seeking
an early and just settlement, the parties are to agree upon such peacefulmeans as they see appropriate to the circumstances and nature of the
dispute.
the Iranian Hostages case, ICJ Reports, 1980, pp. 3,22-3; 76 ILR, pp. 530, 548-9 andthe Nicaragua case, ICJ Reports, 1984, pp. 392,435-6; 76 ILR, pp. 104, 146-7.
l5 General Assembly resolution 2625 (XXV).See also the Manila Declaration on the PeacefulSettlement of International Disputes, General Assembly resolution 371590; resolutions
2627 (XXV);2734 (XXV);4019; the Declaratioil on the Prevention andReinoval ofDisputes
and Situations which may Threaten International Peace and Security, resolution 43151 andthe Declaration on Fact-findiilg, resolutioil46159.

"' ee

9l8

I N T E R N A T I O N A L LAW

There would appear, therefore, to be no inherent hierarchy with respect to the methods specified and no specific method required in any
given situation. States have a free choice as to the mechanisms adopted
for settling their disputes.16 This approach is also taken in a number of regional instruments, including the American Treaty on Pacific Settlement(the Pact of Bogota), 1948 of the Organisation of American States, theEuropean Convention for the Peaceful Settlement of Disputes, 1957 andthe Helsinki Final Act of the Conference on Security and Co-operation in
Europe, 1975. In addition, it is to be noted that the parties to a dispute havethe duty to continue to seek a settlement by other peaceful means agreed
by them, in the event of the failure of one particular method. Should themeans elaborated fail to resolve a dispute, the continuance of which islikely to endanger the maintenance of international peace and security,
the parties under article 37(1) of the Charter, 'shall refer it to the Security~ouncil'.'~Diplomatic methods of dispute settlement

Negotiation I s
Of all the procedures used to resolve differences, the simplest and mostutilised form is understandably negotiation. It consists basically of discussions between the interested parties with a view to reconciling divergent
opinions, or at least understanding the different positions maintained. It
does not involve any third party, at least at that stage, and so differs fromthe other forms of dispute management. In addition to being an extremely
active method of settlement itself, negotiation is normally the precursor
Ih

See article 33(1) of the UN Charter and section 1(3) and (10) of the Manila Declaration.

l8

See UN Handbook, chapter 11; Collier and Lowe, Settlement, chapter 2; Merrills, International Dispute Settlement, chapter 1 , and H. Lachs, 'The Law and Settlement of International Disputes' in Brus et al., Dispute Settlenzent, pp. 287-9. See also Murty, 'Settlement',p p 678-9; A. T17atson,Diplomacy, London, 1982; F. Kirgis, Prior Consultation in International Law, Charlottesville, 1983; P. J. De Waart, The Elenlent of Negotiation in the
Pacific Settlement of Disputes between States, The Hague, 1973; A. Lall, Modern Internatiorial Negotiation, New York, 1966; G. Geamanu, 'Theorie et Pratique des Negociations
en Droit International: 166 HR, 1980 I, p. 365; B. Y. Diallo, Introduction a /'Etude et ala Pratique de la N6gociatior1, Paris, 1998; N. E. Ghozali, 'La Negociation Diplomatiquedans la Turisprudence Internationale', Revue Belge de Droit International, 1992, p. 323, and
D. Anderson, 'Negotiations and Dispute Settlement' in Remedies in International Law (ed.
M. Evans), Oxford, 1998, p. 111. Note also that operative paragraph 10 of the Manila Declaration emphasises that direct negotiations are a 'flexible and effective means of peacefulsettlement:" Emphasis added.

SETTLEMENT OF DISPUTES

9l9

to other settlement procedures as the parties decide amongst themselves
how best to resolve their differences.19 It is eminently suited to the clarification, if not always resolution, of complicated disagreements. It is bymutual discussions that the essence of the differences will be revealed andthe opposing contentions elucidated. Negotiations are the most satisfactory means to resolve disputes since the parties are so directly engaged.
Negotiations, of course, do not always succeed, since they do depend ona certain degree of mutual goodwill, flexibility and sensitivity. Hostile
public opinion in one state may prevent the concession of certain points
and mutual distrust may fatally complicate the process, while opposing
political attitudes may be such as to preclude any acceptable negotiatedagreement.20
In certain circumstances there may exist a duty to enter into negotiations arising out ofparticular bilateral or multilateral agreement^,^^ whilesome treaties may predicate resort to third-party mechanisms upon the
failure of negotiation^.^^ In addition, although it has been emphasised
that: 'Neither in the Charter or otherwise in international law is any
general rule to be found to the effect that the exhaustion of diplomaticnegotiations constitutes a precondition for a matter to be referred to theJudge Nervo, Fisherzes Jurisdiction case, ICJ Reports, 1973, pp. 3,45; 55 ILR, pp. 183,
225. See also the Mavrornr?zatis Palestine Concessions case, PCIJ, Series A, No. 2, 1924,
p. 15, noting that 'Before a dispute can be made the subject of an action at law, its subject
matter should have been clearly defined by diplomatic negotiations', and the Right ofPassizge (Preliminary Obiections) case, ICJ Reports, 1957, pp. 105, 148; 24 ILR, pp. 840,
848-9. The Court noted in the Free Zones of L'pper Savoy and the District of Gex case, PCIJ,
Series A, No. 22, p. 13; 5 AD, pp. 461, 463, that the judicial settlement of disputes was'simply an alternative to the direct and friendly settlement of such disputes between theparties:
Note that certain treaties provide for consultations in certain circumstances: see article
84 of the Vienna Convention on the Representation of States in their Relations with
International Organisations, 1975; article 41 of the Convention on Succession of States
in Respect of Treaties, 1978 and article 42 of the Convention on Succession of States in
Respect of Property, Archives and Debts, 1983. Article282( 1 ) ofthe Convention on theLawof the Sea, 1982 provides that when a dispute arises between states parties concerning theinterpretation or application of the Convention, 'the parties to the dispute shall proceed
expeditiously to an exchange of views regarding its settlement by negotiation or otherpeaceful means'.
See the Fisheries Jurisdiction case, ICJ Reports, 1974, p. 3; 55 ILR, p. 238. See also article
8(2) of the Antarctic Treaty, 1959; article 15 of the Moon Treaty, 1979; article 41 of theVienna Convention on Succession of States in Respect of Treaties, 1978; article 84 of theVienna Convention on the Representation of States in their Relations with International
Organisations, 1975 and article 283 of the Conveiltion on the Law of the Sea, 1982.
--7 , See e.g. the Revised General Act for the Settlement of Disputes 1949; the Interilational
Maritime Orgallisation Treaty, 1948 and the Conveiltion on the Law of the Sea, 1982.
"' ee

'"

920

I N T E R N A T I O N A L LAW

it is possible that tribunals may direct the parties to engage
in negotiations in good faith and may indicate the factors to be taken
into account in the course of negotiations between the parties.24Where
there is an obligation to negotiate, this would imply also an obligation
to pursue such negotiations as far as possible with a view to concluding
agreements.25 The Court held in the North Sea Continental Shelfcases
that:the parties are under an obligation to enter into negotiations with a viewto arriving at an agreement, and not merely to go through a formal processof negotiation as a sort of prior condition.. .they are under an obligation
so to conduct themselves that the negotiations are meaningful, which will
not be the case when either of then1 insists upon its own position without
contemplating any modification of it.I6

The Court in the German External Debts case emphasised that although
an agreement to negotiate did not necessarily imply an obligation to reachan agreement, 'it does imply that serious efforts towards that end will be
made'.27 In the Lac Lai~ouxarbitration, it was stated that 'consultations
and negotiations between the two states must be genuine, must comply
with the rules of good faith and must not be mere forn~alities'.~~Examples of infringement of the rules of good faith were held to include theunjustified breaking off of conversations, unusual delays and systematicrefusal to give consideration to proposals or adverse interest^.'^
The point was also emphasised by the International Court in the Legality of the Threat or Use ofNuclear Weapons, where it noted the reference inarticle VI of the Treaty on the Non-Proliferation of Nuclear Weapons to'' Cameroon v. Nigeria (Preliminary Objectiol~s),ICT Reports, 1998, pp. 275, 303.
24

See the North Sea Continerltal Shelfcases, ICJ Reports, 1969, pp. 3, 53-4; 41 ILR, pp. 29,
83. See also the Fisheries Jurirdiction case, ICJ Reports, 1974, pp. 3, 32; 55 ILR, pp. 238,
267.

"'ee

the Railway Trafic between Lithuania and Poland case, PCIJ, Series AIB, No. 42,
p. 116; 6 AD, pp. 403, 405. Section I , paragraph 10 of the Manila Declaration declaresthat when states resort to negotiations, they should 'negotiate meaningfully, in order toarrive at an early settlement acceptable to the parties: Article 4(e) of the International
Law Association's draft International Instrument on the Protection of the Environment
from Damage Caused by Space Debris provides that 'to negotiate in good faith.. . meansinter alia not only to hold consultations or talks but also to pursue them with a view ofreaching a solution': see Report of the Sixty-sixth Conference, Buenos Aires, 1994,p. 319.
26 ICJ Reports, 1969, pp. 3,47; 41 ILR, pp. 29, 76. The Court has noted that, 'like all similar
obligations to negotiate in international law, the negotiations have to be conducted ingood faith', Cameroon v. Nigeria, ICJ Reports, 2002, para. 244.
" 47 ILR, pp. 418,454.
28 24 ILR, pp. 101, 119.
?"bid., p. 128. See also the Tacna-Arica Arbitration, 2 RIAA, pp. 921 ff.

SETTLEMENT OF DISPUTES

921'pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament,
and on a treaty on general and complete disarmament under strict andeffective international control'. The Court then declared that:
The legal import of that obligation goes beyond that of a mere obligation of
conduct: the ohligation illvolved here is an obligation to achieve a precise
result - nuclear disarmament in all it aspects - by adopting a particular
course of conduct, namely, the pursuit of negotiations o n the matter ingood faith.''Where disputes are by their continuance likely to endanger the maintenance of international peace and security, article 33 of the UN Charter
provides that the parties to such disputes shall first of all seek a solution
by negotiation, inquiry or mediation, and then resort, if the efforts havenot borne fruit, to more complex forms of re~olution.~'Good offices arid mediation''

The employment of the procedures of good offices and mediation involves the use of a third party, whether an individual or individuals, astate or group of states or an international organisation, to encourage
the contending parties to come to a settlement. Unlike the techniques ofarbitration and adjudication, the process aims at persuading the parties
to a dispute to reach satisfactory terms for its termination by themselves.
Provisions for settling the dispute are not prescribed.
Technically, good offices are involved where a third party attempts to
influence the opposing sides to enter into negotiations, whereas mediation implies the active participation in the negotiating process of the third
party itself. In fact, the dividing line between the two approaches is often
difficult to maintain as they tend to merge into one another, depending upon the circumstances. One example of the good offices method is'O

ICJ Reports, 1996, 1717. 226,263-4; 110 ILR, p. 163.

" See the North Sea Continental Shelfcases, ICJ Reports, 1969, pp. 3,47; 41 ILR, pp. 29, 77
cases, ICJ Reports, 1974, pp. 3, 32; 55 ILR, p. 267.
and the Fisheries J~~risdiction'' See UN Handbook, p. 33; Collier and Lowe, Settlelnent, p. 27; Merrills, International Dispute Settlement, chapter 2; R. R. Probst, 'Good Offices' In the Light of Swiss Ir~terr~ational
Practice and Experience, Dordrecht, 1989; New Approadw to International Mediation (eds.
C. R. Mitchell and K. Webb), New York, 1988; J. Brierly, The Latv of Nations, 6th edn,
Oxford, 1963, pp. 373-6, and Murty, 'Settlement: pp. 680-1. See also International Mediation in Theory and Practice (eds. S . Touval and I. 1lr. Zartman), Boulder, 1985, andMediation in International Relations (eds. 1. Bercovitch and J. Z. Rubin), London, 1992.

922

I N T E R N A T I O N A L LAW

the role played by the US President in 1906 in concluding the RussianJapanese war," or the function performed by the USSR in assisting in~~
the peaceful settlement of the India-Pakistan dispute in 1 9 6 5 . Anothermight be the part played by France in encouraging US-North Vietnamesenegotiations to begin in Paris in the early 1970s." A mediator, such as the
US Secretary of State in the Middle East in 1973-4," has an active andvitalfunction to perform in seeking to cajole the disputing parties into accepting what are often his own proposals. It is his responsibility to reconcile
the different claims and improve the atmosphere pervading the discussions. The UN Secretary-General can sometimes play an important roleby the exercise of his good offices." An example of this was provided in
the situation relating to Afghanistan in 1988. The Geneva Agreements ofthat year specifically noted that a representative of the Secretary-General
would lend his good offices to the parties.38Good offices may also be undertaken by the Secretary-General jointly with office-holders of regional~r~anisations.~~
The Hague Conventions of 1899 and 1907 laid down many of the rules
governing these two processes. It was stipulated that the signatories tothe treaties had a right to offer good offices or mediation, even duringhostilities, and that the exercise of the right was never to be regarded byeither of the contending sides as an unfriendly act.40It was also explainedthat such procedures were not binding. The Conventions laid a duty
" Murty, 'Settlement',

p. 681. Note also the exercise of US good offices in relation to aterritorial dispute between France in regard to its protectorate of Cambodia and Thailand,
SCOR, First Year, 81st meeting, pp. 505-7.
14 See GAOR, 21st session, supp, no. 2, part I, chapter 111.
See AFDI, 1972, pp. 995-6. Note also the role played by Cardinal Sanlore, a Papal mediatorin the Beagle Channel dispute between Argentina and Chile, between 1978 and 1985: see~Merrills,Itztertzational Dispute Settlement, p. 29, and 24 ILM, 1985, pp. 1 ff. See also below,
chapter 19, p. 958.
j6 See DUSPIL, 1974, pp. 656-8 and ibid., pp. 759-62.
See Security Council resolution 367 (1975) requesting the UN Secretary-General to undertake a good offices mission to Cyprus. See the statement by the Secretary-General of
the functions of good offices cited in UN Handbook, 1717. 35-6. See also B. G. Ramcharan,'The Good Offices of the United Nations Secretary-General in the Field of Human Rights',
76 AJIL, 1982, p. 130. Note also paragraph 12 of the Declaration on the Prevention and Removal of Disputes and Situations n%ich May Threaten International Peace and Security,
1988, General Assembly resolution 43151. See also below, chapter 22, p. 1106.
" S119835, annex. See also Security Council resolution 622 (1988).
39 For example with the Chairman of the Organisation of African Unity with regard to theWestern Sahara and Mayotte situations, UN Handbook, p. 39, and with the SecretaryGeneral of the Organisation of American States with regard to Central America, ibid.
40 Article 3 of Hague Convention No. I, 1899 and Convention No. I, 1907.

''''

SETTLEMENT OF DISPUTES

923

upon the parties to a serious dispute or conflict to resort to good offices
or mediation as far as circumstances allow, before having recourse toarms.41This, of course, has to be seen in the light of the relevant Charter
provisions regarding the use of force, but it does point to the part thatshould be played by these diplomatic procedures.

Where differences of opinion on factual matters underlie a dispute between parties, the logical solution is often to institute a commission of
inquiry to be conducted by reputable observers to ascertain precisely thefacts in ont tent ion.^^ Provisions for such inquiries were first elaborated in
the 1899 Hague Conference as a possible alternative to the use of arbitraHowever, the technique is limited in that it can only have relevancein the case of international disputes, involving neither the honour nor
the vital interests of the parties, where the conflict centres around a genuine disagreement as to particular facts which can be resolved by recourse
to an impartial and conscientious inve~tigation.~'Inquiry was most successfully used in the Dogger Bank incident of 1904
where Russian naval ships fired on British fishing boats in the belief thatthey were hostile Japanese torpedo craft.46 The Hague provisions were

" Ibid., article 2.
" See Collier andLowe, Settlement, p. 24; Merrills, lnternationalDisputeSettlemei~f,chapter 3,
and N. Bar-Yaacov, The Handling of Irlterrlational Disputes by Means of Inquiry, London,
1974. See also UN Handbook, pp. 24 ff.; T. Bensalah, L'Enquite Internationale dans leRiglement des Conflits, Paris, 1976; P. R~~egger,'Quelques Reflexions sur le Rble Actuel etFutur des Con~missionsInternationales d'Enquete' in Meluiiges Bindscliedler, Paris, 1980,
p. 427, and Ruegger, 'Nouvelles Reflexions sur le RBle des Procedures Internationales
d'EnquPte dans la Solution des Conflits Internationaux' in Etudes en 1'Honneur de Robert
Ago, Milan, 1987, p. 327.
Inquiry as a specific procedure under consideration here is to be distinguished from thegeneral process of fact-finding as part of other mechanisms for dispute settlement, suchas through the UN or other institutions. See Fact-Finding Before Iizternational Tribunals(ed. R. B. Lillich), Charlottesville, 1992.
44 See Bar-Yaacov, Interrzational Disputes, chapter 2. The incident of the destruction of the US
battleship Maine in 1898, which precipitated the American-Spanish War, was particularly
noted as an impetus to the evolution of inquiry as an important 'safety valve' mechanism,
ibid., pp. 33-4. This was particularly in the light of the rival national inquiries that came
to opposing conclusions in that episode: see the inquiry commission in that case, Arlnual
Register, 1898, p. 362.
45 Article 9, 1899 Hague Convention for the Pacific Settlement of International Disputes.
Bar-Yaaco~: International Disputes, chapter 3. See also Merrills, International Dispute Settlement, pp. 44-6, and 1. B. Scott, The Hague Court Reports, New York, 1916, p. 403.

''

"

924

I N T E R N A T I O N A L LAW

put into effect47and the report of the international inquiry commission
contributed to a peaceful settlement of the issue." This encouraged anelaboration of the technique by the 1907 Hague ~ o n f e r e n c eand
, ~ ~a waveof support for the procedure.jOThe United States, for instance, concluded
forty-eight bilateral treaties between 1913 and 1940 with provisions ineach one of them for the creation of a permanent inquiry commission.
These agreements were known as the 'Bryan treatied51
However, the use of commissions of inquiry in accordance with theHague Convention of 1907 proved in practice to be extremely rare. The
Red Crusader inquiry of 1962j2 followed an interval of some forty years
since the previous inquiry. This concerned an incident between a British
trawler and a Danish fisheries protection vessel, which subsequently involved a British frigate. Although instituted as a fact-finding exercise, it did
incorporate judicial aspects. A majority of the Commission were lawyers
and the procedures followed a judicial pattern. In addition, aspects of thereport reflected legal findings, such as the declaration that the firing on
the trawler by the Danish vessel in an attempt to stop it escaping arrestfor alleged illegal fishing, 'exceeded legitimate use of armed force:j3 In
the Letelier and Moffitt case, the only decision to date under one of the
Bryan treaties, a US-Chile Commission was established in order to determine the amount of compensation that would be paid by Chile to the
US in respect of an assassination alleged to have been carried out by it in" The Commission of Inquiry consisted of four naval officers of the UK, Russian, Frenchand American fleets, plus a fifth member chosen by the other four (in the event an AustroHungarian). It was required to examine all the circumstances, particularly with regard to
responsibility and blame.
48 It was found that there was no justification for the Russian attack. In the event, both sides
accepted the report and the sum of £65,000 was paid by Russia to the UK, Bar-Yaacov,Internatiotzal Disputes, p. 70.
49 Ibid., chapter 4. Note also the Tavignano inquiry, Scott, Hague Court Reports, New
York, 1916, p. 413; the Tiger inquiry, Bar-Yaacov, International Disputes, p. 156, and theTubantia inquiry, Scott, Hague Court Reports, New York, 1932, p. 135. See also Merrills, International Dispute Settlevzent, pp. 46-50, and Bar-Yaacov, Internatioizal Disputes,
pp. 141-79.
" Bar-Yaacov, International Disputes, chapter 5.
" These were prefigured by the Taft or Knox Treaties of 1911 (which did not come into
operation), ibid., pp. 113-17. The USSR also signed a number of treaties which provide
for joint inquiries with regard to frontier incidents, ibid., pp. 117-19.
" Ibid., pp. 179-95, and Merrills, Interrlational Dispute Settlement, pp. 51-4. See also 35 ILR,
p. 485; Cmnd 776, and E. Lauterpacht, The Contemporary Practice o f the UK in the Field
ofInternationa1 Laiv, London, 1962, vol. I, pp. 50-3.
j3 Lauterpacht, Conternporary Practice, p. 53; Merrills, International Dispute Settlement,
p. 54, and Bar-Yaacov, International Disputes, p. 192.

SETTLEMENT OF DISPUTES

925

Washington DC.54As in the Red Crusader inquiry, the Commission in its
decision in January 1992 made a number of judicial determinations andthe proceedings were conducted less as a fact-finding inquiry and moreas an arbitrati~n.~'
The value of inquiry within specified institutional frameworks, nevertheless, has been evident. Its use has increased within the United Nations
generally" and in the specialised agencies.'' Inquiry is also part of otherprocesses of dispute settlement in the context of general fact-finding s8
But inquiry as a separate mechanism in accordance with the Hague Convention of 1907 has fallen out of favour.j9 In many disputes, of course,
the determination of the relevant circumstances would simply not aid asettlement, whilst its nature as a third-party involvement in a situation
would discourage some states.

The process of conciliation involves a third-party investigation of the basisof the dispute and the submission of a report embodying suggestions fora settlement. As such it involves elements of both inquiry and mediation,
Chile denied liability but agreed to make an ex gratia payment equal to the amountof compensation that would be payable upon a finding of liability, such amount to be
determined by the Commission.
j5 88 ILR, p. 727, and see Merrills, International Dispute Settlement, p. 57.
j6 See the announcement by the UN Secretary-General of a mission in 1988 to Iran and Iraq
to investigate the situation of prisoners of war at the request of those states, S120147. See
also Security Council resolution 384 (1975) concerning East Timor. The General Assembly
adopted a Declaration on Fact-Finding in resolution 46159 (1991).
" See article 26 of the Constitution of the International Labour Organisation. See also theinquiry by the International Civil Aviation Organisation in 1983 into the shooting downof a Korean airliner, Collier and Lowe, Settlettzent, p. 26.
" Note, for example, article 90 of Protocol I to the Geneva Red Cross Conventions 1949 providing for the establishment of an International Fact-Finding Commission and Security
Council resolution 780 (1992) establishing a Commission of Experts to investigate violations of international humanitarian law in the Former Yugoslavia: see M. C. Bassiouni,'The United Nations Commission of Experts Established Pursuant to Security Council
Resolution 780 (1992): 88 AJIL, 1994, p. 784.
j9 Note, however, the Permanent Court of Arbitration's Optional Rules for Fact-Finding
Commissions of Inquiry, effective December 1997, see http:llpca-cpa.orglENGLISH/BD/
inq~1iryenglish.htin.
60 See UN Handbook, pp. 45 ff.; Lauterpacht, Functiorl of Law, pp. 260-9; Merrills, InternationalDisputeSettlement,chapter 4; Collier and Lowe, Settlement, p. 29; Murty, 'Settlement:
pp. 682-3; H. Fox, 'Conciliation' in David Davies Memorial Institute, International Dicputes, p. 93; J. P. Cot, La Conciliation Internationale, Paris, 1968; Bowett, 'Contemporary
Developments', chapter 2; 11. Degan, 'International Conciliation: Its Past and Future:
'4

926

I N T E R N A T I O N A L LAW

and in fact the process of conciliation emerged from treaties providing.~~
reports are only profor permanent inquiry ~ o m m i s s i o n sConciliation
posals and as such do not constitute binding decisions.'j2 They are thus
different from arbitration awards. The period between the world wars was
the heyday for conciliation commissions and many treaties made provision for them as a method for resolving disputes. But the process has notbeen widely employed and certainly has not justified the faith evinced in
it by states between 1920 and 1 9 3 8 . ~ ~Nevertheless, conciliation processes do have a role to play. They are
extremely flexible and by clarifying the facts and discussing proposals
may stimulate negotiations between the parties. The rules dealing withconciliation were elaborated in the 1928 General Act on the Pacific Settlement of International Disputes (revised in 1949). The function of thecommissions was defined to include inquiries and mediation techniques.
Such commissions were to be composed of five persons, one appointed byeach opposing side and the other three to be appointed by agreement fromamongst the citizens of third states. The proceedings were to be concluded
within six months and were not to be held in public. The conciliation procedure was intended to deal with mixed legal-factual situations and tooperate quickly and i n f ~ r m a l l y . ~ ~There have of late been a number of proposals to reactivate the conciliation technique, but how far they will succeed in their aim remains''

Volkerrecht und Reclifsphilosophie, 1980, p. 261; and R. Donner, 'The Procedure ofInternational Conciliation: Some Historical Aspects', 1 Jourr~alof the History of Interniztional Law, 1999, p. 103.
See M~lrty,'Settlement: Merrills notes that by 1940, nearly 200 conciliation treaties had
been concluded, International D i s p ~ t eSettlement, p. 64.
See paragraph 6 of the annex to the Vienna Convention on the Law of Treaties, 1969. The
Vienna Convention for the Protection ofthe Ozone Layer, 1985 provides that conciliation
awards should be considered in good faith, while article 85(7) of the Vienna Convention on the Representation of States in their Relations with International Organisations
provides that any party to the dispute may declare unilaterally that it will abide by the recommendations in the report as far as it is concerned. Note that article 14(3) of the Treaty
Establishing the Organisation of Eastern Caribbean States, 1981 stipulates that member
states undertake to accept the conciliation procedure as compulsory.
But note the Chaco Commission, 1929, the Franco-Siamese Conciliation Commission,
1947 and the Franco-Swiss Commission, 1955: see Merrills, International Dispute Settlement, pp. 65 ff. See also Bar-Yaacov, blternational Disputes, chapter 7.
Article 15(1)ofthe Geneva General Act as amendedprovides that 'The task ofthe Conciliation Commission shall be to elucidate the questions in dispute, to collect with that object
all necessary information by means of enquiry or otherwise, and to endeavour to bring
the parties to an agreement. It may, after the case has been examined, inform the partiesof the terms of settlement which seem suitable to it, and lay down the period within which
they are to make their decision.'

SETTLEMENT OF DISPUTES

927

to be seen.6' A number of multilateral treaties do, however, provide
for conciliation as a means of resolving disputes. The 1948 American
Treaty of Pacific Settlement; 1957 European Convention for the PeacefulSettlement of Disputes; the 1964 Protocol on the Commission of Mediation, Conciliation and Arbitration to the Charter of the Organisation of
African Unity; the 1969 Vienna Convention on the Law of Treaties; theTreaty Establishing the Organisation of Eastern Caribbean States, 1981;
the 1982 Convention on the Law of the Sea and the 1985 Vienna Convention on the Protection of the Ozone Layer, for example, all containprovisions concerning conciliation.
The conciliation procedure was used in the Iceland-Norway dispute
over the continentalshelf delimitation between Iceland and Jan ~ a ~ is-e nland.'j6 The agreement establishing the Conciliation Commission stressedthat the question was the subject of continuing negotiations and that theCommission report would not be binding, both elements characteristic of
the conciliation method. The Commission had also to take into accountIceland's strong economic interests in the area as well as other factors.
The role of the concept of natural prolongation within continental shelfdelimitation was examined as well as the legal status of islands and relevant state practice and court decisions. The solution proposed by theCommission was for a joint development zone, an idea that would havebeen unlikely to come from a judicial body reaching a decision solely on
the basis of the legal rights of the parties. In other words, the flexibilityof the conciliation process seen in the context of continued negotiations
between the parties was d e m ~ n s t r a t e d . ~ ~Such commissions have also been established outside the frameworkof specific treaties, for example by the United Nations. Instances would" See the Regulations on the Procedure of Conciliation adopted by the Institut de Droit

International, Annuaire de l'blstitut de Droit International, 1961, pp. 374 ff. See also the
UN Draft Rules for Conciliation of Disputes Between States adopted by the General Assembly on 28 November 1990 for circulation and comment, 30 ILM, 1991, p. 229, and the
Optional Conciliation Rules adopted by the Permanent Court of Arbitration in 1996: see
Basic Documents: Conventions, Rules, Model Clauses and Guidelines, The Hague, 1998 andhttp://pca-cpa.org/ENGLISHiBDiconciliationenglish.htm Note also the Optional Rules
for Conciliation of Disputes Relating to Natural Resources and the Environment
adopted by the Permanent Court of Arbitration in April 2002, http://pca-cpa.org/PDF/
envconciliation.pdf.
20 ILM, 1981, p. 797; 62 ILR, p. 108. The Commission Report was accepted by the parties,
21 ILM, 1982, p. 1222.
67 See also the 1929 Chaco Conciliation Commission; the 1947 Franco-Siamese Commission;the 1952 Belgian-Danish Commission; the 1954-5 Franco-Swiss Commission and the1958 Franco-Mexican Commission. See UN Handbook, p. 48 and Nguyen Quoc Dinh
et al., Droif International Public, p. 838.

928

I N T E R N A T I O N A L LAW

include the Conciliation Commission for Palestine under General Assembly resolution 194 (111), 1948, and the Conciliation Commission for theCongo under resolution 1474 (ES-IV) of 1960.
International institutions and dispute settlement

Regional organisations and the United o at ions 6y
Article 52(1) of Chapter VIII of the UN Charter provides that nothing in
the Charter precludes the existence of regional arrangements or agencies
for dealing with such matters relating to the maintenance of international
peace and security as are appropriate for regional action, provided thatsuch arrangements or agencies and their activities are consistent with the
purposes and principles ofthe UN." Article 52(2)stipulates that membersof the UN entering into such arrangements or agencies are to make every
effort to settle local disputes peacefully through such regional arrangements or by such regional agencies before referring them to the Security
Council, and that the Security Council encourages the development ofthe
peaceful settlement of local disputes through such regional arrangements.
That having been said, article 52(4) stresses that the application of articles
34 and 35 of the UN Charter relating to the roles of the Security Council
and General Assembly remains ~ n a f f e c t e d The. ~ ~ supremacy of the Security Council is reinforced by article 53(1) which provides that while
the Council may, where appropriate, utilise such regional arrangements
or agencies for enforcement action under its authority, 'no enforcement
action shall be taken under regional arrangements or by regional agencies without the authorisation of the Security Council'. It should also be
noted that by article 24 the Security Council possesses 'primary responsibility for the maintenance of international peace and security', while
68 See below, chapter 22 for peaceful settlement of disputes through the United Nations andchapter 23 generally with regard to international institutions.
Bowett's LMIVof Inter~zational Iizstit~ltiolzs (eds. P. Sands and P. Klein), 5th edn,
London, 2001; ~Merrills,International Dispute Settlement, chapter 11; Murty, 'Settlement',
pp. 725-8; K. Oellers-Frahm andN. MTiihler,Dispz~teSettleinentinP~lblicIntern~~tional
Law,
Ne~vYork, 1984, pp. 92 ff., and Nguyen Quoc Dinh et al., Droit Internatiorlal Public,
pp. 838 ff.
See The Charter of the United Nations (ed. B. Simn~a),
2nd edn, Oxford, 2002, pp. 807 ff.
See also H. Saba, 'Les Accords Regionaux dam la Charte des Nations Unies: 80 HR, 1952
I, p. 635; D. E. Acevedo, 'Disputes under Consideration by the UN Security Council or
Regional Bodies' in The Iriterrlational Court of Justice at a Crossroads (ed. L. F. Damrosch),
Dobbs Ferry, 1987; B. Andemicael, Regionalism and the Lrnited Nations, Dobbs Ferry, 1979;
J. M. Yepes, 'Les Accords Regionaux et le Droit International', 71 HR, 1947 11, p. 235.
See further below, chapter 22, p. 1154.

69 See''SETTLEMENT OF DISPUTES

Y29

article 103 of the Charter emphasises that, in the event of a conflict between the obligations of a UN member under the Charter and obligations
under any other international agreement, the former are to prevail.72In
addition, under article 36, the Security Council may 'at any stage of a dispute. . . recommend appropriate procedures or methods of adju~tment',~"while article 37 provides that should the parties to a dispute fail to settle it,they 'shall refer it to the Security Council'. Furthermore, should the Council itself deem that the continuance of a dispute is likely to endanger the
maintenance of international peace and security, 'it shall decide whether
to take action under article 36 or to recommend such terms of settlement
as it may consider appr~priate'.'~Thus, although reference where appropriate to regional organisations or arrangements should take place, thisdoes not affect the comprehensive role of the UN through the Security
Council or General Assembly in dealing in various ways with disputes between states." While provisions contained in regional instruments may
prevent or restrict resort to mechanisms outside those instrument^,'^ thisdoes not constrain in any way the authority or competence of the UN."In many cases, a matter may be simultaneously before both the UN anda regional organisation and such concurrent jurisdiction does not constitute a jurisdictional problem for the UN.'~In practice and in relation
to the adoption of active measures, the UN is likely to defer to appropriate regional mechanisms while realistic chances exist for a regional~ettlement.~~
7'

See the Nicaragua case, 1CJ Reports, 1984, pp. 392,440; 76 ILR,pp. 104, 151.

73 This refers to disputes the continuance of which is likely to endanger the maintenance ofinternational peace and security, article 33.
7"rticle37(2).
'5 Note that section I, paragraph 6 of the Manila Declaration on the Pacific Settlement ofInternational Disputes adopted in General Assembly resolution 37110, 1982, provides thatstates parties to relevant regional arrangements or agencies shall make every effort tosettle disputes through such mechanisms, but that this 'does not preclude states frombringing any dispute to the attention of the Security Council or of the General Assemblyin accordance with the Charter of the United Nations'.
"'ee
below, p. 1154.
77 See M. Bartos, 'L'ONU et la Co-operation Regionale', 27 RGDIP, 1956, p. 7.
"'heInternational Court noted in the Nicarag~racase, ICJ Reports, 1984, pp. 392, 440; 76
ILR, pp. 104,151, in the context of contended regional discussions, that 'even the existenceof active negotiations in which both parties might be involved should not prevent boththe Security Council and the Court from exercising their separate functioils under theCharter and the Statute of the Court:' 9 In such cases, the Security Council is likely to inscribe the dispute on its agenda and,providing the dispute is not one actually endangering international peace and security,refer the matter to the appropriate regional agency under article 52(2)and ( 3 ) , keeping it
under review on the agenda: see UN Handbook, p. 96.

930

I N T E R N A T I O N A L LAW

Various regional organisations have created machinery for the settlement of disputes.

The African Union (Organisation of African Unity)
The Organisation of African Unity was established in 1963. Article XIX of
its Charter referred to the principle of 'the peaceful settlement of disputes
by negotiation, mediation, conciliation or arbitration' and to assist inachieving this a Commission of Mediation, Conciliation and Arbitration
was established by the Protocol of 21 July 1964.~'The jurisdiction of
the Commission was not, however, compulsory and it was not utilised.
African states were historically unwilling to resort to judicial or arbitral
methods of dispute settlement and in general preferred informal thirdparty involvement through the medium of the OAU. In the AlgeriaMorocco b ~ u n d a r ~ d i s p u tfor
e , example,~~
the OAU established an ad hoc
commission consisting ofthe representatives ofseven African states to seek
Similarly
to achieve a settlement of issues arising out of the 1963 cla~hes.'~in the Somali-Ethiopian conflict,'" commission was set up by the OAU
in an attempt to mediate.85This commission failed to resolve the dispute,although it did reaffirm the principle of the inviolability of frontiers of
In a third case,member states as attained at the time of independen~e.'~" The Organisation of African Unity was established in 1963 and replaced by the African

Act in May 2001. As to the OAU,
Union with the coming into force of the Constituti~~esee generally T. Maluwa, 'The Peaceful Settlement of Disputes among African States,
1963-1983: Some Conceptual Issues and Practical Trends: 38 ICLQ, 1989, p. 299; S. G.
Amoo and I. \I7. Zartman, 'Mediation by Regional Organisations: The Organisation of
African Unity (OAU) in Chad' in Bercovitch and Ru~bin,l\fediatio~l in International Relations, p. 131; B. Boutros Ghali, L'Organisation de l'Unitt.Africaine, Paris, 1968; M. Bedjaoui,'Le Reglement Pacifique des Differends Africains', AFDI, 1972, p. 85; B. Andemicael, Le
R?glerneiltPacifique des Differends Survenante~ztreEtatsAfricains, New York, 1973; E. Jouve,
L'Organiratioil de l'Unite Africaine, Paris, 1984; T. 0.
Elias, Africa and the Developtnent ofInternational Law, Leiden, 1972; 2.Cervenka, The Organisation of African L'nity and its
Charter, London, 1968, and M. N. Shaw, 'Dispute Settlement in Africa', 37 YBWA, 1983,
p. 149. See further on the African Union (Organisation of African Unity), below, chapter
23, I).1183.
Elias, Africa, chapter 9.
See I. Brownlie, African Boundaries, London, 1979, p. 55, and M. N. Shaw, Title to Territory
in Africa: hiternational Legal Issues, Oxford, 1986, pp. 196-7.
" See Keesingi Conternporary Archives, pp. 19939-40, and Shau: 'Dispute Settlement', p. 153.
8"eeBrownlie, African Boundaries, p. 826. See also Shaw, Title to Territory, pp. 197-201.
" Africa Research Bulletin, May 1973, p. 2845 and ibid., Tune 1973, pp. 2883-4 and 2850.
86 Ibid., August 1980, pp. 5763-4. This is the principle of uti possidetis: see further above,
chapter 9, p. 446.

SETTLEMENT OF DISPUTES

93l

the Western Sahara dispute,87an OAU committee was established in July
1978, which sought unsuccessfully to reach a settlement in the conflict,88
while the OAU also established committees to try to mediate in the Chadcivil war, again with little success.89 ~ e s p i t emixed success, it became
fairly established practice that in a dispute involving African states, initialrecourse will be made to OAU mechanisms, primarily ad hoc commissions
or committees.
In an attempt to improve the mechanisms available, the OAU approveda Mechanism for Conflict Prevention, Management and Resolution in
1993 (termed the Cairo ~ e c l a r a t i o n ) . ~It' was intended to anticipate andprevent situations of potential conflict from developing further, to undertake peacemaking and peace-building efforts in the event of conflict andto play a rule in post-conflict situations. The Mechanism comprised two
main bodies, the Central Organ and the Conflict Management Division(later the Conflict Management Centre). The Central Organ, composedof the sixteen states elected annually to serve as members of the Bureau of
the Assembly of Heads of State and Government, constituted the decisionmaking body. However, the Mechanism failed to play a successful role inthe various crises in Africa that decade, such as the Rwanda, Burundi andCongo conflicts, and in 2001 the OAU Assembly decided to incorporate
the Central Organ of the Mechanism as one of the organs of the African
Union (which had come into force in May that year)."
The Protocol Relating to the Establishment of the Peace and Security Council of the African Union was adopted by the First Ordinary~ inSession of the Assembly of the African Union on 9 July 2 0 0 2 . ~This
strument creates the Peace and Security Council as a 'standing decisionmaking organ for the prevention, management and resolution of conflicts',
s7 See Shaw, Title to Territory, pp. 123 ff.

Ibid., and Shaw, 'Dispute Settlement: pp. 160-2.
" Shaw, 'Dispute Settlement: pp. 158-60.

'' AHGIDec. 1 (XXVIII) and see the Report of the OAU Secretary-General, Doc. CM11747(LVIII) and AHGIDec. 3 (XXIX), 1993. See also M. C. Djiena-TITembon,A' Propos duNouveau Mecanisme de I'OUA sur les Conflits', 98 RGDIP, 1994, p. 377, and R. Ranjeva, 'Reflections on the Proposals for the Establishment of a Pan-African Mechanism
for the Prevention and Settlement of Conflicts' in Towards More Effective Supervision by
Ir~ternatiorlalOrgarzisations (eds. N. Blokker and S. Muller), Dordrecht, 1994, vol. I, p. 93.
91 See e.g. C. A. A. Packer and D. Rukare, 'The New African Union and its Constitutive Act',
96 AJIL, 2002, p. 365.
92 This is stated to replace the Cairo Declaration 1993 and to supersede the resolution anddecisions of the OAU relating to the Mechanism for Conflict Prevention, Management
and Resolution in Africa which are in conflict with the Protocol: see article 22(1) and
(2).

932

I N T E R N A T I O N A L LAW

to be supported by the Commission of the Africana Panel ofthea Continental Early Warning
an African Standby~ o r c e and~ ' a Special ~ u n d . A~ 'series of guiding principles are laid down,
including early response to crises, respect for the rule of law and humanrights, respect for the sovereignty and territorial integrity ofmember states
and respect for borders inherited on the achievement of i n d e p e n d e n ~ e . ~ ~The Council is to be composed of fifteen members based on equitableregional representation and r ~ t a t i o n , ~and'its functions include thepromotion of peace, security and stability in Africa; early warningand preventive diplomacy; peacemaking including the use of good
offices, mediation, conciliation and inquiry; peace-support operations
and intervention; peace-building; and humanitarian action.loOArticle 9
provides that the Council 'shall take initiatives and action it deems appropriate' with regard to situations of potential and full-blown conflicts
and shall use its discretion to effect entry, whether through the collective
intervention of the Council itself or through its chairperson and/or thechairperson of the Commission, the Panel of the Wise, and/or in collaboration with the regional rnechani~ms.'~'The Protocol will come into force
upon ratification by a simple majority of member states of the African
Union.
There are in addition a number of subregional organisations in Africa
which are playing an increasing role in conflict resolution. First and foremost is the Economic Community of West African States (ECOWAS)
created in 1975. The constituent instrument was revised in 19931°2andarticle 58 of the revised treaty refers to the responsibility of ECOWAS toprevent and settle regional conflicts, with the ECOWAS Peace Monitoring Group (ECOMOG) as the adopted regional intervention force. The" See further article 10.
94 This is to be conlposed of five highly respected African personalities selected by the chair-person of the Commission after consultation with the member states concerned andshall undertake such action at the request of the Council or chairperson of the Commission or at its own initiative as deemed appropriate for the prevention of conflicts: see
article 11.
" This is to include an observation and monitoring centre to be known as 'the situation
room' located at the Conflict Management Directorate of the African Union, together
with observation and monitoring units of the Regional Mechanisms: see article 12.
96 This is to consist of standby multidisciplinary contingents and shall perform functions
such as observation missions, peace support missions, interventions, preventive deployment, peace-building and humanitarian assistance: see articles 13-15.
Article 2.
9"rticle
4.
Article 5.
loo Article 6. See also the list of powers in article 7.
lo' See further article 16.
lo2 There was a further revision in the Protocol of 2001 adopted at Dakar.

""

SETTLEMENT OF DISPUTES

933

mission of ECOWAS is to promote economic integration and its institutions include the Authority of Heads of State and Government; the CouncilofMinisters; the Community Parliament; the Economic and Social Council; the Community Court of Justice; a secretariat and a co-operation
fund. ECOWAS intervened in the Liberian civil war in 1990 via a CeaseFire Monitoring Group ( E C O M O G ) " has~ ~ been~ concerned with theconflicts in Sierra Leone and ~ u i n e a - ~ i s s a uAn. ' ~ECOWAS~
Mechanism
for Conflict Prevention, Management and Resolution, Peacekeeping and
Security was established in 1998. The Authority consists of the heads ofstate of member states and is the Mechanism's highest decision-making
body with powers to act on all matters concerning conflict prevention,
management and resolution, peace-keeping, security, humanitarian support, peace-building, control of cross-border crime and proliferation ofsmall arms.ln5A nine-person Mediation and Security Council is mandated to take appropriate decisions under the Protocol on behalf of the
Authority and shall in particular decide on all matters relating to peaceand security; decide and implement all policies for conflict prevention,
management and resolution, peace-keeping and security; authorise allforms of intervention and decide particularly on the deployment of political and military missions; approve mandates and terms of reference forsuch missions; review the mandates and terms of reference periodically,on the basis of evolving situations and on the recommendation of the
Executive Secretary, appoint the Special Representative of the Executive
Secretary and the Force C~mrnander."'~The Southern African Development Community (SADC) was established in 1992."' In 1996 it decided to establish an Organ on Politics,
Defence and Security Co-operation and in 2001 it adopted a Protocol
on Politics, Defence and Security CO-operation.'" Under this Protocol,
the objective of the Organ is to promote peace and security in the region
and in particular to 'consider enforcement action in accordance with international law and as a matter of last resort where peaceful means havee.g. Regional Peace-Keeping and Interrlational Enforcenlent: The Liberian Crisis(ed. M. Weller), Cambridge, 1994, and see further below, chapter 22, p. 1157.
lo4 See e.g. Security Council resolutions 1132 (1997) and 1233 (1999).
lo5 Article 6.
lo6 Articles 7-10. See also Security Council resolution 1197 (1998). See h t t p : / / w v - u s a .
cedeao.org/sitecedeao/english/~nember.htm
and http://wcvcv.ecowas.int.
lo' See e.g. B. Chigora, 'The SAD Community', 11 African Journal of Irlterrlational andComparative Law, 2000, p. 522. It evolved out of the Southern African Development
Co-ordination Conference established in 1979.
'08 See http://www.sadc.int/index.php?lang=english&path=legal/protocols/&page=p_politics-defence-and-security-CO-operation.
l o 3 See

934

I N T E R N A T I O N A L LAW

failed'.'09 A number of structures of the Organ are set up,"' including achairperson,lll the troika (the chairperson together with the incoming
and outgoing chairpersons), a ministerial committee,l12 an Inter-State
Politics and Diplomacy ~ o m m i t t e e "and~ an Inter-State Defence and Security Committee.'14 The Organ has jurisdiction to seek to resolve any'significant inter-state conflict'"' or any 'significant intra-state conflict:'16
It may employ a variety of peaceful means, including diplomacy, negotiations, mediation, arbitration and adjudication by an international tribunal and shall establish an early warning system to prevent the outbreakor escalation of a conflict. Where peaceful means fail, the chairperson
acting on the advice of the Ministerial Committee may recommend to
the Summit of the Community that enforcement action be taken, butsuch action may only be taken as a matter of last resort and only with theauthorisation of the UN Security Council."'
The Organisution of American ~ t a t e s " ~Article 23 of the Charter of the OAS, signed at Bogota in 1948 and as
amended by the Protocol of Cartagena de Indias, 1985, provides thatinternational disputes between member states must be submitted to theOrganisation for peaceful settlement, although this is not to be interpreted
as an impairment of the rights and obligations of member states underarticles 34 and 35 of the UN Charter.'19 The 1948 American Treaty of Pacific Settlement (the Pact of Bogota, to be distinguished from the Charter)
Article 2(f).
Article 3.
"' See further article 4. 11' See further article 5.
See further article 6.
See further article 7.
I l 5 1.e. one concerning territorial boundaries or natural resources or in which aggression or
military force has occurred or where peace and security of the region or of another stateparty who is not a party to the conflict is threatened: see article l l ( 2 ) a .
' I 6 1.e. one involving large-scale violence, including genocide and gross violation of humanrights or a military coup or a civil war or a conflict threatening the peace and security of
the region or of another state party, article 1 l(2)b.
"'Article 1 l(3).
' I 8 See Merrills, International Dispute Settleruent, pp. 262 ff., and Bowett's International Institutions, pp. 205 ff. See also E. Jimenez de Arechaga, 'La Co-ordination des Systemesde 1'ONU et de l'organisation des Etats Americains pour le Reglement Pacifique desDifferends et la Securite Collective', 1 1 1 HR, 1964 I, p. 423, and A. C a n ~ a d oTrindade,'Mecanismes de Reglement Pacifiques des Differends en Amerique Centrale: De Contadora a Esquipulas 11', AFDI, 1987, p. 798.
""atethat as originally drafted in the 1948 Charter, article 20 (as it then was) provided that
submission to the OAS procedures had to occur prior to referral to the Security Councilof the UN.
ln9

11'

SETTLEMENT OF DISPUTES

935

sets out the procedures in detail, ranging from good offices, mediationand conciliation to arbitration and judicial settlement by the International Court of Justice. This treaty, however, has not been successful120
and in practice the OAS has utilised the Inter-American Peace Committee
created in 1940 for peaceful resolution of disputes. This was replaced in1970 by the Inter-American Committee on Peaceful Settlement, a subsidiary organ of the Council. Since the late 1950s the Permanent Councilof the OAS, a plenary body at ambassadorial level, has played an increasingly important role.12' One example concerned the frontier incidents
that took place on the border between Costa Rica and Nicaragua in 1985.
The Council set up a fact-finding committee and, after hearing its report,
adopted a resolution calling for talks to take place within the Contadora
negotiating p r 0 c e ~ s .Thel ~ ~Esquipulas I1 agreement of 14 November 1987
established an International Verification and Follow-up Commission to
be composed of the Foreign Ministers of the Contadora and Support
Group States together with the secretaries-general of the UN and 0 ~ s . l ~ ~The Arab ~ e a g u e ' ~ ~The Arab League, established in 1945, aims at increasing co-operation
between the Arab states. Its facilities for peaceful settlement of disputes
amongst its members are not, however, very well developed, and in practice consist primarily of informal conciliation attempts. One notable exception was the creation in 1961 of an Inter-Arab Force to keep the peace
between Iraq and ~ u w a i t . ' ~An' Arab Security Force was sent to Lebanon'" Although note the lVicarag~la Hondilras case, ICJ Reports, 1988, pp. 69, 88; 84 ILR,
Y.

pp. 218, 243, where the Court held that it had jurisdiction by virtue of article XXXI of
the Pact of Bogota.
See articles 82-90 of the OAS Charter.
'22 OAS Permanent Council resolutions CPlRes. 427 (618185); CPldoc. 1592185 and A1401
737-Sl17549. annex IV.
12' The countries involved in the Contadora negotiating process were Colombia, Mexico,
Panama and Venezuela, while the Support Group consisted of Argentina, Brazil, Peru
and Uruguay. See A1431729-S120234.
Iz4 See H. A. Hassouna, The League of Arab States and Regional Disputes, Leiden, 1975;
Bowett, 'Contemporary Development: p. 229; M. Abdennabi, La Ligue des Etats Arabes
et les Corzflits Inter-Arabes (1962-1980), 1985; B. Boutros Ghali, 'The Arab League
1945-1970: 25 Revue Egyptienne de Droit International, 1969, p. 67; and S. Al-Kadhem,'The Role ofthe League ofArab States in Settling Inter-Arab Disputes', 32 RevueEgyptienne
de Droif International, 1976, p. 1. See also http:llwww.al-bab.comlarabldocslleague.htm.
12' Note also the pan-Arab 'peacekeeping force' in the Lebanon between 1976 and 1982: see
Keesing's Contemporary Archives, pp. 28117 ff. See also I. Pogany, The Arab League andPeacekeeping in Lebanon, London, 1987. The Council also appointed committees to deal

"'

936

I N T E R N A T I O N A L LAW

in 1976 to be succeeded by the Arab Deterrent Force between 1976 and1983. The Arab League was not able to play a significant part in either the
Kuwait crisis of 1990-1 or the Iraq crisis of 2002-3.

The European Convention for the Peaceful Settlement of Disputes
adopted by the Council of Europe in 1957 provides that legal disputes(as defined in article 36(2) of the Statute of the International Court ofJustice) are to be sent to the International Court, although conciliation
may be tried before this step is taken.127Other disputes are to go to arbitration, unless the parties have agreed to accept conciliation.
Within the NATO alliance,'28 there exist good offices facilities, andinquiry, mediation, conciliation and arbitration procedures may be instituted. In fact, the Organisation proved of some use, for instance inthe longstanding 'cod war' between Britain and Iceland, two NATOpartners.129
The Organisation on Security and Co-operation in Europe (OSCE)
has gradually been establishing dispute resolution r n e c h a n i ~ m s . 'Under~~
the key documents of this organisation,131 the participating states are toendeavour in good faith to reach a rapid and equitable solution of theirdisputes by using a variety of means. Under the Valletta Report 1991, as
amended by the Stockholm Decision of 1992, any party to a dispute may
request the establishment of a Dispute Settlement Mechanism, which once
established may offer comments or advice with regard to negotiations between the parties in dispute, or any other appropriate dispute settlement
process, and may engage in fact-finding and other conciliation functions.
wit11 the 1963 Algerian-hloroccan and Democratic People's Republic of Yemen-Yemen
Arab Republic boundary disputes, H. A. Hassouna, 'The League of Arab States and theUnited Nations: Relations in the Peaceful Settlement of Disputes: New York, 1979, p. 312.
See also Sirnma, Charter of the United Nations, p. 852.
See L. Caflisch, 'Vers des Mecanismes Pan-Europeennes de RPglement Pacifique desDifferends', 97 Revue Gtntrale de Droit Interrlatiotzal Public, 1993, p. 1.
12' Note that some states have entered reservations to this provision.
See Botvett's lrlternatiorlal Institutions, 17. 191, and Merrills, Internatiorlal Dispute Settlement, p. 260. See also http://~urru.nato.int/.
'29 Merrills, lrlterrlational Dispute Settlement, 17. 266. Such procedures were also proposed
following the Suez crisis in 1956 and with regard to the Cyprus crisis in 1963: see N g ~ ~ y e n
Quoc Dinh et al., Droit International Public, pp. 855-6.
See generally above, chapter 7, p. 346, and below, chapter 23, p. 1179.
13' See the Helsinki Final Act 1975; the Charter of Paris 1990 and the Valletta Report of the
Meeting of Experts on Peaceful Settlement of Disputes 1991.

'"'"

SETTLEMENT OF DISPUTES

937

The Convention on Conciliation and Arbitration was signed in 1992 andcame into force two years later. Under this Convention, a Court of Con' ~ ~been established in Geneva. Conciliation
ciliation and ~ r b i t r a t i o nhas
may be undertaken by a Conciliation Commission constituted for eachdispute and drawn from a list established under the Convention.'" TheCommission will draw up a report containing its proposals for the peaceful settlement of the dispute and the parties will then have a period ofthirty days during which to examine the proposals. If the parties do not
accept the proposed settlement, the report will be forwarded to the OSCE
Council through the Senior Council (formerly the Committee of Senior ~ f f i c i a l s ) .The
' ~ ~Convention also provided for the establishment of
Arbitral Tribunals, similarly constituted for each dispute and drawn froma list.'" Such a tribunal would be set up by express agreement between theparties in dispute1j6or where the state brought to arbitration has agreed
in advance to accept the jurisdiction of the Tribunal.13' The award of the
Tribunal would be final and binding as between the parties.'38
In addition, the OSCE is able to send Missions to various participatingstates, with their consent, as part of its early warning, conflict prevention
and crisis management responsibilities. Such Missions have been sent
to Yugoslavia to promote dialogue between the populations of Kosovo,
Sanjak and Vojvodina and the authorities of the state; to the Former
Yugoslav Republic of Macedonia; to Georgia; Moldova; Tajikistan; Estonia; Ukraine and Chechnya. Additional Missions have operated in Albaniaand ~ o s o v o . Under' ~ ~ the General Framework Agreement for Peace in
Bosnia and Herzegovina, initialled at Dayton on 21 November 1995 andsigned in Paris on 14 December 1995, the OSCE was made responsible
for the supervision of election^,'^' for providing the framework for the"'This consists of the conciliators and arbitrators appointed under articles 3 and 4.
"' See articles 1 and 2. Each state party is to appoint two conciliators, article 3.
Article 25.
Articles 2 and 4. Each state party is to appoint one arbitrator and one alternate.
'j6 Either between two or more states parties to the Convention or between one or morestates parties to the Convention and one or more OSCE participating states, article 26(1).
Article 26.
Article 31. See also UN Handbook, p. 87, and OSCE Handbook 2000, Vienna, p. 37 andsee http://ww.~~ce.~rg/p~blication~/handbook/.
' j 9 See OSCE Handbook 1996, pp. 16 ff., and Annual Report for 2001, http://www.osce.org/
docs/english/misc/anrep01eeactiv.htm#00007.
A series of Sanctions Assistance Missions,operatingunder the guidance ofthe OSCEIEU Sanctions Co-ordinator,was sent torarious
countries in order to assist themin maintaining sanctions imposed by the Security Council
in the Yugoslav crisis, ibid., p. 36.
14' See Annex 3 of the Agreement.
'j4
'j5

"'
'"

938

I N T E R N A T I O N A L LAW

conduct of discussions between the Bosnian parties on confidence andsecurity-building measures and for measures of subregional arms control,141 and for assisting in the creation of a Bosnian Commission on
Human ~ i g h t s . ' ~ ~International organisations and facilities of limited
The various specialised agencie~'~%hich encourage international cooperation in functional spheres have their own procedures for settling
disputes between their members relating to the interpretation of theirconstitutional instruments. Such procedures vary from organisation toorganisation, although the general pattern involves recourse to one of themain organs of the institution upon the failure of negotiations. If this fails
to result in a settlement, the matter may be referred to the International
Court of Justice or to arbitration unless otherwise agreed.'45In such cases,
recourse to the Court is by way of a request for an Advisory Opinion,although by virtue of constitutional provisions, the judgment ofthe Court
would be accepted as binding and not as advisory.146In other cases, theopinions to be given by the International Court or by an arbitral tribunal
are to be non-binding.'47 A number of organisations provide for othermechanisms of inquiry and dispute sett1ement.l4'
Annex 1-B of the Agreement. The subregional arms control involves Yugoslavia, Croatia
and Bosnia.
Annex 6 of the Agreement.
See generally C. A. Colliard, 'Le Reglement des Differends dans les Organisations Intergouvernementales de Caractere Non Politique' in Mtlanges Basdevant, Paris, 1960,
p. 152, and G. Malinverni, Le Riglernent des Diffkrends darrs les Organisations Internationales Econorniques, Leiden, 1974. It should also be noted that several international
treaties expressly provide mechanisms and methods for the peaceful resolution of disputes arising therefrom: see e.g. with regard to the Convention on the Law of the Sea,a b o ~ e chapter,
11, p. 568, and with regard to the Convention on the Law of Treaties,
above, chapter 16, p. 858.
' 4 4 See Murty, 'Settlement', pp. 729-32. See further below, chapter 22, p. 1095.
14"ee article 37 of the International Labour Organisation Constitution; article 14(2) of
the UNESCO Constitution; article 75 of the World Health Organisation Constitution;
article 17 of the Constitution of the Food and Agriculture Organisation; article XVII of
the International Atomic Energy Agency Statute and articles 50 and 82 of the Conventionof the International Telecommunications Union.
'46 See C. F. Amerasinghe, Prirlciples of the Institutional Law of Irltcrrlatiorial Organisations,Cambridge, 1996, pp. 28 ff.
See article 22(1) of the UN Industrial Development Organisation (UNIDO) Constitution and article 65 of the International Maritime Organisation Constitution.
See the 1962 Special Protocol to the UNESCO Convention against Discrimination in
Education which provides for a Conciliation and Good Offices Commission and the
14'

'"

'"
'"

SETTLEMENT OF DISPUTES

939

There are a number of procedures and mechanisms which seek toresolve disputes in particular areas, usually economic and involving mixed
disputes, that is between states and non-state entities. These processes
are becoming of considerable significance and many of them are having
a meaningful impact upon general international law. This section will
briefly survey some of these.
The dispute settlement procedures established under the General
Agreement on Tariffs and Trade'49 commenced with bilateral consultations under article XXII.'~'From this point, article XXIII provided for aparty to refer a dispute for conciliationG' where it was felt that 'any benefit
accruing to it directly or indirectly' under GATT was being 'nullified or
impaired', A Panel, composed of experts chosen by the Director-Generalof GATT, then would seek to ascertain the relevant facts and reach a~ett1ement.l'~
The approach was pragmatic and focused on achieving asettlement between the parties. The report of the Panel would be sent to
the GATT Council, which would usually adopt it by consensus. Where
the disputing parties had not implemented the recommendations withina reasonable time, the complaining party was able to take retaliatory action with the authorisation of the Council. Such instances were in fact
very rare.'" In 1989, a series of improvements was adopted pending theconclusion of the Uruguay Round of negotiations. These improvements
included the provision that the Council would normally accept the report of the Panel within fifteen months of the complaint and provisions
relating to mediation, conciliation and arbitration were added.""1962 Special Protocol to the ILO Convention against Discrimination in Education which
provides for a Conciliation and Good Offices Commission: see Murty, 'Settlement',
pp. 729-30, and Botven's Interrlational Irlstitutioris, chapter 3. See also the World Intellectual Property Organisation Mediation, Arbitration and Expedited Arbitration Rules
1994, 34 ILM, 1995, p. 559
14' See further below, chapter 23, p. 1167.
15' See UN Handbook, pp. 136 ff.; J. H. Jackson, The TVorld Trading System, 2nd edn,
Cambridge, MA, 1997, chapter 4, and T. Flory, 'Les Accords du Tokyo Round du GATTet la Reforme des Procedures de Reglement des Differends dans la Systeme Commercial
Interetatique', 86 RGDIP, 1982, p. 235.
151 Before this stage, a party could seek the good offices of the Director-General of GATT tofacilitate a confidential conciliation: see the 1982 GATT Ministerial Declaration.
152 See in particular the 1979 Understanding on Dispute Settlement.
15' See Henkin et al., International Law Cases and Materials, p. 1414.
154 See E. Canal-Forgues and R. Ostrihansky, 'New Developments in GATT Dispute Settlement Procedures: 24 J o ~ ~ r nofworldal
Trade, 1990, and J.-G. Castel, 'The Uruguay Roundand the Improvements to the GATT Dispute Settlement Rules and Procedures: 38 ICLQ,
1989, p. 834.

940

I N T E R N A T I O N A L LAW

The GATT process was absorbed within the World Trade Organisation, which came into being on 1 January 1995. Annex 2 of the Marrakesh
Agreement Establishing the World Trade Organisation, 1994 is entitled'Understanding on Rules and Procedures Governing the Settlement of~isputes'."%nder the WTO scheme, disputes arising out of the agreements contained in the Final Act of the Uruguay Round are dealt with by
the WTO General Council acting as the Dispute Settlement Body. Where
bilateral consultations have failed, the parties may agree to bring the
dispute to the WTO Director-General, who may offer good offices, conciliation or mediation assistance. Where consultations fail to produce asettlement after sixty days, the complaining state may turn to the Dispute Settlement Body. This Body may establish a three-member panel,
whose report should be produced within six months. Detailed procedures
are laid down in the Understanding. The panel report is adopted by the
Dispute Settlement Body within sixty days, unless there is a consensus
against adoption or one of the parties notifies an intention to appeal on
grounds of law. The standing Appellate Body established by the Dispute
Settlement Body consists of seven experts, three of whom may sit to hearappeals at any one time. Appeal proceedings generally are to last no morethan sixty (or at most ninety) days. Unless there is a consensus against
adoption, the Dispute Settlement Body will accept the Appellate Body report within thirty days. Within thirty days of the adoption of the report,
the parties must agree to comply with the recommendations and if thisdoes not happen within a reasonable period, the party concerned must offer mutually acceptable compensation. If after twenty days, no satisfactorycompensation is agreed, the complaining state may request authorisationfrom the Dispute Settlement Body to suspend concessions or obligations
against the other party and this should be granted within thirty days of theend of the reasonable period. In any event, the Dispute Settlement Body
will monitor the implementation of rulings or recommendation^.'^^'" See Dispute Settlettzent in the IVTO (eds. J. Cameron and K. Campbell), London, 1998;
Collier and Lowe, Settlement, p. 99; Bowen's International Instittltions, 17. 379; A. H.
Qureshi, Internatiotzal Econottzic Law, London, 1999, p. 287; 1. Pauwelyn, 'Enforcement
and Countermeasures in the 11'TO: 94 AJIL, 2000, 17. 335, and J. Cameron and K. R.
Gray, 'Principles of International Law in the WTO Dispute Settlement Body', 50 ICLQ,
2001, p. 248. See also WTO Secretariat, The IYTO Disptltc ScttlemcntProccdures, 2nd edn,
Cambridge, 200 1 and h t t p : l l ~ w . ~ ~ o . o r g / e n g l i s h / t r a t o p ~ e / d i s p ~ ~ ~ e / d i s p u ~ e . h t m .
'j6 Rules of Conduct were adopted in December 1996: see MTT/DSB/RC/l and http://www.
wto.orgienglish/tratop-eidispu-eirc-e.htm.See also the Working Procedures for Appellate Review, WTIABIWPI4 and http://~m~w.wto.org/english/tratop_e/dispu_e/ab_e.htm.
The Doha Ministerial Declaration of November 2001 stated that negotiations on improvements and clarifications of the Dispute Settlement Understanding would take placewith a view to agreement by May 2003.

SETTLEMENT OF DISPUTES

94l

There are two particular points to make. First, there have been a significant number of cases initiated before the Dispute Settlement ~oand, secondly, the establishment of an Appellate Body, composed of trade
law experts, is having an important impact upon the development of international trade law.'j8 AS a reflection of the latter, a number of issuesof general international law interest have been dealt with, ranging fromconsideration of the Vienna Convention on the Law of Treaties and treatv
i n t e r p r e t a t i ~ nto' ~questions~
relating to procedural issues such as burdenof proof.160
A number of regional dispute mechanisms concerning economic questions have been established. The most developed is the European Union,
which has a fully functioning judicial system with the Court of Justice in
Luxembourg with wide-ranging jurisdiction.161 Other relevant, but modest regional economic mechanisms include Mercosur (Argentina, Brazil,
Paraguay and uruguay),16' ~ o m e s a andl ~ ~ECOWAS.'~~
The North American Free Trade Agreement (NAFTA), 1992, linking
the US, Mexico and Canada, also contains dispute settlement provis i o n ~ . ' ~The'
principal mechanisms are contained in Chapters 11, 14,
19 and 20 of the Agreement. Under Chapter
investment disputesdoTrer 200 by mid-2000: see Cameron and Gray, 'WTO Dispute Settlement: p. 250,
and 284 by mid-March 2003, see http:ll~nw.~~to.orglenglishltratop_eidisp~~~eldisp~~~status-e.htm.
15' See e.g. D. M . McRae, 'The Emerging Appellate Turisdiction in International Trade Law'
in Campbell and Cameron, Dispute Settlement, p. 1.
lS9 See e.g. the Standards for Reforirlulated arld Converltional Gnsolirle case, 1996,
WTIDS2IABIR and the briport Prohibition of Certain Shrimp and Shri~ripProducts case,
1998, WTIDS58IABIR. See also D. Palnleter and P. C. Mavroidis, 'TheT.t7T0Legal System:
Sources of Law', 92 AJIL, 1998, p. 398.
160 See e.g. Irnports ofAgric~~ltura1,
Textile and Ind~~strial
Products, 1999, WTIDS90IABIR.
As to which see e.g. S. TITeatherilland P. Beaumont, EULaw, 3rd edn, London, 1999, andL. N. Brown and T. Kennedy, The Court oflustice of the European Communities, 5th edn,
London, 2000.
'62 See the Mercosur Treaty, 1991. The Protocol of Brasilia, 1991 (complemented by Decision
17 1998) establishes a rudimentary dispute settlement system for states parties basedupon
diplomatic negotiations with arbitration as a last resort. Arbitration was not used until
1999 and the first arbitral award was the Siscomex case: see D. Ventura, 'First Arbitration
Award in Mercosur - A Community Law in Evolution?', 14 Leiden Jotrrnal oflrlternationalLaw, 2000, p. 447. See also http:ll~~m~.mercosur.org.uyi.
16' See the Treaty Establishing the Common Market for Eastern and Southern Africa, 1993.
The Economic Community ofJ4Test African States: see the treaty of 1975 and revisions of1993 and 2001 and Protocol 1 o n the Community Court of Justice, 1999.
16' See 32 ILM, 1993, pp. 682 ff. See also Bo~vett's International Institutions, p. 222;
D. S. Huntington, 'Settling Disputes under the North American Free Trade Agreement',l , p. 407, and Collier and Lowe, Settlement,
34 Harvard International Law J o ~ ~ r n a1993,
p. 111. See also http:ll~~~~.nafta-sec-alei~a.org/ei~glishlindex.htm.
166 Articles 1101-14 of the Agreement.

157

'"

'"

942

I N T E R N A T I O N A L LAW

may be raised by individual investors of one state party against another state party and, if not resolved by negotiations, may be submitted to arbitration either under the World Bank's International Centre
for the Settlement of Investment Disputes (ICSID) or the ICSID Additional Facility or the rules of the United Nations Commission for International Trade Law (uNCITRAL).'~'Tribunals established under NAFTA
must apply both the NAFTA Treaty and applicable rules of international
law.16' Questions relating to interpretation of the Treaty must be remitted to the Free Trade ~ o m m i s s i o n , ' ~ ~ w hinterpretationsose
are binding.liO
Chapter 19 provides for bi-national panel reviews of anti-dumping, countervailing duty and injury final determinations. These p anels may also review amendments made by any of the state parties to their anti-dumping
or countervailing duty law.17'
The dispute settlement provisions of Chapter 20 are applicable primarily to inter-state disputes concerning the interpretation or application of
the NAFTA, including disputes relating to the financial services provisions of Chapter 14. Should attempts to resolve the particular dispute by
consultation within certain time limits, and good offices, mediation andconciliation by the Free Trade Commission within certain time limits fail,the parties may request that the Commission establish a five-person Arbitral ~ a n e 1 . A
l ~neutral~
chairperson is chosen within fifteen days by theparties in dispute (or by one of the parties chosen by lot ifthere is no agreement) and within a further fifteen days, two panellists of the nationalityof the opposing party are chosen by each party.li3 The panel may obtain
expert advice and a Scientific Review Board may be created to provide
assistance on technical factual questions raised by the parties. The panel
provides an Initial Report, within ninety days of the appointment of thelast panellist, as to its findings and recommendations. Comments may
then be received from the parties and the panel may reconsider its report.
Within thirty days of the Initial Report, the panel will send its Final Reportto the omm mission."^ The parties must then agree to a settlement of the
dispute in the light of the panel's recommendations within thirty days.17'
16'
16'

17'

See below, p. 943.
See article 1131.
~stablishedunder article 2001 of Chapter 20 and consisting of cabinet-level representation of the states parties with a general remit to supervise implementation of the agreement and to resolve disputes concerning its interpretation and application. The Commission also established and oversees the NAFTA secretariat comprising national sections,article 2002.
171 See articles 1903-5.
17' See articles 2003-8.
See articles 1131 and 1132.
See article 2011.
""ee
articles 2014-17.
17' Article 2018.

SETTLEMENT OF DISPUTES

943

If this does not happen, the complaining party may suspend the application to the party complained against of benefits of equivalent effectuntil such time as they have reached agreement on a resolution of the
dispute.176
The World Bank (i.e. the International Bank for Reconstruction andDevelopment and the International Development Association) established in 1993 an Inspection Panel system providing an independent
forum for private citizens who believe that their interests have been or
may be harmed by a project financed by the World ~ a n k . Upon
' ~ ~ receipt of a request by such private persons, the three-person Panel decides
whether it is within its mandate and, if so, sends it to Bank Management
who prepare a response for the Panel. A preliminary review is undertakenby the Panel that includes an independent assessment of the merits ofBank Management's response. A recommendation is then submitted to
the Board of the Bank as to whether the claims should be investigated. If
the Board approves a recommendation to investigate, the Panel proceedswith the investigation and its findings are then sent to the Board and to
Bank Management. The management must then within six weeks submit its recommendations to the Board on what actions the Bank shouldtake in response to the Panel's findings. The Board will then make a
final decision as to future action based upon the Panel's findings and therecommendations of Bank ~ a n a g e m e n t . " ~The International Centre for Settlement of Investment Disputes wasestablished under the auspices of the World Bank by the Convention on
the Settlement of Investment Disputes Between States and the Nationalsof Other States, 1965 and administers ad hoc arbitration^."^ It constitutes'7%rticle 2019.
See e.g. I. Shihata, The WorlclBaizk Inspection Panel, Oxford, 1994; D. L. Clark, A Citizeiz's
Guide to the World Bank Inspection Panel, 2nd edn, Washington, 1999; 'Conclusions of
the Second Review of the T170rldBank Inspection Panel', 39 ILM, 2000, p. 243, and The
Inspectiorl Panel of the M'orld Bank (eds. G. Alfredsson and R. Ring), The Hague, 2001. See
also A. Gowlland Gualtieri, 'The Environmental Accountability oftheTl7orldBankto NonState Actors', 72 BYIL, 2002,p. 213 and http://wbln0018.worldbank.org/ipnIipn~~eb.nsf~'78 AS of September 2002, twenty-seven requests had been sent to the Panel, of
these nineteen resulted in Board approval of the Panel's recommendations: see
http://wbln0018.worldbank.org/IPN/ipnweb.nsf/(attachmentweb)/S~1mmaryoflleq~1ests/$FILE/Summary+of+Requests.pdf.
17' See C. Schreuer, The ICSID Convention: A Cornrnentary, Cambridge, 2001; A. Broches,'The Convention on the Settlement of Investment Disputes: 3 Columbia Journal ofTransnational Laiv, 1966, p. 263, and A. Broches, 'The Convention on the Settleineilt
of Investment Disputes Between States and Nationals of Other States', 136 HR, 1972,
p. 350; D. O'Keefe, 'The International Centre for the Settlement of Illvestment Disputes',

'77

944

I N T E R N A T I O N A L LAW

a framework within which conciliation and arbitration takes place andprovides an autonomous system free from municipal law in which states
and non-state investors (from member states) may settle disputes. States'~~
to recognise awards made by arparties to the C ~ n v e n t i o n undertake
bitration tribunals acting under the auspices of the Centre as final andbinding in their territories and to enforce them as if they were final judgments of national courts.'" The jurisdiction of the Centre extends to'any legal dispute arising directly out of an investment, between a contracting state. . . and a national of another contracting state, which theparties to the dispute consent in writing to submit to the centre'.18' Accordingly, states must not only become parties to the Convention, butalso agree in writing to the submission of the particular dispute to thesettlement procedure, although this may be achieved in a concessionagreement between the investor and the state concerned. In fact, bilateral investment treaties between states parties to the Convention frequently provide for recourse to arbitration under the auspices of theCentre in the event of an investment dispute.ls3 Further, a number ofmultilateral treaties now provide for the submission to ICSID of disputes
arising.184In 1978, the Centre introduced the ICSID Additional Facility which extends its jurisdiction to include disputes where only one ofthe parties is a contracting state or a national of a contracting state anddisputes not arising directly out of an investment, provided the dispute
relates to a transaction which has 'features that distinguish it from an
ordinary commercial transaction' and further provides for fact-finding
proceedings.
The Convention requires individuals to be nationals of a state otherthan the one complained against and article 25(2) specifically excludes
dual nationals. Nationality is determined according to the rules of the34 YBWA, 1980, p. 286; J. G. Wetter, The I~~terilationalArbitral Process Public andPrivate, Dobbs Ferry, 1979, vol. 11, p. 139; Collier and Lowe, Settletnent, p. 59, andP. Muchlinski, LMultiilational Enterprijes and the Law, Oxford, 1995, pp. 540 ff. See also
http://~mw.worldbank.org/icsid/.
l a O In becoming parties, states may expressly include or exclude certain kinds of disputes:
see article 25(4).
la' Wetter, Arbitral Process, vol. 11, p. 139.
l a 2 Article 25(1) of the Convention.
18' See I. Pogany, 'The Regulation of Foreign Investment in Hungary: 4 ICSID Review Foreign Investment Law Journal, 1989, pp. 3 9 , 51. It is estimated that over 900 suchtreaties exist providing for ICSID arbitration: see http://www.worldbank.org/icsid/
treaties/treaties.htm. See also the case of Asian Agricultural Products 1,. Sri Lanka 30
ILM, 1991, p. 577.
l X 4 See e.g. article 1120 of the NAFTA Treaty, 1992 and Metalclad Corporation r. United
Mexican States 119 ILR, p. 615. See also article 26(4) ofthe European Energy Charter, 1995.

SETTLEMENT OF DISPUTES

945

state of nationality claimed and must exist both at the date on which theparties consented to submit such dispute to conciliation or arbitration
as well as on the date on which the request was registered. The same
principles apply to companies, except that article 25(2)b includes also
juridical persons which had the nationality of the contracting state party
to the dispute on the date on which consent to submission of the disputeoccurred and which 'because of foreign control, the parties agreed shouldbe treated as a national of another contracting state for the purposes ofthis Convention'. This may be achieved in a bilateral investment treaty
and may be implied in the circumstance^.'^^
Disputes are referred to conciliation commissions or arbitral tribunals
constituted under ICSID's auspices. Conciliation has been rare, but arbitration more frequent.186The Secretary-General maybe asked to establish
an Arbitral Tribunal by either party to a dispute that falls within the jurisdiction of ICSID. The parties nominate an uneven number of arbitratorswith the chosen arbitrators deciding upon a neutral president of the tribunal. The applicable law is as agreed by the parties and otherwise thelaw of the contracting state party to the dispute together with such rulesof international law as may be applicable.18' Awards are binding and not
subject to any appeal or other remedy other than those provided within
the Convention system itself.ls8Each contracting state is obliged to recognise ICSID awards and enforce pecuniary obligations imposed as if they
were final judgments in its own courts.1s9A number of significant awards
have now been made.lgO
Another procedure of growing importance is the Court of Arbitrationof the International Chamber of Commerce.19' A number of agreements
See e.g. Amco v. Indonesia 1 ICSID Reports, p. 377.
seventy cases have been currently concluded with over forty pending: see
http://wwcv.wor1dbank.org/icsid/cases/cases.htn1.
IS' See Chapter IV of the Convention.
lSS Article 53.
Article 54. However, this is subject to domestic legislation as regards sovereign immunity:
see article 55.
lY0 See P. Lalive, 'The First "World Bank" Arbitration (Holiday Inns v. Morocco) - Some
Legal Problems', 51 BYIL, 1980, p. 123. See also AGIP Spa v. Governnzent of the Popular
Republic of the Congo 67 ILR, p. 318 and Berlvenuti and Borlfant v. Governmerlt of the
Popular Republic o f the Congo, ibid., p. 345, dealing with questions of state responsibility
and damages, and LETCO v. Government o f Liberia 89 ILR, p. 313 and Tradex Hellas SA
v. Albania, 1999, ARB19412 concerning expropriation. See also Metalclad Corporation v.
United Mexican States 119 ILR, p. 615, concerning state responsibility, expropriation andcompensation.
l Y 1 See Wetter, Arbitral Proces.c, vol. 11, p. 145. See also http://www.iccwbo.orgiindex_
court.asp.
Ix5

ls6 Over

'''

946

I N T E R N A T I O N A L LAW

provide for the settlement of disputes by arbitration under the Rules of theInternational Chamber of Commerce and several cases have been heard.192
Also to be noted is the set of rules adopted by the UN Commission on
International Trade Law (UNCITRAL) in 1966.19"
An institution which constitutes a mixed model, combining elements
of inter-state arbitration with elements of state-individual arbitrationis the Iran-United States Claims Tribunal which was established in The
Hague by the Claims Settlement Declaration in 1 9 8 1 . ' ~The
~ Tribunal isan international arbitral body set up to adjudicate claims of US nationals
against Iran and of Iranian nationals against the United States arising outof alleged violations of property rights as a result of the circumstances
surrounding the hostage crisis. The Tribunal also has jurisdiction to hearcertain official claims between the US and Iran arising out of contractual arrangements for the purchase and sale of goods and services, anddisputes relating to the interpretation and implementation of the Claims
Settlement Agreement itself. As another indication of its mixed character,article V of the Claims Settlement Declaration provides that the Tribunal
shall apply 'such choice of law rules and principles of commercial andinternational law as the Tribunal determines to be applicable, taking into
account relevant usages of the trade, contract provisions and changed
circumstances'.
In order to ensure payment of awards to US nationals, a Security
Account was established with one billion dollars capital from Iranianassets frozen in the US as a result of the hostages crisis. Once the sum
falls below $500 million, Iran is under an obligation to replenish the
SeeDalrnia Cernent v. NationalBankofPakistan67ILR,p.
611 andthe T4@stlandHelicopterscase, 80 ILR, p.595.
19'
See e.g. I . Dore, The UNCITRAL Framework for Arbitration iil Coiltemporary Perspective,
London, 1993,and http://wm~.uncitral.org/en-indexhtm.
194 See 1 Iran-US C T R , pp. 3-56; 20 ILI\/I, 1981, pp. 223 f f . See also The Jurisprudenceof the Iran-United States Claims Tribunal ( e d . G. H . Aldrich), Oxford, 1996; Stewart
and Sherman, 'Development at the Iran-United States Claims Tribunal: 1981-1983: 24
Va. JIL, 1983, p. 1; D.Lloyd Jones, ' T h e Iran-United States Claims Tribunal: Private
Rights and State Responsibility', 24 Va. JIL, 1984,17. 259; The Iran-US Clairns Tribunal
1951-83 (ed. R. Lillich), Charlottesville, 1984; The Iran-United States Clairns Tribunal:
Its Contribution to the Law of State Responsibility (eds. R. Lillich and D. B. Magraw),
New York, 1998;S. J .Toope, Mixed International Arbitration, Cambridge 1990,chapter 9;
D.D. Caron, ' T h e Nature o f the Iran-United States Claims Tribunal and the Evolving
Structure o f International Dispute Resolution', 84 ATIL, 1990,p. 104;A . Avanessian, IranUnited States Claims Tribunal in Action, T h e Hague, 1993;R. Khan, The Iran-United States
Claims Tribt~nal,1990;\V, Mapp, The Imn-United States Claims Tribunal: The First Ten
Years 1981-1991, Manchester, 1993 and the Iran-United States Claims Trib~lnalReports,
1981 t o date. See also http://~\w,iusct.org/index-english.htm1.

19'

SETTLEMENT OF DISPUTES

947~ c c 0 u n t . Underl ~ ~ the terms of the Agreement, all claims had to be filed
by 19 January 1 9 8 2 . ' ~The
~ Tribunal has nine judges, three each chosen
by Iran and the US and three by the remaining six. It sits in three chambers of three persons each and in important cases in plenary session. It
operates under UNCITRAL Rules, save as modified by the parties or the
Tribunal.19' Awards are final and binding and enforceable in any foreign
court in accordance with domestic law.198
A variety of important issues have been addressed by the Tribunal,
including the treatment of dual nationality in claims'" a i d in particularissues relating to e x p r ~ p r i a t i o n . ~Although~'claims ofunder $250,000 are
to be represented by the government of the national concerned, claims
in excess of this are presented by the individual claimants themselves,
while the agents of the two states are present during the hearing withthe right of audience.201Nevertheless, the Tribunal has emphasised on
several occasions that the claim remains that of the individual and is
not that of the state, as would be normal in classical state responsibility
situations.202
Whether this model will be used in other similar situations is an open
question, particularly since the trend in the post-war era has tended towards the lump-sum settlement of such disputes.203But the value of the
Tribunal in general terms in resolving the large number of claims in question and in addressing significant issues of international law cannot bedenied.
The establishment of the UN Compensation Commission constitutes
an interesting and significant devel~pment.'~"t was created by Security
By early 1989, this had taken place on t~venty-sixoccasions: see 83 AJIL, 1989, p. 915.
'9%pproximatelp 1,000 claims for amounts of $250,000 or more, and 2,800 claims foramounts of less than $250,000 were filed within the time limit, ~vllichdoes not apply todisputes between the two Governments concerning the interpretation of the Algiers Declarations. By the end of 2002, there had been 599 awards and 82 interim and interlocutory
awards filed and 130 decisions filed: see Communiqui. of 10 January 2003.
19' Article I11 of the Claims Settlement Declaration.
19' Article IV of the Claims Settlement Declaration.
199 See above, chapter 14, p. 727.
See above, chapter 14, p. 737.
'01 See H. Fox, 'States and the Undertaking to Arbitrate: 37 ICLQ, 1988, pp. 1, 21.
'02 See State Party Resporzsibility for Awards Rendered Againtt Its Nationals, Case A121, 14
Iran-US CTR, pp. 324, 330.
See above, chapter 14, p. 749.
204 See e.g. Collier and Lowe, Settlement, p. 41; The United Nations Compensation Commitsion: A Handbook (eds. M . Frigessi di Ratalma and T. Treves), The Hague, 1999;
A. Kolliopoulos, La Commission d'lndemnisation des Nations Unies et le Droit de la ResponsabilitC Internationale, Paris, 2001; A. Grattiili, 'The UN Coinpeilsation commission:
19'

"'

948

I N T E R N A T I O N A L LAW

Council resolution 692 (1991) to process claims for compensation for'any direct loss, damage, including environmental damage and the depletion of natural resources, or injury to foreign Governments, nationals
and corporations, as a result of Iraq's unlawful invasion and occupationof ~ u w a i t ' . ~It' ~constitutes a subsidiary organ of the Security Council
and comprises a Governing Council (being the fifteen members at any
given time of the Security Council), a secretariat and Commissioners appointed to review and resolve claims.206In resolution 705 (1991), theSecurity Council, acting under Chapter VII, decided that compensation
to be paid by Iraq should not exceed 30 per cent of the annual value of theexports of petroleum and petroleum products from ~ r a ~In. resolution~ ' ~706 (1991)) the Council authorised states to import a certain amountof Iraqi petroleum and petroleum products in order to pay for essential food and humanitarian purchases by Iraq and provide payments for
the UN Compensation Commission via the Compensation ~ u n d . Iraq~'~
at first refused to c o - ~ p e r a t e , ~but
' ~ in 1996, the 'oil for food' scheme
put forward in resolution 986 (1995) began to function. This resolution
provided also that 30 per cent of the proceeds of such oil sales were to
be allocated to the Compensation Fund. This percentage was reduced to
25 per cent in resolution 1330 (2000). The Compensation Commission
has received an overwhelming number of claims. Some 2.6 million claims
from around 100 states were received."' The claims were divided into
Old Rules, New Procedures on War Reparations: 13 EJIL, 2002, p. 161; D. Caron and
B. Morris, 'The United Nations Compensation Commission: Practical Justice, Not Retribution: 13 EJIL, 2002, p. 183, and M. B. Fox, 'Imposing Liability for Losses from Aggressip-e War: An Economic Analysis of the UN Compensation Commission', 13 EJIL, 2002,
p. 201.
'05 Paragraph 16 of resolution 687 (1991) established that 'Iraq.. .is liable under international law for any direct loss, damage, including environmental damage and the depletionof natural resources, or injury to foreign Governments, nationals and corporations, asa result of Iraq's unlawful invasion and occupation of Kuwait' and paragraph 18 of theresolution established a fund to pay compensation for such claims together with a Commission to administer it.
'06 See Report of the Secretary-General of 2 May 1991, S122559.
'07 See also Report of the Secretary-General, Si22661, May 1991.
'08 See also the Report of the Secretary-General, Sl23006, 1991 and Security Council resolution 712 (1991).
'09 In resolution 778 (1992) the Council called upon states which held frozen assets representing the proceeds of sales of Iraqi petroleum to transfer these to a special escrowaccount, from which 30 per cent would be transferred to the Compensation Fund.
* l o See 35 ILM, 1996, p. 942, and Collier and Lowe, Settlement, p. 43 (the claims included those from some 1 million Egyptian workers). See also http://www.unog.ch/uncc/theclaims.htm. The claims amounted to over $300 billion.

SETTLEMENT OF DISPUTES

949

six categories.211The deadline of 1 January 1995 was set for the filing of
category A to D claims; 1 January 1996 for the filing of category E andF claims and 1 February 1997 for category F environmental claims. Provisional Rules were adopted by the Commission in 1 9 9 2 . Claims~ ~ ~ aresubject to a preliminary assessment by the secretariat and then sent to panels of commissioners sitting in private. Recommendations are then sent
to the Governing Council for decision froin which there is no appeal. The
first compensation awards were made in spring 1 9 9 5 . ~By' ~ March 2003,
2,597,527 claims had been resolved and $16,708,302,236 compensation
The Commission constitutes an interesting hybrid between a factfinding political organ and a quasi-judicial r n e c h a n i ~ r n . It
~ ' ~has been
noted that panels are required, in the absence of specific guidance by the
Security Council or the Governing Council, to apply international law.216
It has had to deal with a remarkable number of claims with great success
Category 'A' claims cover claims of individuals arising from their departure from Iraq
or Kuwait between the date of Iraq's invasion of Kuwait on 2 August 1990 and the dateof the ceasefire, 2 March 1991, with compensation for successful claims being set by theGoverning Council at the fixed suin of US $2,500 for individual claiinants and US $5,000
for families. Category 'B' claims cover individual claims for serious personal injury or
death of spouse, children or parents, with coinpensation set at US $2,500 for individual
claimants and up to US $10,000 for families. Category 'C' claims cover individual claims
for damages up to $100,000. Category 'D' claiins cover individual claiins for damages
above $100,000. Category 'E' claims cover claims of corporations, other private legal entities and public sector enterprises. Category 'F' claims cover claims made by governments
and international organisations for various losses. See e.g. Decision 1, S122885, annex 11,
varas. 14-16 and S123765. annex. In Decision 11. it was decided that members of theAllied Coalition Forces were not eligible for compensation unless in accordance with the
adopted criteria, the claimants were prisoners-of-war and the loss or injury arose from
mistreatment in violation of international humanitarian law, S124363, annex 11, ibid. See
also AlAC.261199412, reproduced in 34 ILM, 1995, p. 307.
"2 See SlAC.2611992110 and 31 ILM, 1992, p. 1053.
" ~ l ~ C . 2 6 1 1 9 9 5 1 2 - 5See. also 35 ILM, 1996, p. 956. For examples of claims, see e.g. 109
ILR, p. 1 and the Egyptian M'orkers' Clainis 117 ILR, p. 195.
"4 See l~ttp:l/~~~~.unog.chluncclstat~~s.htm.
'I5 See the Report of the UN Secretary-General of 2 May 1991, S122559. This Report inparticular emphasised that the Compensation Commission was neither a Court nor an
Arbitral Tribunal, but 'a political organ that performs an essentially fact-finding functionof examining the claims, verifying their validity, evaluating losses, assessing payments andresolving disputed claims: It was recognised, however, that 'some elements of due process
should be built into the procedure: ibid., para. 20. See also the Guidelines adopted by
the Governing Council on 2 August 1991, S122885. Both documents are reproduced in
30 ILM, 1991, pp. 1703 ff. Note that Collier and Lowe refer to the UNCC as prominent
amongst 'the most notable recent innovations: Settlement, p. 41.
'I6 See article 31 of the Rules and the Egyptian Workers' Claims 117 ILR, pp. 195, 247.
'I1

950

I N T E R N A T I O N A L LAW

and has proceeded upon an expedited basis by relying upon computerised
handling of smaller claims and without a judicial hearing stage.217
Suggestions for further reading
J. Collier and V. Lowe, The Settlement of Disputes in International Law, Cambridge,
1999
J. G. Merrills, International Disptlte Settlement, 3rd edn, Cambridge, 1998
United Nations, Handbook on the Peaceful Settlement of Disputes Between States,
New York, 1992

'I7

See Collier and Lowe, Settletrlent, p. 43.

Inter-state courts and tribunals

As has been seen, there is a considerable variety of means, mechanisms
and institutions established to resolve disputes in the field of internationallaw. However, a special place is accorded to the creation ofjudicial bodies.
Such courts and tribunals may be purely inter-state or permit individuals
to appear as applicants or respondents.' This chapter will be concernedwith the former. In resolving disputes, a variety of techniques is likely to
be used and references to judicial bodies should be seen as part of a larger
process of peaceful settlement. As Jennings has written, 'the adjudicative
process can serve, not only to resolve classical legal disputes, but it canalso serve as an important tool of preventive diplomacy in more complex

situation^'.^In determining whether a body established by states to settle a dispute isof a judicial, administrative or political nature, the Tribunal in the Lagunadel Desierto case emphasised that 'the practice of international law is to' As to courts and tribunals before which individuals may appear, see above, chapter 5, p. 234'

wit11 regard to criminal responsibility; above, chapter 7, p. 321, with regard to the regional
human rights courts and above, chapter 18, p. 938, with regard to bodies concerning
economic issues.
R. Y. Jennings, 'Presentation' in Increasing the Effectiveiless of the lilterilational Court ofJustice (eds. C. Peck and R. S. Lee), The Hague, 1997, p. 79.
See e.g. The International Arbitral Process Public and Private (ed. J.G. Wetter), 5 vols., 1979;
L. Simpson and H. Fox, International Arbitration, London, 1959; L. Caflisch, 'L'Avenir de
I'Arbitrage Interetatique: AFDI, 1979, p. 9; B. S. Murty, 'Settlement of Disputes' in Marltralof Public Ir~ternationalLaw (ed. M . Sarensen), London, 1968, p. 673. See also Nguyen
Quoc Dinh, P. Daillier and A. Pellet, Droit Ii~teri~atiorial
Public, 7th edn, Paris, 2002, p. 866;
K. Oellers-Frahm and A. Zimmermann, Dispt~teSettleir~entin Public International Law,
Berlin, 2001; C . P. Economides, 'L'Obligation de Reglement Pacifique des Differends Internationaux' in Mklanges Boutros-Ghali, Brussels, 1999, p. 405; J. G. Merrills, International Dispute Settlement, Cambridge, 3rd edn, 1998, chapter 5; S. Schwebel, International
Arbitration: Three Salient Problems, Cambridge, 1987; A. M. Stuyt, Survey of International

952

I N T E R N A T I O N A L LAW

look at the nature of the procedure followed by those states before thebody in q ~ e s t i o n ' . ~The procedure of arbitration grew to some extent out of the processesof diplomatic settlement and represented an advance towards a developed
international legal system. In its modern form, it emerged with the Jay
Treaty of 1794 between Britain and America, which provided for theestablishment of mixed commissions to solve legal disputes between the

par tie^.^
The procedure was successfullyused in the Alabama claims arbitration 6of 1872 between the two countries, which resulted in the UK having to
pay compensation for the damage caused by a Confederate warship built
in the UK. This success stimulated further arbitrations, for example theBehring Sea' and British Guiana and Venezuela ~oundary%rbitrationsat
the close of the nineteenth centurye9
The 1899 Hague Convention for the Pacific Settlement of Disputes included a number of provisions on international arbitration, the object ofwhich was deemed to be under article 15, 'the settlement of differences
between states by judges of their own choice and on the basis of respect
for law: This became the accepted definition of arbitration in international law. It was repeated in article 37 of the 1907 Hague Conventions
and adopted by the Permanent Court of International Justice in the caseconcerning the Interpretation of Article 3, paragraph 2, of the Treaty of~ a u s a n n ande ~ ~by the International Court."
Arbitration$ (1794-1984), Dordrecht, 1990; V. Coussirat-Coustere and P. M. Eisemann,
Repertory of International Arbitral Jurisprildence, Dordrecht, 4 vola., 1989-91; C. Grayand B. Kingsbury, 'Developments in Dispute Settlement: International Arbitration since1945; 63 UYIL, 1992, p. 97; L. Sohn, 'International Arbitration Today: 108 HK, 1976, p.
1; International Arbitration (ed. F. Soons), Dordrecht, 1990, and H. Fox, 'States and theUndertaking to Arbitrate', 37 ICLQ, 1988, p. 1.
113 ILR, pp. 1,42.

' See Simpson and Fox, International Arbit~.ation,pp. 1-4, and R. C. Morris, lnternrttional
Arbitration and Procedtlre, New Haven, 1911. Note also the Treaty of Ghent, 1814, which
incorporated the concept of a neutral element within the commission, ibid. See also G.
Schwarzenberger, 'Present-Day Relevance of the Jay Treaty Arbitrations: 53 Notre Dame
Lawyer, 1978, p. 715.
J. B. Moore, International Arbitrations, Washington, DC, 1898, vol. I, p. 495.
Ibid., p. 755.
92 BFSP, p. 970.
See also 'Projet de Rgglement pour la Prockdure Arbitrale Internationale', Annuaire de
1'Institut de Droit Iilterilational, 1877, p. 126.
l o PCIJ, Series B, No. 12, p. 26.
l 1 See Qatar v. Bahrain, ICJ Reports, 2001, para. 113. See also the Dubui/Shurjuh Border
Arbitration 91 ILR, pp. 543, 574 and 575.

INTER- STATE COURTS AND TRIBUNALS

953

International arbitration was held to be the most effective and equitablemanner of dispute settlement, where diplomacy had failed. An agreement
to arbitrate under article 18 implied the legal obligation to accept theterms of the award. In addition, a Permanent Court of Arbitration wasestablished.I2 It is not really a court since it is not composed of a fixedbody of judges. It consists of a panel of persons, nominated by the contracting statesI3 (each one nominating a maximum of four), comprisingindividuals 'of known competency in questions of international law, of
the highest moral reputation and disposed to accept the duties of an arbitrator'.14 Where contracting states wish to go to arbitration, they areentitled to choose the members of the tribunal from the panel. Thus, it isin essence machinery facilitating the establishment of arbitral tribunals.
The PCA also consists of an International Bureau, which acts as the registry of the Court and keeps its records, and a Permanent Administrative
Council, exercising administrative control over the Bureau. Administrative support was provided in this context by the Bureau in the Heathrow
Airport User Charges arbitration." The PCA has been used in a variety ofcases from an early date.16
Between 1900 and 1932 some twenty disputes went through the PCA
procedure, but from that point the numbers began to fall drastically,
although more recently the PCA has started to play an increasingly important role.17 It has served as the registry in, for example, the two phasesof the Eritrea/Yemen arbitration1' and for the Eritrea/Ethiopia Boundary

See Murty, 'Settlement', p. 685; M. Hudson, The Permanent Court of International Justice
1920-1942, New York, 1943, p. 11; The Permanent Court of Arbitration: International
Arbitration and Dispute Settlement (eds. P. Hamilton, H. C. liequena, L. van Scheltinga
The
and B. Shifman), The Hague, 1999; J. Allain, A Century ofInternationa1Adj~~dication:
Rule of Lulv and its Limits, The Hague, 2000, chapter 1, and J. Jonkman, 'The Role of thePermanent Court ofArbitration in International Dispute Resolution', 279 HR, 1999, p. 9.
See also http://wwcv.pca-cpa.org/.
There are currently ninety-seven.
l 4 Article 44 of the Convention as revised in 1907.
l5 See 88 AJIL, 1994, p. 739, note 4.
l6 See e.g. the UK-France Agreement of 1903, providing for referral of differences of a legal
nature to the Permanent Court of Arbitration, so long as the 'vital interests' of the parties
were not involved, Cd 1837.
l7 See generally H. Von Mangoldt, 'Arbitration and Conciliation' in Wetter, Arbitrnl Process,vol. V, py. 243 ff., and D. Johnson, 'International Arbitration Back in Favour?',34 YBM'A,
1980, p. 305.
l8 See 114 ILR, p. 1 (Phase One: Territorial Sovereignty) and 119 ILR, p. 417 (Phase TWO:
Maritime Delimitation).
l'

954

I N T E R N A T I O N A L LAW

omm mission'^ and Claims omm mission^^ and in the Larsen v. Hawaiian
Kingdom arbitration2' It is currently involved in the provision of facilities in cases such as the iMox arbitration between the UK and Ireland andSaluka Investments v. Czech ~ e p u h l i cThe
. ~ ~ PCA has also adopted, forexample, Optional Rules for Arbitrating Disputes between Two
Optional Rules for Arbitrating Disputes between Two Parties of Which
Only One is a State,24Optional Rules of Arbitration Involving International Organisations and state^,^' and Optional Rules for Arbitration of
Disputes Relating to Natural Resources and/or the Environment in 2 0 0 1 . ~ ~The International Law Commission itself formulated a set of Model Rules
on Arbitral Procedure, which was adopted by the General Assembly in
1958.~~
Arbitration tribunals may be composed in different ways.28There may
be a single arbitrator or a collegiate body. In the latter case, each party
will appoint an equal number of arbitrators with the chairman or umpire
being appointed by either the parties or the arbitrators already nominated.
In many cases, a head of state will be suggested as a single arbitrator andhe will then nominate an expert or experts in the field of internationallaw or other relevant disciplines to act for him.29Under the PCA system,
and in the absence of agreement to the contrary, each party selects two
arbitrators from the panel, only one of whom may be a national of thestate. These arbitrators then choose an umpire, but if they fail to do so,
this task will be left to a third party, nominated by agreement. If this also
l9 Decision of 13 April 2002, see http://pca-cpa.org/PDF/EEBC/EEBC0/020-9/o20Text9/020of%20Decision.htm.

" See S120011608. " See 119 ILR, p. 566.
" See http://pca-cpa.org/ENGLISH/l<PC/.
" In 1992: see 32 ILM, 1993, p, 572. These are based upon the UNCITRAL (United Nations
Comlnission on International Trade La~v)Arbitration Rules, adopted by the UN General
Assembly on 15 December 1976 in resolution 31/98.
24 With effect from 1993: see http://pca-cpa.org/ENGLISHinDilstateeng.htm.
With effect fro1111996: see http://pca-cpa.org/ENGLISH/BD/2igoenglish.htm.
" See http://wwcv.pca-cpa.org/ENGLISH/EDR/ENRrules.htm.
" Resolution 1262 (XI). These are, however, merely optional. See also Report of the ILC,
1958, AI3859. Note also the 1928 General Act, the 1929 General Treaty of Inter-American
Arbitration and the 1949 Revised General Act. See also Yearbook of the ILC, 1953, vol. 11,
p. 208.
See e.g. Merrills, Interrzatioizal Dispute Settlement, pp. 92 ff. It is, of course, an issue for theparties to decide.
'".g.
the Argeiztina-Chile case, 38 ILR, p. 10 and the Beagle Chailnel case, HMSO, 1977; 52
ILR, p. 93. Note also the Interpretation ofPeczce Treaties case, ICJ Reports, 1950, p. 221; 17
ILR, p. 318.

"

INTER- STATE COURTS AND TRIBUNALS

955

fails to produce a result, a complicated process then ensues culminatingin the drawing of lots.
States are not obliged to submit a dispute to the procedure of arbitration, in the absence of their consent." This consent may be expressed inarbitration treaties, in which the contracting states agree to submit certain
kinds of disputes that may arise between them to arbitration, or in specificprovisions of general treaties, which provide for disputes with regard to
the treaty itself to be submitted to a r b i t r a t i ~ n , ~although'
the numberof treaties dealing primarily with the peaceful settlement of disputes has
declined since 1945.~'Consent to the reference of a dispute to arbitration
with regard to matters that have already arisen is usually expressed bymeans of a compromis, or special agreement, and the terms in which it
is couched are of extreme importance. This is because the jurisdiction of
the tribunal is defined in relation to the provisions of the treaty or compromis, whichever happens to be the relevant document in the particularcase. However, in general, the tribunal may determine its competence
in interpreting the compromis and other documents concerned in thecase.33
The law to be applied in arbitration proceedings is international law,34
but the parties may agree upon certain principles to be taken into accountby the tribunal and specify this in the compromis. In this case, the tribunal
must apply the rules specified. For example, in the British Guiana and
Venezuela Boundary d i ~ p u t e , ~it'was stated that occupation for fifty years
See e.g. the Eastern Carelia case, PCIJ, Series B, No. 5, 1923, p. 27; 2 AD, p. 394 and the
Ambatielos case, ICJ Reports, 1953, p. 19; 20 ILR, p. 547.
See Arbitration and Security: Tlie Systematic Survey of tlie Arbitmtion Conventions andTreaties of Mutual Security Deposited with the League of Nations, Geneva, 1927, and Systematic Survey of Treaties for the Pacific Settlement of International Disputes 1928-1948,
New York, 1949.
"'ee
L. Sohn, 'Report on the Changing Role ofArbitration in the Settlement of International
Disputes', International Law Association, 1966, pp. 325, 334.
" In the absence of agreement to the contrary. See e.g, the Nottebohnz case, ICJ Reports,
1953, pp. 111,119; 20 ILR, pp. 567,572. See also article 48 ofthe Hague Convention, 1899,
and article 73 of the Hague Convention, 1907.
34 See e.g. the Aror~vegianShipotvners' Clainlscase, 1 R I M , 1921, p. 309 and the Dubui/Sharjah
case, 91 ILR, pp. 543, 585-8. Note that article 28 of the 1928 General Act for the PacificSettlement of International Disputes, as revised in 1949, provides that where nothing islaid down in the arbitration agreement as to the law applicable to the nlerits of the case, thetribunal should apply the substantive rules as laid down in article 38 of the Statute of theInterilatioilal Court of Justice (i.e. international treaties, custom and general principles oflaw). See further above, chapter 3, p. 66.
92 BFSP, p. 970.
'O

"

956

I N T E R N A T I O N A L LAW

should be accepted as constituting a prescriptive title to territory. And
in the Trail Smelter case,36the law to be applied was declared to be US
law and practice with regard to such questions as well as international
law.37
Agreements sometimes specify that the decisions should be reached inaccordance with 'law and equity' and this means that the general principles of justice common to legal systems should be taken into account aswell as the provisions of international law. Such general principles may
also be considered where there are no specific rules covering the situation under d i s c u ~ s i o nThe
. ~ ~ rules of procedure of the tribunal are often
specified in the coinpronzis and decided by the parties by agreement as
the process commences. Hague Convention I of 1899 as revised in 1907
contains agreed procedure principles, which would apply in the absenceof express stipulation. It is characteristic of arbitration that the tribunal
is competent to determine its own jurisdiction and therefore interpretthe relevant instruments determining that j u r i ~ d i c t i o n .Once~ ~ an arbitral award has been made, it is final and binding upon the parties,40 but
in certain circumstances the award itself may be regarded as a
There is disagreement amongst lawyers as to the grounds on which sucha decision may be taken. It is, however, fairly generally accepted that

" Note that in interilatioilal coinmercial arbitrations, the reference often lilcorporates mu-

nicipal law: see e.g. the BP case, 53 ILR, p. 297, where the basic reference was to 'theprinciples of the Law of Libya common to the principles of international law: See also the\vide reference to the Iran-United States Claims Tribunal to decide all cases 'on the basisof respect for law, applying such choice of law r d e s and principles of commercial andinternational law as the Tribunal determines to be applicable, taking into account relevant
usages of the trade, contract provisions and changed circumstances', above, chapter 18,
p. 946.
See e.g. Re Competetzce of the Conciliatiotz Cottzinission 22 ILR, p. 867 and above,
chapter 3, p. 99. See also article 28 of the 1928 General Act as revised in 1949, article 10 of the ILC Model Articles and articles 26 and 28 of the European Convention for
the Peaceful Settlement of Disputes. Note in addition the Rann of Kutch case, 50 ILR,
p. 520.
j9 See the Nottebolliri (Preliminary Objections) case, ICJ Reports, 1953, pp. 111, 119; 20 ILR,
pp. 567, 571-3. See also Arbitration Commission on Yugoslavia, Interlocutory Decisionof 4 July 1992,92 ILR, pp. 194, 197.
Articles 81 and 84, Hague Convention I, 1907. The principle of res judicata also applies toarbitration awards: see e.g. the Trail Srnelter case, 3 RIAA, 1938, p. 1905; 9 AD, 17. 324 andthe Orirloco Stearr~sllipCo. case, 11 RIAA, 1910, p. 227.
See e.g. 1lT.
M. Reisman, Nullity and Revision, New Haven, 1971; E. K. Nantwi, The Enforce-''"

ment of International Jtldicial Decisions and Arbitral Awards in Public International Law,
Leiden, 1967, and 0. Schachter, 'The Enforcement of International Judicial and Arbitral
Decisioils', 54 AJIL, 1960, p. 1.

INTER- STATE COURTS AND TRIBUNALS

957

where a tribunal exceeds its powers under the cornpromis, its award may
be treated as a nullity, although this is not a common occurrence. Such
excess of power (exces de pouvoir) may be involved where the tribunal
decides a question not submitted to it, or applies rules it is not authorised
to apply. The main example of the former is the North-Eastern Boundary
case42between Canada and the United States, where the arbitrator, after
being asked to decide which of two lines constituted the frontier, in factchose a third line.
It is sometimes argued that invalidity of the cornpromis is a ground ofnullity,43 while the corruption of a member of the tribunal or a serious
departure from a fundamental rule ofprocedure are further possibilities as
grounds of nullity.44Article 35 of the Model Rules on Arbitral Proceduredrawn up by the International Law Commission, for example, provides
for a successful plea of nullity in three cases: excess of power, corruptionof a tribunal member or serious departure from a fundamental rule ofprocedure, including failure to state the reasons for the award.45'Essential
error' has also been suggested as a ground of nullity, but the definition ofthis is far from unambiguous.46It would appear not to cover the evaluation
but may cover manifest errors48such as notof documents and e~idence,~'taking into account a relevant treaty or a clear mistake as to the appropriate
municipal law.49Of course, once a party recognises the award as valid andbinding, it will not be able to challenge the validity of the award at a laterstage.'' In certain circumstances, it may be open to a party to request arevision or re-opening of the award in order to provide for rectification" See C. C. Hyde, Iiifernational Law, 2nd edn, Boston, 1945, vol. 111, p. 1636. See also thePelletier case, ibid., p. 1640; the Panarna-Costa Rica Bol~rldarycase, 11 RIAA, 1900, p. 519
and US Foreign Relations, 1914, p. 994; the Charilizal case, 11 RIAA, p. 309, and the Cerruti
arbitrations, 6 AJIL, 1912, p. 965.
See e.g. Murty, 'Settlement: pp. 6 9 3 4 , and A. D. McNair, The Law of Treaties, Oxford,
1961, pp. 66-77.
44 See Schachter, 'Enforcement: p. 3. See also, as regards corruption, Moore, International
Arbitrationj, vol. 11, pp. 1660-4 and the Burairni arbitration, Wetter, Arbitral Procejs,
vol. 111, p. 357 and 545 HC Deb., col. 199, 1955.
45 See the British Guiana and Venezuela Bouridary case, 92 BFSP, 13. 160 and Wetter, Arbitral
Process, vol. 111, pp. 81 ff. See also the ArbitralA~vardby the King ofSpain case, ICJ Reports,
1960, pp. 188, 216; 30 ILR, pp. 457, 476.
46 See e.g. M u r t ~'Settlement', p. 696 and Merrills, International Dispute Settlement, p. 111.
47 Arbitral Award by the Kirig of Spain, ICJ Reports, 1960, pp. 188, 215-16; 30 ILR, pp. 457,
475. See also, as regards the Argentinian claim of nullity of the Beagle Clzannel award, 17
ILM, 1978, p. 738; 52 ILR, pp. 267-85.
48 See the Trail Smelter case, 3 RIAA, 1938, pp. 1905, 1957; 9 AD, p. 331.
See e.g. the Schreck case, Moore, International Arbitrations, \rol.II, p. 1357.
Arbitral Aivard by the King of Spain, ICT Reports, 1960, pp. 188, 213; 30 ILR, p. 473.

''

"
''

958

I N T E R N A T I O N A L LAW

of an error or consideration of a fact unknown at the time to the tribunal
and the requesting party which is of such a nature as to have a decisive
influence on the award.jl
Arbitration as a method of settling disputes combines elements ofboth
diplomatic and judicial procedures. It depends for its success on a certain
amount of goodwill between the parties in drawing up the compromis
and constituting the tribunal, as well as actually enforcing the award
subsequently made. A large part depends upon negotiating processes. On
the other hand, arbitration is an adjudicative technique in that the award
is final and binding and the arbitrators are required to base their decisionon law.j2 It will be seen in the following section just how close arbitration
is to judicial settlement of disputes by the International Court of Justice,and it is no coincidence that the procedure of arbitration through the
PCA began to decline with the establishment and consolidation of thePermanent Court of International Justice in the 1920s.
In recent years, there has been a rise in the number of inter-state arbitrations. The Rann of Kutch case,j3 the Anglo-French Continental Shelf
case,j4 the Beagle Channel case j5 and the Taba casej6 were all the subjectof arbitral awards, usually successfully." More recent examples include
the Eritrea/Yemen arbitration" and the Eritrea/Ethiopia case.j9 It may bethat further such issues may be resolved in this fashion, although a lot depends on the evaluation of the parties as to the most satisfactory methodof dispute settlement in the light of their own particular interests andrequirements.
Arbitration is an extremely useful process where some technical expertise is required, or where greater flexibility than is available before the" See e.g. UTetter,Arbitral Process, vol. 11, pp. 539 ff. See also article 29 of the ILC ModelI<~~les.
the definition of arbitration in Yeurbook ofthe ILC, 1953, vol. 11, p. 202.
" 50 ILR, p. 2. See also J. G. Wetter, 'The Rann of K~ltchArbitration', 65 AJIL, 1971, p. 346.
'4 Cmnd 7438, 1978; 54 ILR, p. 6. See further above, chapter 11, p. 529.
" HMSO, 1977; 52 ILR, p. 93. See M. N . Shaw, 'The Beagle Channel Arbitration A~vard:
6 Internutiorla1 Relations, 1978, p. 415.
j6 80 ILR, p. 244. See also D. W. Eowett, 'The Taba Award of 29 September 1988; 23 Isruel
L a ~ vReview, 1989, p. 429; G. Lagergren, 'The Taba Tribunal 1986-89: 1 African Journal ofInternational and Conzparative Luw, 1989, p. 525, and P. \Veil, 'Some Observations on the
Arbitral Award in the Taba Case', 23 Israel Law Revie~v,1989, p. 1.
Argentina initially rejected the award in the Beugle Channel case, but later mediation andnegotiations resolved the issue: see 17 ILM, 1978, p. 738 and 24 ILM, 1985, p. 1.
js 114ILR,p. 1 and119ILR,p.417.
"'ee
http://pca-cpa.org/PDF/EEBC/EEBC0/020-0/020Te~t0/020of0/020De~isioi1.htm.
"'ee"INTER- STATE COURTS AND TRIBUNALS

959

International Court is desired.60Speed may also be a relevant consideration. Arbitration maybe the appropriate mechanism to utilise as between
states and international institutions, since only states may appear before
the ICJ in contentious proceedings. The establishment of arbitral tribunals
has often been undertaken in order to deal relatively quietly and cheaplywith a series ofproblems within certain categories, for example, the mixed
tribunals established after the First World War to settle territorial questions, or the Mexican Claims commissions which handled various claims
against Mexico.
An attempt was made to tackle issues raised by the situation in theFormer Yugoslavia by the establishment of an Arbitration omm mission.^'However, the Commission, while issuing a number of Opinions on issues concerning, for example, statehood, recognition, human rights andboundarymatters, was not able to act as an arbitration tribunal as between
the parties to the conflict.62

Judicial settlement
The International Court of lusticeb3
Judicial settlement comprises the activities of all international and regional courts deciding disputes between subjects of international law, in
accordance with the rules and principles of international law. There areNote, for example, that in the Argentina-Chile case of 1966, the tribunal consisted of alawyer and two geographical experts, 38 ILR, p. 10.
61 Established pursuant t o the Declaration of 27 August 199 1 of the European Community:
see Bull. EC, 718 (1991). See generally, A.I. Craven, 'The EC Arbitration Commission o n
Yugoslavia', 66 BYIL, 1995, p. 333.
" See also the Iran-US Claims Tribunal, above, chapter 18, p. 946, and the Court of Conciliation and Arbitration of the OSCE, above, chapter 18, p. 936.
" See e.g. S. Rosenne, The Law and Prrzctice of the International Court, 1920-1996, 3rd edn,
The Hague, 4 vols., 1997, and Rosenne, The World Court, 5th edn, Dordrecht, 1995;
Fifty Years of the lnternatiorlal Court of lustice (eds. A. V. Lo~veand IM. Fit~maurice),
Cambridge, 1996; G. G. Fitzmaurice, Tlze Law and Procedure of the International Court ofJustice, Cambridge, 2 vols. 1986; H. Thirlway, 'The L a ~ vand Procedure of the International
Court of Justice (1960-1989)' series of articles in the British Year Book of International
Law from volume 60, 1989 to date; R. Y. Jennings, 'The International Court of Justiceafter Fifty Years', 89 AJIL, 1995, p. 493, and Jennings, 'The Role of the International Courtof Justice', 68 BYIL, 1997, p. 1; G. Guyomar, Commeiztaire dil RigLenlent de la Cl], Paris,
1983; E. McIlhinney, The Iliorld Court and the Corlteiilporary Law-MakingProcess, Alphen
aan den Riin, 1979; T. 0.Elias, The lilternational Court of Justice and Some Contemporary
Probleiils, hlphen aan den Rijn, 1983; Merrills, Inte~.natioilalDisp~lteSettlement, chapters
60

960

I N T E R N A T I O N A L LAW

a number of such bodies." However, by far the most important of suchbodies, both by prestige and jurisdiction, is the International Court ofJustice.
The impetus to create a world court for the international community
developed as a result of the atmosphere engendered by the Hague Conferences of 1897 and 1907. The establishment of the Permanent Courtof Arbitration, although neither permanent nor, in fact, a court, marked
an important step forward in the consolidation of an international legal
system. However, no lasting concrete steps were taken until after the conclusion of the First World War. The Covenant of the League of Nations
called for the formulation of proposals for the creation of a world court
and in 1920 the Permanent Court of International Justice (PCIJ) was created. It stimulated efforts to develop international arbitral mechanisms.
Together with arbitration, the Permanent Court was intended to provide
a reasonably comprehensive system serving the international community.
It was intended as a way to prevent outbreaks of violence by enabling easily accessible methods of dispute settlement in the context of a legal andorganisational framework to be made a~ailable.~'The PCIJ was superseded after the Second World War by the International Court of Justice (ICJ), described in article 92 of the Charter as theUnited Nations' 'principal judicial organ'. In essence, it is a continuationof the Permanent Court, with virtually the same statute and jurisdiction,
and with a continuing line of cases, no distinction being made between
those decided by the PCIJ and those by the ICJ.@
6 and 7; The Future of the Iilteri~ationizlCourt of Justice (ed. L. Gross), Dobbs Ferry, 2 vols.,
1976; The International Conrt of Justice at a Crossroads (ed. L. Damrosch), Dobbs Ferry,
1987; E. Lauterpacht, Aspects of the Admillistration of International Justice, Cambridge,
1991; T. M. Franck, 'Fairness in the International Legal and Institutional System', 240
HR, 1993 111, pp. 13, 302; R. Higgins, Problems and Process, Oxford, 1994, chapter 11;
Increasing the Effectiveness o f the International Court ofJnstice (eds. C. Peck and R. S. Lee),
The Hague, 1997; The International Court of Justice: Its Future Role after Fqty Years (eds.
A. S. Muller, D. RaiC and J. M. Thuranszky), The Hague, 1997; Nguyen Quoc Dinh et a].,Droit International Public, p. 889; K. H. Kaikobad, The International Court of Justice andJudicial Revietv, The Hague, 2000, and E. McIihinney, Judicial Settlement of International
Dispt~tes,Alphen aan den Rijn, 1991.
64 E.g. the EC Court of Justice: see below, chapter 23, p. 1177; the European Court of Human
Rights and the Inter-American Court of Human Rights, above, chapter 7, pp. 324 ff. and359 ff.; the Benelux Court of Justice created in 1965; the Court of Justice of the Cartagena
Agreement created in 1976 for members of the Andean Group; the European Nuclear
Energy Tribunal created in 1957; the European Tribunal on State Immunity, created in
1972; and the International Tribunal for the Law of the Sea, below, p. 1005.
65 For an assessment of its work, see e.g. Rosenne, Latv and Practice, rol. I , p. 19.
See e.g. M. Shahabuddeei~,Precedent in the World Court, Cambridge, 1996, pp. 22 ff.

INTER- STATE COURTS AND TRIBUNALSThe organisation of the court6'
The ICJ is composed of fifteen members:
elected regardless of their nationality, from among persons of high moral
character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults ofrecognised competence in international

The procedure for the appointment of judges is interesting in that it
combines both legal and political elements, while seeking to exclude as
far as possible the influence of national states over them. The system established by the Root-Phillimore plan in 1920 is in essence followed. This
plan played a large part in the actual creation of the PCIJ and succeededin allaying many suspicions regarding the composition of the proposed~ourt.~'The members of the Court are elected by the General Assembly and Security Council (voting separately) from a list of qualified persons drawn
up by the national groups of the Permanent Court of Arbitration, orby specially appointed national groups in the case of UN members thatare not represented in the PCA." This provision was inserted to restrict political pressures in the selection of judges. The elections are staggered and take place once every three years, with respect to five judges
each time. In this way some element of continuity amongst the Court ismaintained.
In practice, there is close co-ordination between the Assembly andSecurity Council in electing judges and political factors do obtrude, especially in view of the requirement contained in Article 9 of the Statutethat theelectors should bear in mind not only that the persons to he elected should
individually possess the qualifications required, but also that in the bodyas a whole the representation of the main forms of civilisation and of theprincipal legal systems of the world should be assured.

67 See e.g. Rosenne, Law arid Practice, vol. I , chapter 6 and vol. 111, chapter 17. See also

H. Thirlway, 'Procedural Law and the International Court of rustice' in Lowe andFitzmaurice, Fifty Years of the Irlterrlatiorial Court ofJustice, p. 389.
Article 2, Statute of the ICJ.
6' See e.g. Murty, 'Settlement: p. 700. See also L. Lloyd, Peace Through Law, London, 1997.
70 Articles 4 and 5 of the ICJ Statute. In practice, governments exercise a major influence
up011 the nominations process of the national groups: see Merrills, International Dispute
Settlement, p. 138.

962

I N T E R N A T I O N A L LAW

This process has attracted much criticism on the grounds of attendant
politicisation but in the circumstances it is difficult to see a way to avoid
this completely.71The opinions of individual judges can be crucial, particularly in sensitive cases, and the alteration in the stance adopted by
the Court with regard to the Namibia case between 1966'~and 19717"
can be attributed in large measure to changes in the composition of the
Court that took place in the intervening period. Candidates must obtainan absolute majority of votes in both the Assembly and the Council,74andno two successful applicants may be of the same nati~nality.'~
The members of the Court are elected for nine years and may be reelected.76They enjoy diplomatic privileges and immunities when on official busine~s,'~and a judge cannot be dismissed unless it is the unanimous
opinion of the other members of the Court that he has ceased to fulfil therequired conditions.'~hese include the requirement that no member
may exercise any political or administrative function or engage in any
other professional occupation. No member may act as agent, advocate,or counsel in any case and no member may participate in the decisionof any case in which he has previously taken part as agent, advocate orcounsel for one of the parties, or as a member of a national or international court, or of a commission of inquiry, or in any other ~apacity.'~The
Court elects a president and vice-president for a three-year term which
can be renewed," and it is situated at The ~ a g u e . ~ l
71 See e.g. Rosenne, Laiv and Practice, vol. I, pp. 395 ff., and Rosenne, 'The Composition of

the Court' in Gross, Future of the International Court o f Justice, pp. 377, 381-6. See also
G. Abi-Saab, 'The Interllatiollal Court as a World Court' in Lowe and Fitzmaurice, Fifty
Years of the International Court of Justice, p. 3.
'3 ICJ Reports, 1971, p. 16; 49 ILR, p. 2.
7' ICJ Reports, 1966, p. 6; 37 ILK, p. 243.
-74 Article 10, Statute of the ICJ.
' " Article 3, Statute of the ICJ.
.
.
" Artide 19, Statute of the ICJ.
" Article 13, Statute of the ICJ.
78 Article 18, Statute of the ICJ.
'9 Articles 16 and 17, Statute of the ICJ. Note the problem raised particularly in the Namibia
case, ICJ Reports, 1971, pp. 3, 6 and 9, of judges who had previously been involved in
the dispute albeit in another capacity. The Court did not accept the need to remove
the judges in question. Practice, however, has been variable and, for example, Judges
Fleischhauer (former UN Legal Counsel) and Higgins (former member of the Human
Rights Committee) felt unable to take part in the Application of tlze Genocide Convention
case: see CR 9615, 29 April 1996, p. 6. See also Rosenne, 'Composition', pp. 388-90, and
Law and Practice, vol. I, p. 410 and vol. 111, p. 1101; H. Thirlway, 'The Law and Procedureof the International Court of Justice 1960-1989: 72 BYIL, 2001, p. 38, and M. N. Shaw,'The Interilatioilal Court of Justice: A Practical Perspective', 46 ICLQ, 1997, pp. 831,
845-6.
Article 21, Statute of the ICJ.
Article 22, Statute of the ICJ.

INTER- STATE COURTS AND TRIBUNALS

9 63

Since the aim of the election procedures relating to the composition of
the Court is to produce a judicial body of independent members rather
than state representatives, the Statute provides in article 31 that judgesof the nationality of each of the parties in a case before the Court shallretain their right to sit in that case. However, the effect of this is somewhat
reduced by the provision in that article that the parties to a dispute before
the ICJ are entitled to choose a person to sit as judge for the duration ofthat
case, where they do not have a judge of their nationality there already.82
This procedure of appointing ad hoc judges may be criticised as possibly
adversely affecting the character of the Court as an independent organof legal experts.83The reason for the establishment and maintenance ofthe provision may be found within the realm of international politics
and can only be understood as
Nevertheless, it may be argued
that the procedure increases the judicial resources available to the Courtin enabling the appointing state's arguments to be fully a p p r e ~ i a t e d . ~ ~Judge ad hoc Lauterpacht in the Application of the Genocide (Provisional
Measures) case in a discussion of the nature of the ad hoc judge, declaredthat together with the duty of impartiality, the ad hoc judge has the special
obligation to ensure that so far as is reasonable, every relevant argument infavour ofthe party appointing him has been fully appreciated in the courseof collegial refle~tion.~'In practice the institution has not resulted in any
82 It is possible for states in this position not to appoint ad hoc judges: see e.g. the Temple o fPreah \Tihear case, ICJ Reports, 1962, p. 6; 33 ILR, p. 48.
See e.g. H. Lauterpacht, The Function of Law in the International Community, Oxford,
1933, pp. 2 15 ff. This provisioil should be distinguished from article 27(2) of the European
Con~entionon Human Rights, which similarly provides for the appointment of an ad hoc
judge to the Court. In this case, the Court deals with the provisions of mullicipal lawof the member states of the Council of Europe and measures their conformity with theConvention. It is thus necessary to retain some expertise as to the domestic system in thecase in question.
84 See e.g. S. Sch~vebel,'National Judges and Judges Ad Hoc of the International Court ofg e Hoc,'
Justice: 48 ICLQ, 1998, p. 889; N. Valticos, 'L'Evolution de la Notion de J ~ ~ d Ad
50 Revue Hellenique de Droit Internafionnl, 1997, pp. 11-12; H. Thierry, XLISujet du Juge
Ad Hoc: in Liber Anlicorunl Judge Rudn (eds. C. A. Armas Barea et al.), The Hague, 2000,
p. 285; Rosenne, Lutv and Practice, vol. 111, pp. 1123 ff., and L. V. Prott, The Latent Potverof Culture and the International Judge, Ahingdon, 1979.
See Franck, 'Fairness', p. 312. See also N. Singh, The Role and Record ofthe International
Court offzlstice, Dordrecht, 1989, pp. 193-4.
86 ICJ Reports, 1993, pp. 325, 408-9; 95 ILR, pp. 43,126-7, and see also at the CounterClaims Order phase of the case, ICJ Reports, 1997, pp. 243, 278; 115 ILR, p. 206. Judge
Lauterpacht'sviews were citedwith approval by Judge ad hocFranckin bldonesia/Maluysia,
ICJ Reports, 2002, Dissenting Opinion, paras. 9 ff.

964

I N T E R N A T I O N A L LAW

disruption of the functioning of the ICJ.~'While it is overwhelmingly thecase that ad hoc judges support the state that has so nominated them,this is not invariably so." The Court has also permitted the use of ad hoc
judges in advisory proceeding^.^^Article 29 of the Statute of the ICJ provides for the establishment ofa Chamber of Summary Procedure for the speedy dispatch of businessby five judges. It has not as yet been called upon. More controversially,
a seven-member Chamber for Environmental Matters was established inJuly 1993.'' Article 26 permits the creation of Chambers composed ofthree or more members as the Court may determine for dealing withparticular categories of cases9' or to deal with a particular case. This
procedure was revised in the 1978 Rules of theand used for the
first time in the Gulfof Maine case.93The question of the composition of
the Chamber is decided by the Court after the parties have been consulted,
and in such cases the identity of the judges to comprise the Chamberis clearly of critical value. In the Gulf of Maine case it was alleged that
" Note that Practice Direction VII of the Court now requires that 'parties, when choosing

a judge ad koc pursuant to Article 31 of the Statute and Article 35 of the Rules of Court,
should refrain from nominating persons who are acting as agent, co~ulselor advocate
in another case before the Court or have acted in that capacity in the three years preceding the date of the nomination. Furthermore, parties should likewise refrain fromdesignating as agent, counsel or advocate in a case before the Court a person who sits
as judge ad hoc in another case before the Court.' Practice Direction VIII provides in
addition that 'parties should refrain from designating as agent, counsel or advocate in acase before the Court a person who in the three years preceding the date of the designation was a Member of the Court, judge ad hoc, Registrar, Deputy-Registrar or higher
official of the Court': see http://wcvcv.icj-cij.org/icj~vc~~~~/ibasi~do~~~ments/iba~i~t
ibasic-PracticeDirection-200 11030-1-VI.htm1.
See e.g. the Application for Revision and Iitferpretatioit of the Judginent made in the
TtlnisialLibya case, ICJ Reports, 1985, p. 192; 81 ILR, p. 419, and the Great Belt
(Finland v. Denmark) case, ICJ Reports, 1991, p. 12; 94 ILR, p. 446.
89 See the T.\lestern Sahara case, ICJ Reports, 1975, p. 12; 59 ILR, p. 30. Cf. the Namibia case,
ICJ Reports, 1971, p. 16; 49 ILR, p. 2. See also L. Gross, 'The International Court of lustice:
Consideration of Requirements for Enhancing its Roles in the International Legal Order'
in Gross, Future of the International Court of Justice, vol. I, p. 61.
90 See International Court of Justice, Yearbook 1993-1994, The Hague, 1994, p. 18. It has not
yet been called upon, no doubt partly because whether or not an issue is an environmental
one may indeed be very much in dispute between the parties: see R. Higgins, 'Respecting
Sovereign States and Running a Tight Ship', 50 ICLQ, 2001, pp. 121, 122.
91 Labour cases and cases relating to transit and con~munications
are specifically mentioned.
92 See articles 15-18 and 90-3 of the Rules of Court.
93 ICJ Reports, 1982, p. 3 and ibid., 1984, p. 246; 71 ILR, p. 58. The Chamber consistedof Tudge Ago (President) and Judges Gros, Mosler and Schwebel and Judge ad hoc
Cohen.

"

INTER- STATE COURTS AND TRIBUNALS

965

Canada and the US threatened to withdraw the case if their wishes as tocomposition were not carried out." Judge Oda has underlined that 'inpractical terms, therefore, it is inevitable, if a chamber is to be viable, thatits composition must result from a consensus between the parties andthe Court', although the Chamber is a component of the Court and 'theprocess of election whereby it comes into being should be as judicially
impartial as its subsequent f~nctioning'.~'Recourse to a Chamber provides the parties with flexibility in the choiceof judges to hear the case and to that extent parallels a r b i t r a t i ~ n Of.~~
the first two matters before Chambers of the Court, perhaps the moreinteresting from the perspective of the future development of the ICJ wasthe ~ u r k i n ~a a s o - M a l icase,97since African states have hitherto been mostreluctant in permitting third-party binding settlement of their disputes.
Chambers of the Court have also been utilised in the Elettronica Sicula
case98and in the Land, Island and Maritime Frontier Dispute between El
Salvador and ~ o n d u r a sIn. ~all~ cases, the request was for five judges withelections by secret ballot except in the case of ad hoc judges. Since thistime, however, no new Chambers have been established.
The Rules of the Court, which govern its procedure and operations,were adopted in 1946 and revised in 1972 and 1978.'0° Articles 79 and
80 of the 1978 Rules were amended in December 2 0 0 0 . ~ ~The' internal
judicial practice of the Court has been the source of discussion in recent
9"eee.g. Merrills, International Dispute Settlement, p. 140, and Brauer, 'International Conflict Resolution: The ICJ Chambers and the Gulf of Maine Dispute: 23 Va. JIL, 1982-3,
p. 463. See also Singh, Role and Record, p. 110.
95 1CJ Reports, 1987, pp. 10, 13; 97 ILR, pp. 139, 142.
" Although concern was expressed about the unity of the jurisprudence of the Court by frequent use of ad hoc Chambers: see H. Mosler, 'The Ad Hoc Chambers of the International
Court of Justice' in International Laiv at a Time ofperplexity (ed. Y.Dinstein), Dordrecht,
1989, p. 449. See also S. Schwebel, 'Chambers of the International Court of Justice formed
for Particular Cases: ibid., p. 739; E. Valencia-Ospina, 'The Use of Chambers of the International Court of lustice' in Lo~veand Fitzmaurice, Fifty Years of the International
Court of Jclstice, p. 503, and Franck, 'Fairness: pp. 314 ff. As to the precedential value ofdecisions of Chambers, see Shahabuddeen, Precedent, pp. 171 ff. See also Thirlway, 'Law
and Procedure: 2001, pp. 38,46.
9' See22 ILM, 1983,p.1252 andCommunique ofthe ICJNo. 8518,l May 1985. Thechamberconsisted of Judge Bedjaoui (President) and Judges Lachs and Ruda, with Judges ad hoc
Luchaire and Abi-Saab: see ICJ Reports, 1986, p. 554; 80 ILR, p. 441.
98 ICJ Reports, 1989, p. 15; 84 ILR, p. 311.
99 See ICJ Reports, 1987, p. 10; 97 ILR, pp. 112 and 139.
loo See Rosenne, Law and Practice, vol. 111, p. 1074.
l o ' See http://www,icj-cij.org/icjwwliba~icdoc~~ments/ibasictext/ibasicrulesofcourt~
20001205.11tml. See further below, pp. 983 and 990.

966

I N T E R N A T I O N A L LAW

years'02and some changes have taken place.'03 The Court has, for example,
now adopted Practice ~ i r e c t i o n s .The
' ~ ~ Court has the power to regulate
its own procedure.lO' Written pleadings are governed by articles 44 to 53
of the Rules of Court, which in fact allow the parties considerable latitude.
While it is for the Court itself to determine the number, order and timingof filings of pleadings, this is done in consultation with the parties and the
Court is ready to allow parties to extend time limits or determine whether,for example, there should be further rounds of pleadings.'06
The jurisdiction of the courtIo7
General The International Court is a judicial institution that decides
cases on the basis of international law as it exists at the date of the decision. It cannot formally create law as it is not a legislative organ.lo8The
Court has emphasised that, 'it states the existinglaw and does not legislate.
lo2 See e.g. D. Bowett et al., The Interrlational Court ofJmstice: Process, Practice and Procedures,

London, 1997. See also e.g. Jennings, 'Role: pp. 8 ff.; M. Bediaoui, 'La "Fabrication" desArrets de la Cour Internationale de Justice' in Mklanges 17irally, Paris, 1991, p. 87, andS. Oda, 'The International Court of Justice Viewed from the Bench: 244 HR, 1993-VII,
p. 13. See also Shaw, 'International Court: pp. 862 ff.
lo' See the 1976 Resolution on Practice, International Court of Justice, Acts and Docun~ents
Concerning the Organisatiolz of the Court, The Hague, 1989, p. 165. See also Higgins,'Respecting Sovereign States:
lo4 Currently nine: see http://~mm~~.icj-cij,org/icjmm~/ibasicdocuments/ibasictext/ibasicPracticeDirection-20011030-1-VI.htm1.
The majority seek essentially to ensure that theparties keep strictly to the Rules concerning pleadings and to restrict the tendency to
produce large numbers of annexes.
See e.g. Judge Weeramantry's Dissenting Opinion in the Request for an Examination of
the Situatior~in Accordance ivith Paragraph 63 of the Nuclear Tests Case, ICJ Reports, 1995,
pp. 288, 320, where he noted that this power enabled it to devise a procedure s u ~generis.
'"hememorial is to contain a statement of relevant facts, a statement of law and thesubmissions. The counter-memorial is to contain an admission or denial of the facts
stated in the memorial. any additional facts if necessary. observations uvon the statementof law in the memorial and a statement of law in answkr thereto and the submissions: see
articles 49(1) and (2) of the Rules. The reply and rejoinder, if authorised by the Court,
are to be directed at bringing out the issues still dividing the parties, article 49(3).
lo' See e.p. Rosenne, Law and Practice, vol. 11. See also M. N. Sham., 'The Security Council
and the International Court of Justice: Judicial Drift and Judicial Function' in bfuller
et al., Irtterrlatiorial Court ofJustice: Future Role, 13. 219; IV. M. Reisman, 'The Supervisory
Jurisdiction of the International Court of Justice: International Arbitration and International Adjudication', 258 HR, 1996, p. 9, and S. A. Alexander, 'Accepting the Compulsory
Jurisdiction of the International Court of Justice with Reservations', 14 Leiden Journal ofInternational Law, 2001, p. 89. See also the series of articles by Thirlway on 'The Law andProcedure of the International Court of Justice' in the British Year Book of International
Law from 1989 to date.
lox See the Fisheries Jtlrisdiction case, ICJ Reports, 1974, pp. 3, 19; 55 ILR, pp. 238,254.

INTER- STATE COURTS AND TRIBUNALS

967

This is so even if, in stating and applying the law, the Court necessarily
has to specify its scope and sometimes note its general trend.'lo9Its views
as to what the law is are of the highest authority. However, the mattersthat come before it are invariably intertwined with political factors. On
occasions, such matters are also the subject of consideration before thepolitical organs of the UN or other international organisations or indeed
the subject of bilateral negotiations between the parties. This raises issues
as to the proper function and role of the Court. The International Courtof Justice is by virtue of article 92 of the Charter the 'principal judicialorgan of the United Nations'. It is also, as Judge Lachs put it, 'the guardianof legality for the international community as a whole, both within andwithout the United ~ a t i o n s ' . "It~ has been emphasised that the 'functionof the Court is to state the law"" and it can only decide on the basis oflaw.l12 Nevertheless, political factors cannot but be entwined with questions of law. The Court has noted that while political aspects may bepresent in any legal dispute brought before it, the Court was only concerned to establish that the dispute in question was a legal dispute 'in thesense of a dispute capable of being settled by the application of principles
and rules of international law'.'13 The fact that other elements are present
cannot detract from the characterisation of a dispute as a legal dispute.'14
The Court has also referred to the assessment of the legality of the possible conduct of states with regard to international legal obligations as an'essentially judicial task'.l15
ln9 Legality of the Threat or Use of Ntlclear T4kapons, ICJ Reports, 1996, pp. 226,237.

The Lockerbie case, ICJ Reports, 1992, pp. 3,26; 94 ILR, pp. 478, 509.
The Northern Cafrleroons case, ICJ Reports, 1963, pp. 15, 33; 35 ILR, pp. 353, 369.
See the Haya de la Torre case, ICT Reports, 1951, pp. 71, 79; 18 ILR, p. 349. See also Judge
Weeramantry's Dissenting Opinion in the Lockerbie case, ICJ Reports, 1992, pp. 3,56; 94
ILR, pp. 478, 539.
' I 3 The Arrned Actions (Nicaragua v. Honduras) case, ICJ Reports, 1988, pp. 16, 91; 84 ILR,
pp. 218, 246. See also the Certain Expenses of the United Aiations case, ICJ Reports, 1962,
pp. 151, 155; 34 ILR, pp. 281, 285, and the Tadit case before the Appeals Chamber of
the Yugoslav War Crimes Tribunal, IT-94-1-AR72, p. 11. See also R. Higgins, 'Policy
Considerations and the International Tudicial Process: 17 ICLQ, 1968, pp. 58, 74.
' I 4 ICJ Reports, 1988, p. 92; 84 ILR, p. 247. See also the Iranialz Hostages case, ICJ Reports,
1980, pp. 7, 19-20; 61 ILR, pp. 530, 545-6 and Legality o f the Threat or Use of Nuclear
Weapons, ICJ Reports, 1996, pp. 226, 234. See, for the view that rather than concentrate
upon definitions of legal and political questions, one should focus upon the distinctions
between political and legal methods of dispute settlement, R. Y. Jennings, 'Gerald Gray
Fitzmaurice', 55 BYIL, 1984, pp. 1, 18, and R. Higgins, 'Policy Considerations: p. 74.
11' See the Advisory Opinion on the Legality of the Use by a State ofNuclear Weapons in
Armed Conflict, 1CJ Reports, 1996, pp. 66, 73. See also e.g. the Certain Expenses case, ICJ
Reports, 1962, pp. 151, 155; 34 ILR, pp. 281,284-5.

'I0

11'

'''

968

I N T E R N A T I O N A L LAW

The fact that the same general political situation may come before different organs of the UN has raised the problem of concurrent jurisdiction.
The Court, however, has been consistently clear that the fact that the issue
before the Court is also the subject of active negotiations between theparties,"6 or the subject of good offices activity by the UN SecretaryGeneral'" or the subject of consideration by the Security C ~ u n c i l "or~regional ~ r ~ a n i s a t i o n s ,will" ~ not detract from the competence of the
Court or the exercise of its judicial function. The Court has noted that the
Security Council has functions of a political nature, while the Court itself
has functions of a legal nature, and that therefore both organs could perform their separate but complementary functions with respect to the same
events.120The Court may also indicate provisional measures ofprotection
at the same time as the UN Secretary-General is organising a fact-finding
mission to investigate the same events.121The Court's essential function
is to resolve in accordance with international law disputes placed before
it122and to refrain from deciding points not included in the final submissions of the parties.123The provision as to international law relates tothe sources of law available for application by the Court and is considered~ u b s e q u e n t l y .The
' ~ ~ obligation to decide was referred to by the Court in
the Libya/Malta (Application for Permission to Intervene) case,'25 where
it was noted that it was the duty of the Court 'to give the fullest decision it may in the circumstances of each case'.126However, this obligation
is subject, for example, to jurisdictional limitations (for example, with

See the Aegean Sea Continental Shelfcase, ICJ Reports, 1976, pp. 3, 12; 60 ILR, pp. 562,
571.
See the Iranian Hostages case, ICJ Reports, 1980, pp. 7,21-2; 61 ILR, pp. 530, 547-8.
] I 8 See the Nicaragua case, ICJ Reports, 1984, pp. 392,431-4; 76 ILR, pp. 104, 142-5.
ICJ Reports, 1984, p. 440 and Cameroon v. Nigeria (Preliminary Objections), ICJ Reports,
1998, pp. 275, 307.
ICJ Reports, 1984, p. 435; 76 ILR, p. 146.
I"
Cameroon v. Nigeria (Provisional Meastlres), ICJ Reports, 1996, pp. 13, 22.
See e.g. Judge Weeramantry's Dissenting Opinion in the Lockerbiecase,ICJ Reports, 1992,
pp. 3,516; 94 ILR, pp. 478,539.
See the Rei~trestfor the Interpretation of the Jtldgment in the Asyl~lnlCase, ICJ Reports,
1950,pp.395,402; the Qatar v. Balzraincase, ICJReports, 2001, para. 183 and the Congo v.
Belgitl111case, ICJ Reports, 2002, para. 43.
""eebelow, p. 983.
ICJ Reports, 1984, pp. 3, 25; 70 ILR, pp. 527,554.
See also Judge U'eeramantry's Dissenting Opinion in the East T i m o ~case, ICJ Reports,
1995, pp. 90, 158. See also generally M. Bedjaoui, 'Expediency in the Decisions of theInternational Court of Justice', 71 BYIL, 2000, p. 1.

"'

INTER- STATE COURTS AND TRIBUNALS

969

regard to the rights of third states)I2' and questions related to judicial
propriety.128
The concept of jurisdiction also imports the notion of seisin, which
relates to the way in which the Court's jurisdiction is first engaged. The
Court noted in the Qatar/Bahrain case129that 'as an act instituting proceedings, seisin is a procedural step independent ofthe basis ofjurisdiction
invoked', although the question as to whether the Court has been validly
seized was a question of j~risdiction.'~'The Court has underlined thatthe question as to the establishment of jurisdiction is a matter for the
Court itself. Although a party seeking to assert a fact must prove it, theissue of jurisdiction is a question of law to be resolved by the Court in
the light of the relevant facts.13' Further, jurisdiction must be determinedat the time that the act instituting proceedings was filed, so that if the
Court had jurisdiction at that date, it will continue to have jurisdiction
irrespective of subsequent events. Subsequent events may lead to a findingthat an application has become moot, but cannot deprive the Court ofjurisdiction.132
The nature of a legal dispute Article 36(2) of the Statute of the Court
requires that a matter brought before it should be a legal dispute.13' Although it is not possible to point to a specific definition, the approach
adopted by the Permanent Court in the Mavrommatis Palestine Concessions (Jurisdiction) case134constitutes the appropriate starting point. The
Court declared that a dispute could be regarded as 'a disagreement overa point of law or fact, a conflict of legal views or of interests between two
persons'. It is to be distinguished from a situation which might lead to
See e.g. the Monetary Gold case, ICJ Reports, 1954, p. 32; 21 ILR, p. 399, and the East
Timor case, ICJ Ileports, 1995, pp. 90, 105.
I"
See further below, p. 983.
ICJ Reports, 1995, pp. 6,23-4; 102 ILR, pp. 1, 64-5.
See Thirlway, 'Law and Procedure: 1998, pp. 1, 10, and Rosenne, Lazv and Practice, vol.
11, p. 599.
See the Fisheries Jurisdiction (Spain v. Canada) case, ICJ Reports, 1998, pp. 432,450. See
also the Armed Actions (Nicaragua v. Honduras) case, ICJ Reports, 1988, p. 76.
13' Congo v. Belgium, ICJ Reports, 2002, para. 26.
The Court noted in the Nuclear Tests case, ICJ Reports, 1974, pp. 253, 270-1; 57 ILR,
pp. 398, 415-16, that 'the existence of a dispute is the primary condition for the Court
to exercise its judicial fiinction'. It is also a question which is 'essentially preliminary', ICJ
Reports, 1974, p. 260; 57 ILR, p. 405.
West Africa cases, ICJ Reports, 1962,
PCIJ, Series A, No. 2, 1924, p. 11. See also the Soz~thpp. 319, 328; 37 ILR, pp. 3, 10 and the Nticleur Tests case, ICJ Reports, 1974, p. 253; 57
ILR, p. 398.
I"

"'

970

I N T E R N A T I O N A L LAW

international friction or give rise to a dispute. This is a subtle but important difference since, for the process of settlement to operate successfully,
there has to be a specific issue or issues readily identifiable to be resolved.
In the Interoretation o f Peace Treaties case1" the Court noted that'whether there exists an international dispute is a matter for objective
determination' and pointed out that in the instant case 'the two sides
hold clearly opposite views concerning the question of the performanceor the non-performance of certain treaty obligations' so that 'international disputes have arisen'. A mere assertion is not sufficient; it must be
shown that the claim of one party is positively opposed by the other.'36
This approach was reaffirmed in the Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreementcase,'" where the Court in an advisory opinion noted that the consistent
challenge by the UN Secretary-General to the decisions contemplated
and then taken by the US Congress and Administration with regard to theclosing of the PLO offices in the US (which of necessity included the PLO
Mission to the United Nations in New York) demonstrated the existenceof a dispute between the US and the UN relating to the Headquarters
Agreement. In the East Timor case13' the Court again reaffirmed its earlier case-law and went on to note that 'Portugal has rightly or wrongly,
formulated complaints of fact and law against Australia, which the latterhas denied. By virtue of this denial, there is a legal dispute.' This acceptance of a relatively low threshold was underlined in the Application of
the Genocide Convention (Bosnia and Herzegovina v. Yugoslavia) case,139
where the Court stated that 'by reason of the rejection by Yugoslavia of
the complaints formulated against it by Bosnia-Herzegovina, "there is alegal dispute" between them'. Such denial of the allegations made against
Yugoslavia had occurred 'whether at the stage of proceedings relating to
the requests for the indication of provisional measures, or at the stage of1

J

ICJ Reports, 1950, pp. 65, 74; 17 ILR, pp. 331, 336.
""uuth-~est~fricacases,~CJ~eports,1962,pp.319,328; 3 7 I L R , p p . 3,lO andtheNicaraguacase, ICJ Reports, 1984, pp. 392,429-41; 76 ILR, pp. 104,140. See also Larsen v. Hawaiiail
Kiizgdoin 119 ILR, pp. 566,587. Note also that Kelsen wrote that 'a dispute is alegal disputei f it is t o b e settled b y t h e application o f legal n o r m s , that is t o say, b y t h e applicationo f existing law', Principles of Itzterrzational Law ( e d . R. W Tucker), 2 n d e d n , N e w York,
1966, p. 526. See also Rosenne, Latv and Practice, vol. 11, pp. 517 f f . Higgins has m a d e
t h e point that generally t h e C o u r t has taken a robust attitude as t o w h a t is a 'legal'
Gowlland-Debbas, ' T h ematter, Problerrls and Process, O x f o r d , 1994, p. 195. See also I?
Relationship between t h e International C o u r t o f Justice and t h e Security Council i n t h eLight o f t h e Lockerbie Case: 88 AJIL, 1994, p. 643.
13' ICJ Reports, 1988, pp. 12, 30; 82 ILR, pp. 225, 248.
138 ICJ Reports, 1995, pp. 90, 99-100.
L39 ICJ Reports, 1996, para. 29.

INTER- STATE COURTS AND TRIBUNALS

97l

the present proceedings relating to those objection^'.'^^ In other words,
in order for a matter to constitute a legal dispute, it is sufficient for the respondent to an application before the Court merely to deny the allegations
made even if the jurisdiction of the Court is challenged.141
The existence of a dispute is merely the beginning, for the Court may
need to ascertain 'the true subject ofthe claim' and this will be done by taking into account not only the submission but the application as a whole,
the arguments of the applicant before the Court and other documents referred to, including the public statements of the a p p 1 i ~ a n t . Should
I ~ ~ theCourt conclude that the dispute in question has disappeared by the time
the Court makes its decision, because, for example, the object of the claim
has been achieved by other means, then the 'necessary consequences' will
be drawn and no decision may be given.'43In all events, the determination
on an objective basis of the existence of a dispute is for the Court i t ~ e 1 f . l ~ ~It is also clear that the exhaustion of diplomatic negotiations is not a prerequisite to going to the court,14' while the question of non-exhaustionof domestic remedies is an admissibility issue.'" The International Court
has also emphasised that a legal dispute is one capable of being settled by
the application of the principles and rules of international law and thatit cannot concern itself with the political motivation of a state in seeking
judicial settlement of a dispute.14'
It should also be noted that in dealing with issues of jurisdiction, theCourt will not attach as much importance to matters of form as would be
the case in domestic la~v.l~"he Court possesses an inherent jurisdiction'" Ibid., para. 28.
See also El Salvizdor/Honduras, IC1 Reports, 1992, pp. 351, 555; 97 ILR, p. 112.
'" The Nuclear Tests case, ICJ Reports, 1974, pp. 253, 263; 57 ILR, pp. 398, 408. See also

141

Spain r. Canada, IC1 Reports, 1998, pp. 432, 449.
The Ntlclear Tests case, ICJ Reports, 1974, pp. 253, 271; 57 ILR, p. 416. See also theNorthern Cameroons case, ICJ Reports, 1963, pp. 15, 38; 35 ILR, p. 353 and Congo v.
Belgitlrn, ICJ Reports, 2002, para. 32.
''' Spain v. Canada, IC1 Reports, 1998, pp. 432, 448.
14' Cartieroon v. Nigeria (Prelirtiinary Objections), IC1 Reports, 1998, pp. 275, 303.
'46 Congo V. Belgium, ICJ Reports, 2002, para. 40.
14' See the Case Concerning Border and Transborder Arrned Actions (Nicaragua v. Honduuas),
ICJ Reports, 1988, pp. 69,91. See also the Advisory Opinions on the Legality of the Use by
a State ofNuclear Mieapons in Arnied Conflict, ICJ Reports, 1996, para. 17, and the Legalityof the Threat or Use of Nuclear Weapons, ICJ Reports, 1996, para. 13.
'48 See the Application of the Genocide Corivention (Prelirriinary Objections) case, ICJ Reports,
1996, para. 24. See also the Mavromrr~atisPalestine Concessions case, PCIT, Series A, No.
2, p. 34; 2 AD, p. 27, and the Northern Canieroons case, ICJ Reports, 1963, pp. 15, 28;
35 ILR, pp. 353, 363. The Court in Carr~eroorl v. Nigeria (Provisional 1Measures), IC1
Reports, 1994, p. 105; 106 ILR, p. 144, in fixing relevant time limits for the parties, noted
14'

972

I N T E R N A T I O N A L LAW

to take such action as may be required in order to ensure that the exercise
of its jurisdiction over the merits, once established, is not frustrated,
and to ensure the orderly settlement of all matters in dispute, to ensure
the 'inherent limitations on the exercise of the judicial function' of the
Court and to 'maintain its judicial character:'" The Court has also heldthat where jurisdiction exists over a dispute on a particular matter, noseparate basis for jurisdiction is required in order to consider the questionof remedies.l5'
Contentious jurisdiction151 The jurisdiction ofthe International Court
falls into two distinct parts: its capacity to decide disputes between states,
and its capacity to give advisory opinions when requested so to do byparticular qualified entities. The latter will be noted in the following section.
Article 34 of the Statute of the Court declares that only states may beparties in cases before the Court. This is of far-reaching importance since
it prohibits recourse to the Court by private persons and internationalorganisations, save in so far as some of the latter may be able to obtainadvisory opinions. The Court is open to all states that are parties to the
Statute. Article 93 of the UN Charter provides that all UN members are
ips0 facto parties to the Statute of the ICJ, and that non-members of
the UN may become a party to the Statute on conditions determined by
the General Assembly upon the recommendation of the Security Council.
In the case of Switzerland, for example, the Assembly and Security Council
declared that it could become a party to the Statute of the ICJ provided it
accepted the provisions ofthat Statute, accepted all the obligations of a UN
member under Article 94 of the Charter (i.e, undertaking to comply withthe decision of the Court), and agreed to pay a certain amount towards
the expenses of the court.'j2 AS far as other states may be concerned, thethat Cameroon had submitted an additional application after its original application, by~ ~ l l i itc hsought to extend the object of the dispute. It was intended as an amendment
to the first application. There is no provision in the Statute and Rules of the Court foramendment of applications as such, although in this case Nigeria consented to the request
and the Court accepted it.
14' The Nuclear Tests case, ICJ Reports, 1974, pp. 253, 259; 57 ILR, pp. 398, 404, citing theNorthern Cameroons case, ICJ Reports, 1963, pp. 15,29;35 ILR, pp. 353, 365.
The LaGrand case, ICT Reports, 2001, para. 48.
See e.g. Rosenne, Law and Practice, vol. 11, and R. Szafarz, The Compt~lsoryJ~~risdictionofthe Irlterr~ationalCourt offustice, Dordrecht, 1993.
'j2 General Assembly resolution 91 (I). Switzerland became a member of the UN in
September 2002. See also Rosenne, Laiv and Practice, vol. 11, p. 616. Tapan, Liechtenstein, Nauru and San Marino were also in the same position until 1956, 1990, 1999 and1992 respectively.

'"

INTER- STATE COURTS AND TRIBUNALS

973

Court may be open to them upon conditions laid down by the Security
Council, which should not place the parties in a position of inequality
before the Court.''"The Security Council has in fact resolved that access to the ICJ for a state
not party to the Statute is possible provided that such state has previously
deposited with the registrar of the Court a declaration (either general orparticular) accepting the jurisdiction of the Court and undertaking tocomply in good faith with the decision or decisions of the court.'j4 West
Germany filed a general declaration with the ICJ on this basis before it~ ltalyl" filed particular declarajoined the U N , " ~ while ~ l b a n i a ' jandtions with respect to cases with which they were involved. Although only
states may be parties before the Court, the Court may request information relevant to cases before it from public international organisations
and may receive information presented by these organisations on theirown initiative.'''Article36(1) The Court has jurisdiction under article 36(1) ofits Statutein all cases referred to it by parties, and regarding all matters speciallyprovided for in the UN Charter or in treaties or conventions in force.'59
As in the case of arbitration, parties may refer a particular dispute to the
ICJ by means of a special agreement or compromis, which will specify
the terms of the dispute and the framework within which the Court is tooperate.lbOThis method was used in the Minquiers and Ecrehos case,lb'
and in a number of others.'62
lS3 Article 35(2), Statute of the ICJ.
154 Security Council resolution 9 (1946).
Is'The North Sea Continental Shelfcase, ICJ Reports, Pleadings, uol. I, pp. 6, 8.

lS6 The Corfu Channel case, ICJ Reports, 1949, p. 4; 16 AD, p. 155.
Is'

The Monetary Gold case, ICJ Reports, 1954, p. 19; 21 ILR, p. 399.

'" Article 34(2), Statute of the ICJ. See also Rosenne, Law and Practice, vol. 11, pp. 638 ff.
Individuals, groups and corporations have no right of access to the Court: see here also
H. Lauterpacht, blternational Law and Human Rights, London, 1950, p. 48. Note that
Judge Higgins has written that, 'There is some flexibility I think for possible amicus briefs
by NGOs in advisory opinion cases, and I think that a useful possibility for the Court to
explore: 'Respecting Sovereign States: p. 123.
lSy See also article 40 of the ICJ Statute and article 39 of the Rules of Court.
160 See e.g. L. C. Marion, 'La Saisine de la CIJ par Voie de Compromis', 99 RGDIP, 1995,
p. 258.
16' ICJ Reports, 1953, p. 47; 20 ILR, p. 94.
16' See e.g. the Belgium/Netherlands Frontier Landcase, ICJ Reports, 1959, p. 209; the Tunisia/
Libya Continental Shelf case, ICJ Reports, 1982, p. 18; 67 ILR, p. 4 and the Lihya/Chadcase, ICJ Reports, 1974, p. 6; 100 ILR, p. 1.

974

I N T E R N A T I O N A L LAW

The jurisdiction of the Court is founded upon the consent of the parties,163which need not be in any particular form and in certain circumstances the Court will infer it from the conduct of the parties. In the Corfu
Channel (Preliminary Objectioizs) case,164the Court inferred consent fromthe unilateral application of the plaintiff state (the United Kingdom) coupled with subsequent letters from the other party involved (Albania) intimating acceptance of the Court's jurisdiction. The idea whereby theconsent of a state to the Court's jurisdiction may be established by meansof acts subsequent to the initiation of proceedings is referred to as thedoctrine of f o r ~ m p r o r o ~ a t u m
It .has~ been applied in other cases before
the Court, but it is carefully interpreted to avoid giving the impressionof a creeping extension by the Court of its own jurisdiction by means offictions. Consent has to be clearly present, if inferred, and not merely atechnical creation.16"he Court has emphasised that such consent has
to be 'voluntary and indisputable'.16' In the Corfti Channel case the UKsought to found the Court's jurisdiction inter alia on the recommendationof the Security Council that the dispute be referred to the Court, which it
was agreed was a 'decision' binding upon member states of the UN in accordance with article 25 of the Charter.168Accordingly it was maintained
See the Nicarag~~acase,
ICJ Reports, 1986, pp. 3,32; 76 ILR, pp. 349,366. The Court notedin the Application for the Iizterpretatiorz and Revision of the Judginent in the TunisialLihya
Case case, ICJ Reports, 1985, pp. 192,216; 81 ILR, pp. 419,449, that it was 'a fundainental principle' that 'the consent of states parties to a dispute, is the basis of the Court's
jurisdiction in contentious cases', citing here the Interpretation ofpeace Treaties case, ICJ
Reports, 1950, p. 71; 17 ILR, pp. 331, 335. See also Cameroon v. hrigeria, ICJ Reports,
2002, para. 238.
lh4 ICJ Reports, 1948, p. 15; 15 AD, p. 349.
16' See e.g. Rosenne, Law and Practice, vol. 11, pp. 695 ff.,and S. Yee, 'Forum Prorogatum in
the International Court: 42 German YIL, 1999, p. 147. An example of this recently was
the application filed against France by the Republic of the Congo on 9 December 2002
with regard to which the former gave its consent on 11 April 2003: See ICJ Press Release2003114. See also article 38(5) of the Rules and the Court's order of 17 June 2003.
'66 See e.g. the Monetary Gold case, ICJ Reports, 1954, pp. 19, 31; 21 ILR, pp. 399,406. But
cf. the Treatrrlent in Hungary ofAircraft of the U S A case, ICJ Reports, 1964, pp. 99, 103;
the Aerial Incident ( U S A v. LTSSR)case, ICJ Reports, 1956, pp. 6, 9, 12, 15 and the two
Antarcticcases, ICJ Reports, 1958, p. 158 and ibid., 1959, p. 276. Note that article 38(2) of
the 1978 Rules of the Court stipulates that the application shall specify as far as possible
the legal grounds upon which the jurisdiction of the Court is said to be based.
16' Corftl Channel (Prelirr~inary
Oi~jection),ICJ Reports, 1948, p. 27. See also Application of
the Genocide Convention, ICJ Reports, 1996, pp. 595, 621.
Although not a member of the UN, Albania had agreed to assume the obligations of amember with regard to the dispute. This application was on the basis ofthat part of article
36(1) which specifies that the Court's jurisdiction also comprised 'all matters specificallyprovided for in the Charter' of the UN.
16'

INTER- STATE COURTS AND TRIBUNALS

975

by the UK that Albania was obliged to accept the Court's jurisdiction
irrespective of its consent. The ICJ did not deal with this point, since it
actually inferred consent, but in a joint separate opinion, seven judges of
the Court rejected the argument, which was regarded as an attempt to
introduce a new meaning of compulsory jurisdiction."j9 A particularly
difficult case with regard to the question as to whether relevant events
demonstrated an agreement between the parties to submit a case to the
Court is that of Qatar v. ahr rain.'^' The issue centred upon minutes of ameeting signed by the Foreign Ministers of both states (the Doha Minutes)
in December 1990. The status of such Minutes was controverted,17' but
the Court held that they constituted an agreement under international
law.'72 There was also disagreement over the substance of the Minutes
and thus the subject matter of the dispute to be placed before the Court.
Bahrain defined the issue as including the question of 'sovereignty' over
Zubarah, while Qatar merely accepted that that was how Bahrain characterised the issue.173The Court concluded that this was sufficient to lay thewhole dispute, including this element, before it.174Questions do therefore remain with regard to the extent of the consensual principle after thisdecision.17'
It is a well-established principle that the Court will only exercise jurisdiction over a state with its consent176and it 'cannot therefore decide upon legal rights of third states not parties to the proceeding^'.'^^As a consequence of this principle, the Court will not entertain actions'" ICJ Reports, 1948, pp. 15,31-2; 15 AD, pp. 349,354.
170 ICJ Reports, 1994, p. 112 and ICJ Reports, 1995, p. 6; 102 ILR, pp. 1 and47. See M. Evans,'Case Concerning Maritime Delimitation and Territorial Questions Between Qatar andBahrain (Qatar v. Bahrain), Jurisdiction and Admissibility: 44 ICLQ, 1995, p. 691.
I 7 l The argument revolving around whether any application to the Court had to be by bothparties or whether unilateral application was provided for.
172 ICJ Reports, 1994, p. 121; 102 ILR, p. 18.
""CJ
Reports, 1995, pp. 9-11; 102 ILR, pp. 50-2.
'74 ICJ Reports, 1995, pp. 17 and 25; 102 ILR, pp. 58 and 66. This was disputed by four ofthe five dissenting judges, who argued that the Zubarah sovereignty issue had not been
properly laid before it, ICJ Reports, 1995, pp. 49,55 ff., 72 and 74-5; 102 ILR, pp. 90, 96
ff., 113 and 115-16.
'75 See also E. Lauterpacht, '"Partial" Judgements and the Inherent Jurisdiction of the International Court of Justice' in Lowe and Fitzmaurice, Fifty Years o f the Ir~ternatiorzalCourtof Justice, 17. 465.
176 See e.g. the Libya/Malta case, ICJ Reports, 1984, pp. 3, 24; 70 ILR, pp. 527, 553, theNicaragua case, ICJ Reports, 1984, pp. 392, 431; 76 ILR, pp. 104, 142, the El Sulvador/Honduras case, ICT Reports, 1990, pp. 92, 114-16; 97 ILR, pp. 214, 235-7, andthe Nauru case, ICJ Reports, 1992, pp. 240,259-62; 97 ILR, pp. 1 , 2 6 4 .
17' Cameroon v. hTigeria,ICJ Reports, 2002, para. 238.

976

I N T E R N A T I O N A L LAW

between states that in realityimplead a third state without its consent. This
rule was underlined in the Monetary Gold case,178where it was noted that
where the legal interests of the third party 'would form the very subjectmatter of the decision: the Court could not entertain proceedings in theabsence of that state. In the Nicaragua case, the Court noted that the circumstances of the Monetary Gold case 'probably represent the limit of thepower of the Court to refuse to exercise its j~risdiction:"~This approach
was underlined in the Nauru case, where the Court emphasised that theabsence of a request from a third party to intervene 'in no way precludes
the Court from adjudicating upon claims submitted to it, provided thatthe legal interests of the third state which may possibly be affected do notform the very subject-matter of the decision that is applied for:lsO The
test referred to was whether the determination of the third state's responsibility was a pre-requisite for the claims raised before the Court by one
party against the other.'" In the East Timorcase,18' the Court held that it
could not rule on the lawfulness of the conduct of another state which was
not a party to the case, whatever the nature of the obligations in question(i.e. even if they were erga omnes obligations as was the case with regard to
It was felt that in view of the situation,
the right to self-determinati~n).'~~
the Court would have to rule on the lawfulness of Indonesia's conduct
with regard to East Timor as a pre-requisite for deciding upon Portugal's~ that such a determination would consticlaims against ~ u s t r a l i a " andtute the very subject matter of the judgment requested and thus infringe
the Monetary Gold principle.185
Apart from those instances where states specifically refer a disputeto it, the Court may also be granted jurisdiction over disputes arisingfrom international treaties where such treaties contain a 'compromissory
clause' providing for this.ls6 In fact, quite a large number of international treaties, both bilateral and multilateral, do include a clause awarding the ICJ jurisdiction with respect to questions that might arise from the178

ICJ Reports, 1954, pp. 19, 54; 21 ILR, pp. 399, 406. In this case, Italy asked that the
governments of the UK, US and France should deliver to it any share of the monetary
gold that might be due to Albania under Part 111 of the Paris Act of 14 January 1946, as
satisfaction for alleged damage to Italy by Albania. Albania chose not to intervene in thecase.
ICJ Reports, 1984, pp. 392,431; 76 ILR, pp. 104, 142.
Ibid.
ICJ Reports, 1992, pp. 240,261; 97 ILR, p. 28.
18' Ibid.,p. 102.
lS4 Ibid.,p. 104.
18' ICJ Reports, 1995, pp. 90, 101 ff.
Ibid.,y. 105. See also L m e n v. Huwuiiun Kirzgdon~119 ILR, yp. 566, 588-92.
lS6 See also article 40 of the ICJ Statute and article 38 of the Court's Rules.

INTER- STATE COURTS AND TRIBUNALS

977

interpretation and application of the agreement^.'^' Examples of the more
important of such conventions include the 1948 Genocide Convention,
1965 Convention on Investment Disputes, the 1965 International Convention on the Elimination of all Forms of Racial Discrimination and the1970 Hague Convention on Hijacking. In the Application of the Genocide
Convention (Bosnia v. Yugoslavia) case,"' the Court founded its jurisdiction upon article 9 of the Genocide Convention. In the US Diplomaticand Consular S t a f i n Tehran case (the Iranian Hostages case),Is9the Court
founded jurisdiction upon article 1 of the Optional Protocols concerning
the Compulsory Settlement of Disputes (to which both Iran and the US
were parties), which accompany both the Vienna Convention on Diplomatic Relations, 1961 and the Vienna Convention on Consular Relations,1963. Common article 1 of the Protocol provides that disputes arisingout of the interpretation or application of the Conventions lie within thecompulsory jurisdiction of the International Court of Justice. The Court
also founded jurisdiction in the ~ i c a r a g u a ~case~ " inter alia upon a treaty
provision, article XXIV(2) of the 1956 US-Nicaragua Treaty of Friendship, Commerce and Navigation providing for submission of disputes
over the interpretation or application of the treaty to the ICJ unless theparties agree to settlement by some other specific means.
In its judgment on jurisdiction and admissibility in the Case Concerning
Border and Transborder Arnzed Actions (Nicaragua v. ~ o n d u r a s ) , ~the'~International Court emphasised that the existence of jurisdiction was aquestion of law and dependent upon the intention of the parties. The
issue of jurisdiction in the case centred, in the view of the Court, uponarticle 31 of the Pact of Bogota, 1948, which declared that the parties'[iln conformity with article 36(2) of the Statute of the International
Court of Justice.. . recognise, in relation to any other American state, theSee Rosenne, Law rzrld Practice, vol. 11, chapter 11. There are 269 such treaties, bilateraland multilateral, listed on the Court's website: see http://www.icj-cij,org/icj~~~ww/ibasicdocuments/ibasictextiibasictreatiesandotherdocshtmTo these need to be added treaties
giving such jurisdiction to the Permanent Court of International Justice: see article 37 of
the Court's Statute. See also J. Charney, 'Compromisory Clauses and the Jurisdiction of
the International Court of Justice', 81 AJIL, 1989, p. 85.
l a 8 ICJ Reports, 1996, pp. 595,615-17 on preliminary objections. See also ICJ Reports, 1993,
pp. 3 and 325; 95 ILR, pp. 18 and 43 (the two Orders on Provisional Measures).
l a 9 ICJ Reports, 1980, pp. 3, 24; 61 ILR, pp. 530,550.
'" ICJ Reports, 1984, pp. 392,426-9; 76 ILR, pp. 104, 137. See Briggs, 'Nicaragz~av.UnitedStates: Jurisdiction and Admissibility', 79 AJIL, 1985, p. 373.
'" ICJ Reports, 1988, pp. 69, 76; 84 ILR, pp. 218,231.

18'

978

I N T E R N A T I O N A L LAW

jurisdiction of the Court as compulsory ipso facto.. . in all disputes of ajuridical nature that arise among them', Objections to jurisdiction put
forward by Honduras on the grounds that article 31 was not intended tohave independent force, and was merely an encouragement to the parties
to deposit unilateral declarations of acceptance of the Court's compulsory
jurisdiction, and that article 31 would only operate after the exhaustionof conciliation procedures referred to in article 32, were rejected on thebasis of interpretation.lg2
Article 31 nowhere envisaged that the undertaking contained therein
might be amended subsequently by unilateral declaration and the reference to article 36(2) of the Statute was insufficient to have that effect,lg3
while the reference in article 32 of the Pact to a right of recourse to the International Court up on the failure of conciliation provided a second basis
for the jurisdiction of the Court and not a limitation upon the first.194
In other words, the commitment contained in article 31 of the Pact was
sufficient to enable the Court to exercise jurisdiction.
Where a treaty in force provides for reference of a matter to the PCIJ or
to a tribunal established by the League of Nations, article 37 of the Statutedeclares that such matter shall be referred to the ICJ, provided the parties
to the dispute are parties to the Statute. It is basically a bridging provisionand provides some measure of continuity between the old Permanent
Court and the new International Court.lg5Under article 36(6) of the
Statute, the Court has the competence to decide its own jurisdiction in
the event of a dispute.19'j
Article 36(2)19' This article has been of great importance in extending
the jurisdiction of the International Court. Article 36(2), the so-called'optional clause', stipulates that:
192 ICJ Reports, 1988, pp. 78-90. The decision to affirm jurisdiction and admissibility was

unanimous.

"' Ibid., pp. 85-8.

I y 4 Ibid., pp. 88-90.
e.g. the Ambatielos case (Preliminary Objections), ICJ Reports, 1952, p. 28; 19 ILR,
p. 416 and the Barcelona Traction case (Preliminary Objections), ICJ Reports, 1964,p. 6;
46 ILR, p. 18. Cf. the Aerial Incident case, ICJ Reports, 1959, p. 127; 27 ILR, p. 557.
'96 See I. Shihata, T h e Power of the International Court to Deterniine Its Otvri Jurisdiction, The
Hague, 1965. This is a characteristic of the judicial function generally: see e.g. the EffectofAtyards case, ICI Reports, 1954, pp. 47,51-2; 21 ILR, pp. 310,312, and the Nonebohnlcase, ICJ Reports, 1953, pp. 111, 119; 20 ILR, pp. 567,572. See also the Tadit case before
the Appeals Chamber of the Yugoslav War Crimes Tribunal, IT-94-1-AR72, pp. 7-9.
See e.g. Rosenne, La~vandPractice,vol.11, chapter 12. See also 1.G. Merrills, 'The Optional
Clause Today: 50 BYIL, 1979, p. 87, and Merrills, 'The Optional Clause Revisited: 64 BYIL,
under the Optional Protocol: History and
1993, p. 197; L. Gross, 'Compulsory J~~risdictioil

""ee

'"

INTER- STATE COURTS AND TRIBUNALS

979

The states parties to the present Statute may at any time declare that theyrecognise as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of
the Court in all legal disputes concerning:(a) the interpretation of a treaty;(b) any question of international law;(c) the existence of any fact which, if established, ~ v o u l dconstitute a breachof an international obligation;( d ) the nature or extent of the reparation to be made for the breach of a n
international obligation.

This provision was intended to operate as a method of increasing the
Court's jurisdiction, by the gradual increase in its acceptance by more andmore states. By the end of 1984, forty-seven declarations were in force anddeposited with the UN Secretary-General, comprising less than one-thirdof the parties to the ICJ Statute. By the end of 2002, this number had risen
to sixty-three.lg8 Since 1951, twelve other declarations have expired or
been terminated without renewal.lg9
The Court discussed the nature of such declarations in the Cameroon v.
Nigeria (Preliminary Objections) case and stated that,
Any state party to the Statute, in adhering to the jurisdiction ofthe Court inaccordance with article 36, paragraph 2, accepts jurisdiction in its relations
with states previously having adhered to that clause. At the same time, it
makes a standing offer to the other states parties to the Statute which have
not yet deposited a declaration of acceptance. The day one of those states
accepts that offer by depositing in its turn its declaration of acceptance,
the consensual bond is established and n o further condition needs to be
met.'00

Declarations pursuant to article 36(2) are in the majority of cases conditional and, as noted, are dependent upon reciprocity for operation.
This means that the Court will only have jurisdiction under article 36(2)where the declarations of the two parties in dispute meet. The doctrine
Practice' in Damrosch, blternatiorlal Court o f Justice at a Crossroads, 17. 19; E. Gordon,"'Legal Disputes" Under Article 36(2) of the Statute', ibid., p. 183; M . Vogiatzi, 'The
Historical Evolution of the Optional Clause', 2 Non-State Actors and hiterrlational Latv,
2002, p. 41, and M. Fitzmaurice, 'The Optional Clause System and the Law of Treaties',
20 Australian YIL, 2000, p. 127.
'" See http://www,icj-cij.orgiicjwwiibasicdocuments/ibasictext/ibasicdeclarations.htm.
lYy International Court of rustice, Yearbook 1993-4, The Hague, 1994, p. 82.
ICJ Reports, 1998, pp. 275,291.

980

I N T E R N A T I O N A L LAWof the lowest common denominator thus operates since the acceptance,by means of the optional clause, by one state of the jurisdiction of the
Court is in relation to any other state accepting the same obligation. It
is not that declarations in identical terms from the parties are necessary,
but both declarations must grant jurisdiction to the Court regarding the
dispute in question.
In practice, this can lead to the situation where one party may rely
on a condition, or reservation, expressed in the declaration of the otherparty. This occurred in the Norwegian Loans case,20' between France andNorway. The Court noted that:since two unilateral declarations are involved, such jurisdiction is conferred
upon the Court only to the extent to which the declarations coincide in
conferring it. A comparison between the two declarations sho~vsthat the
French declaration accepts the Court's jurisdiction within narrower limits
than the Norwegian declaration; consequently, the common will of theparties, which is the basis of the Court's jurisdiction, exists within thesenarroxver limits indicated by the French reservation.")'Accordingly, Norway was entitled to invoke the French reservation todefeat the jurisdiction of the Court. However, much will depend upon
the precise terms of the declarations. Declarations made under the optional clause in the Statute of the PC11 and still in force are deemed tocontinue with respect to the I C J , ~ but' ~ in the Aerial Incident case204between Israel and Bulgaria, the Court declared that this in fact only applied
to states signing the ICJ Statute in 1945 and did not relate to states, like
Bulgaria, which became a party to the Statute many years later as a resultof admission to the United Nations.
The issue also arose in the jurisdictional phase of the Nicaragua case.205
Nicaragua had declared that it would accept the compulsory jurisdictionof the Permanent Court in 1929 but had not ratified this. The US argued that accordingly Nicaragua never became a party to the Statute of
the Permanent Court and could not therefore rely on article 36(5). The
Court, in an interesting judgment, noted that the Nicaraguan declaration,
unconditional and unlimited as to time, had 'a certain potential effect'"' ICJ Reports, 1957, p. 9; 24 ILR, p. 782.
ICJ Reports, 1957, p. 23; 24 ILR, p. 786. But note Judge Lauterpacht's individual opinion,
ICJ Reports, 1957, p. 34; 24 ILR, p. 793. See also the Rtgllt of Pasage case, ICJ Reports,
1957, pp. 125, 145; 24 ILR, pp. 840,845 and the Interhandel case, ICJ Reports, 1959, pp.
6, 23; 27 ILR, pp. 475,487.
'03 Artlcle 36(5),Statute of the ICJ.
20"CJ Reports, 1959, p. 127; 27 ILR, p. 557.
'05 ICJ Reports, 1984, pp. 392,403-12; 76 ILR, pp. 104, 114.
202

INTER- STATE COURTS AND TRIBUNALS

9s1

and that the phrase in article 36(5) 'still in force' could be so interpreted
as to cover declarations which had only potential and not binding effect.
Ratification of the Statute of the ICJ in 1945 by Nicaragua had the effect, argued the Court, of transforming this potential commitment into
an effective one.206Since this was so, Nicaragua could rely on the US
declaration of 1946 accepting the Court's compulsory jurisdiction as thenecessary reciprocal element.207
The reservations that have been made in declarations by states under
the optional clause, restricting the jurisdiction of the ICJ, vary a great
deal from state to state, and are usually an attempt to prevent the Court
becoming involved in a dispute which is felt to concern vital interests.
One condition made by a number of states, particularly the United Statesof America, stipulates that matters within the domestic jurisdiction 'as
determined by' that particular state are automatically excluded from thepurview of the
The validity of this type of reservation (known
as the 'Connally amendment' from the American initiator of the relevant
legislation) has been widely questioned,209particularly since it appears
to contradict the power of the Court under article 36(6) to determine its
own jurisdiction, and in reality it withdraws from the Court the jurisdiction conferred under the declaration itself. Indeed, it is a well-establishedprinciple of international law that the definition of domestic jurisdiction
is an issue of international and not domestic law."'
Many reservations relate to requirements of time (ratione ternpori~),~ll
according to which acceptances ofjurisdiction are deemed to expire automatically after a certain period or within a particular time after notice of?'"heCourt also noted that since Court publications had placed Nicaragua on the list of
jurisdiction ofthe ICJ byvirtue of article 36(5) andthat nostates acceptingthe comp~~lsory
states had objected, one could conclude that the above interpretation had been confirmed,
ibid. The Comt also regarded the conduct of the parties as reflecting acquiescence inNicaragua's obligations when article 36(5) was argued, ICJ Reports, 1984, pp. 411-15; 76
ILR, p. 122.
'07 But see the Separate Opinions of Judges Mosler, ICJ Reports, 1984, pp. 461-3; Oda, ibid.,
pp. 473-89; Ago, ibid., pp. 517-27 and Jennings, ibid., pp. 533-45, and the Dissenting
Opinion of Judge Schwebel, ibid., pp. 562-600; 76 ILR, pp. 172, 184,228, 244 and 273.
See Rosenne, Law and Practice, vol. 11, pp. 778-82.
'09 See e.g. L. Henkin, 'The Connally Reservation Revisited and, Hopefully, Contained: 65
ATIL, 1971, p. 374, and Preuss, 'The International Court of Justice, the Senate and Mattersof Domestic Jurisdiction', 40 AJIL, 1946, 17. 720. See also Judge Lauterpacht, Nortvegian
Loans case, ICT Reports, 1957, pp. 9,43-66; 24 ILR, pp. 782,800; the Intcrhandel case, ICT
Reports, 1959, pp. 6,77-8 and 93; 27 ILR, pp. 475,524,534, and A. D'Amato, 'Modifying
US Acceptance of the Compulsory Turisdiction of theTt70rld Court: 79 ATIL, 1985, p. 385.
"O See above, chapter 12, p. 575.
'I1 See Rosenne, Law and Practice, vol. 11, pp. 782 ff., and Merrills, 'Revisited: pp. 213 ff.

9 82

I N T E R N A T I O N A L LAW

termination has been given to the UN Secretary-General. Some states exclude the jurisdiction of the ICJ with respect to disputes arising before orafter a certain date in their declaration^.^'^ Reservations rationepersonae
may also be made, for example the UK reservation concerning disputes between member states of the British C~mmonwealth.~'%eservationsmay
also be made rutione muteriae, excluding disputes where other means ofdispute settlement have been
Other restrictive grounds
However, once the Court is dealing with a dispute, any subsequent expiry
or termination of a party's declaration will not modify the jurisdiction of
the case.216
A state may withdraw or modify its d e ~ l a r a t i o n .The
~ ' ~ US declarationof 1946 provided for termination after a six-month period of notice.
What the Court in the jurisdictional phase of the Nicaragua case2I8had todecide was whether a modifying notification2I9expressly deemed to apply
immediately could have effect over the original declaration. It decided thatthe six-month notice provision remained valid and could be invoked byNicaragua against the US, since it was an undertaking that constituted an
integral part of the instrument that contained it.

"'Rosenne, Law and Practice, vol. 11,p. 785. The UK, for example, excluded disputes arisingout of events occurring between 3 September 1939 and 2 September 1945 in its 1963
declaration, Cmnd 2248. This was altered in the 1969 declaration, which is expressed toapply only to disputes arising after 24 October 1945, Cinild 3872.
"'? See Merrills, 'Revisited', pp. 219 ff.
214
Ibid., pp. 224 ff. See the N a z r ~ xcase, ICJ Reports, 1992, pp. 240, 245-7; 97 ILR, pp. 1,
12-14. The Court emphasised that declarations made under article 36(2) related only todisputes bet~veenstates and did not therefore cover disputes arising out of a trusteeshipand the indigenous population, ibid.
agreement between the Administering A~~thority
See also the Guinea-Bissau/Senegal case, ICJ Reports, 1990, p. 64 and ibid., 1991, p. 54;
92 ILR, pp. 1 and 30.
See e.g. reservations relating to territorial matters, hlerrills, 'Revisited: pp. 234 ff.
"6 See e.g. the Nottebohm case, ICJ Reports, 1953, p. 111; 20 ILR, p. 567. See also Judge
Shahabuddeen's Separate Opinion, the Request for an Examination o f the Situation in the
Nuclear Tests Case case, ICJ Reports, 1995, pp. 288, 315.
See e.g. Rosenne, Law and Practice, vol. 11, p. 815. A state may waive its jurisdictional
reservation, but this must be done unequivocally, Application for Revision and Interpretation o f t h e Jtldgrnent in the Tunisia/Libya Case, ICT Reports, 1985, pp. 192,216; 81 ILR,
p p 419,449, and the Nicaragua case, ICJ Reports, 1986, pp. 33; 76 ILR, pp. 349, 367.
ICJ Reports, 1984, pp. 392,415-21; 76 ILR, p. 126.
219 Excluding disputes related to Central America for a two-year period. See e.g. A. Chayes,'Nicaragua, the United States and the World Court: 85 Colurrzbia Law Review, 1985, p.
1445; K. Highet, 'Litigation Implications of the US 11Sthdrawalfrom the ,Vicaragua case:
79 AJIL, 1985, p. 992, and US Department of State Statement on the US Withdrawal fromthe Proceedings Initiated by Nicaragua in the International Court of Justice, 22 ILM,
1985, p. 246.

"'"'

INTER- STATE COURTS AND TRIBUNALS

9 83

Sources of law, propriety and legal interest In its deliberations, theCourt will apply the rules of international law as laid down in article
38 (treaties, custom, general principles of law).220However, the Court
may decide a case ex uequo et boizo, i.e. on the basis of justice and equity untrammelled by technical legal rules.22' This has not yet occurred,
although it should not be confused with the ability of the ICJ to apply
certain equitable considerations in a case within the framework of international law.222The question of gaps in international law in addressing acase arose in the Advisory Opinion concerning The Legality of the Threator Use ofNuclear
Although not a contentious case and therefore not as such binding, the fact that the Court was unable to give its viewon a crucial issue in international law may have ramifications. The Court
took the view that it could not 'conclude definitively whether the threator use of nuclear weapons would be lawful or unlawful in an extreme
circumstance of self-defence, in which the very survival of a state would
be at stake'.224This appearance of a non-liquet is of some concern as amatter of principle, unconnected with the substance of the legal principle
in question.225
Before dealing with the merits of a case, the Court may have to deal
with preliminary objections as to its jurisdiction or as to the admissibilityof the application.226Preliminary objections must be made within threemonths after the delivery of the Memorial of the applicant state.'27 The
Court has emphasised that objections to jurisdiction require decision at
the preliminary stage of the proceedings.228A decision on preliminary'" See further above, chapter 3, p. 66. Note that the Court may be specifically requestedby the parties to consider particular factors. In the Tunisicz/Libya case, ICJ Reports, 1982,
pp. 18, 21; 67 ILR, pp. 3, 14, the cofflprornisspecifically asked the Court to take into
account 'the recent trends admitted at the Third Conference on the Law of the Sea:'I
See above, chapter 3, p. 99.
2"
See e.g. above, chapter 11, p. 101.
""CJ
Reports, 1966, p. 226.
'24 ICJ Reports, pp. 226,263 and 266. This is the subject of a strong rebuttal by Judge Higgins
in her Dissenting Opinion, ibid., pp. 583, 584 ff.
225 See above, chapter 3, p. 93.
226 'Or other objection', with regard to which a decision is requested before consideration of
the merits: see article 79 of the Rules of Court 1978.
Prior to the amendment of article 79 adopted in December 2000, such objections could
have been made within the time limit fixed for the delivery of the Counter-Memorial(usually six or nine months). See e.g. Cameroorl v. Nigeria (Prelinzinary Objectiorls),ICT
Reports, 1998, p. 275. See also S. Rosenne, 'The International Court of Justice: Revisionof Articles 79 and 80 of the Rules of Court: 14 Leiden Journal ofInternationa1 Laiv, 2001,
p. 77.
228 The Nicaragua case, ICJ Reports, 1986, pp. 3, 30-1; 76 ILR, pp. 349, 364-5.

'"

984

I N T E R N A T I O N A L LAW

objections to jurisdiction cannot determine merits issues, even wheredealt with in connection with preliminary objections. Such reference canonly be provisional.229Where it has established its right to exercise jurisdiction, the Court may well decline to exercise that right on grounds ofpropriety. In the Northern Cameroons case,2" the Court declared that:it may pronounce judgment only in connection with concrete cases where
there exists, at the time of adjudication, an actual controversy involving a
conflict of legal interests hetween the parties. The Court's judgment musthave some practical consequence in the sense that it can affect existing legal
rights or obligations of the parties, thus removing uncertainty from theirlegal relations.

Further, events subsequent to the filing of the application may render theapplication without object, so that the Court is not required to give adecision.231
In addition, and following the South West Africa cases (Second Phase)in 1966,~"it may be necessary for the Court to establish that the claimant
state has a legal interest in the subject matter of the dispute. The factthat political considerations may have motivated the application is not
relevant, so long as a legal dispute is in evidence. Similarly, the fact that a
particular dispute has other important aspects is not of itself sufficient torender the application inadmissible.233
Evidence Unlike domestic courts, the International Court is flexible
with regard to the introduction of evidence.234Strict rules of admissibility"'See the South-West Africa cases, ICJ Reports, 1966, pp. 3,37; 37 ILII, pp. 243, 270. It is tobe noted that admissibility issues may be discussed at the merits stage: see e.g, the East
Tirnor case, ICJ Reports, 1995, p. 90; 105 ILII, p. 226. See also C. M. Chinkin, 'East Timor
Moves into the \\'orld Court', 4 EJIL, 1993, p. 206.
230 ICJ Reports, 1963, pp. 15, 33-4; 35 ILR, pp. 353,369.
See e.g. the Arnzed Actions (&'icarugtla v. Honduras) case, ICJ Reports, 1988, pp. 69, 95;
84 ILR, p. 218; the Nuclerzr Tests case, ICJ Reports, 1974, pp. 253, 272; 57 ILR, p. 348;
the Lockerbie (Preliminary Objections) case, ICJ Reports, 1998, pp. 9, 26 and Congo v.
Relgiunl, ICJ Reports, 2002, para. 32.
See above, p. 967.
ICJ Reports, 1966, p. 6; 37 ILR, p. 243.
234 See e.g. K. Highet, 'Evidence and Proof of Facts' in Damrosch, Iilterilutionnl Court of
Jtlstice at a Crossroads, pp. 355, 357. See also D. V. Sandifer, Evidence before Inter~zational
Tribunals, Charlottesville, 1975; S. Sch~vebel,Justice in Irzterrzutioizal Law, Cambridge,
1994, p. 125; K. Highet, 'Evidence, the Court and the Nicaragzia Case', 81 AJIL, 1987,
p. 1; M. Kazazi, Burden ofProofund Reluted Issues, The Hague, 1996, and T. M. Franck,
Fairness in International Law and Institutions, Oxford, 1995, pp. 335 ff.
"I'"INTER- STATE COURTS AND TRIBUNALS

985

common in domestic legal systems do not exist here.235The Court has
the competence inter alia to determine the existence of any fact which if
established would constitute a breach of an international ~bligation.~"It
may make all arrangements with regard to the taking of evidence,237callupon the agents to produce any document or to supply any explanations
as may be required,238or at any time establish an inquiry mechanism or
obtain expert opinion.239The Court may indeed make on-site visits."'
However, it has no power to compel production of evidence generally, nor
may witnesses be subpoenaed, nor is there is any equivalent to proceedings for contempt of
The use of experts has been comparatively
rare2" as has been recourse to witnesses.243Agents are rarely asked to
produce documents or supply explanations andthere have been only two
on-site visits to date.244This has meant that the Court has soughttoevaluate claims primarily upon an assessment of the documentary evidence provided, utilising also legal techniques such as inferences andadmissions againstinterest.245In addition, the Court has felt able to takejudicial notice of facts which are public knowledge, primarily throughmedia dissemination, provided that caution was shown and that the reports did not emanate from a single source.246The Court is prepared to
President Schwebel in his address to the UN General Assembly on 27 October 1997
noted that the Court's 'attitude to evidence is demonstrably flexible': see 11ttp:llwww.icjcij.orglicjw~1.viipresscomisPEECHESlGal997e.htm
See e.g, the introduction of illegallyobtained evidence in the Corfu Channel case, ICJ Reports, 1949, pp. 4, 32-6; 16 AD, p.
155.
" 6 Article 36 ofthe Statute.
237 Article 48 ofthe Statute.
238 Article 49 ofthe Statute.
Article 50 of the Statute. By article 43(5), the Court may hear witnesses and experts, a5well as agents, counsel and advocates.
'40 Article 44(2) of the Statute and article 66 of the Rules of Court.
"I
See K. Highet, 'Evidence, the Court and the Nicaragua Case', p. 10.
24' Uut see the Corfu Cllarlnel case, ICJ Reports, 1949, p. 4; 16 AD, p. 155.
"Qut
see ibid., and the Ernisia/Libyu case, ICJ Reports, 1989, p. 18; 67 ILR, p. 4; the
Libya/Malta case, ICJ Reports, 1985, p. 13; 81 ILR, p. 238, and the Nicaragua case, ICJ
Reports, 1986, p. 14; 76 ILR, p. 349.
244 First, in the Diversion ofthe River Meuse case, PCIJ, Series AIR, No. 70, and secondly in
the GabCikovo-Nagynlaros Project case, ICJ Communique No. 9713,17 February 1997 andsee ICJ Reports, 1997, pp. 7, 14; 116 ILR, p. 1.
245
See e.g. the Iranian Hostages case, ICJ Reports, 1980, pp. 3, 9; 61 ILR, pp. 530, 535. See
also F. A. Mann, 'Foreign Investment in the International Court of Justice: The ELSICase',
86 AJIL, 1992, pp. 92, 94-5, and the El SalvndorlHonduras case, ICJ Reports, 1992, pp.
351, 574; 97 ILR, pp. 112,490. Note in particular the Nicaragl~acase, ICJ Reports, 1986,
p. 14; 76 ILR, p. 349. The difficulties of proving facts in this case were exacerbated by theabsence of the respondent state during the proceedings on the merits.
246 The Nicaragua case, ICJ Reports, 1986, p. 14,41; 76 ILR, p. 349.
2'5

"'

986

I N T E R N A T I O N A L LAW

attach particular probative value to statements from high-ranking official
political figures 'when they acknowledge facts or conduct unfavourable
to the state represented by the person making them'.247The actual standard of proof required will vary with the character of the particular issue
of fact.2" The Court has noted that a judgment would be limited to'upholding such submissions of the parties as have been supported bysufficient proof of relevant facts' and the burden of proof lies upon theparty seeking to assert a particular fact or facts.249The Court has also
stated that there was no burden of proof to be discharged in the matter ofj u r i ~ d i c t i o n . ~On~ ' the other hand, the burden of proof, and a relatively
high one, lies upon the applicant state who wishes to intervene. Suchstate 'must demonstrate convincingly what it asserts, and thus.. . bear
the burden of proof', although it need only show that its interest may
be affected, not that it will or must be so affected. It must identify theinterest of a legal nature in question and show how that interest may beaffected.251
Evidence which has been illegally or improperly acquired may also
be taken into account, although no doubt where this happens its proIn the second provisional
bative value would be adjusted a~cordingly.~'~'47

Ibid. The inaniler in which such statements become public is also a relevant factor, ibid.

'" Judge Shahabuddeen's Dissenting Opinion in the Qatar v. Bahrain case, ICJ Reports,
1995, pp. 6,63; 102 ILR, pp. 1, 104.
see e.g. the Nicaragua (Jurisdiction andddmissibility)case, ICJ Reports, 1984, pp. 392,437;
76 ILR, p. 1 and the Fisheries Jc~risdicfion(Spizin v. Canada) case, ICJ Reports, 1998, pp.
432,450. Note also the view taken by the Arbitral Tribunal for Dispute over Inter-Entity
Boundary in Brcko Area in its A~vardof 14 February 1997. The Appendix to the Order
lays down the Principles Applicable to the Admissibility of Evidence and notes inter aliathat each party bears the burden of proving its own case and, in particular, facts allegedby it. The party having the burden of proof must not only bring evidence in support of its
allegations, but must also convince the Tribunal of their truth. The Tribunal is not boundto adhere to strict judicial rules of evidence, the probative force of evidence being for the
Tribunal to determine. Where proof of a fact presents extreme difficulty, the Tribunal
may be satisfied with less conclusive, i.e. priina facie, evidence, see: 36 ILM, 1997, pp. 396,
402-3.
'jOSee the Fisheries Jurisdiction (Spain v. Canada) case, ICJ Reports, 1998, pp. 432,450.
El Salvador/Honduras (Intervention), ICJ Reports, 1990, pp. 92, 117-18; 97 ILR, pp. 112,238-9 and IndonesialMulaysia (Intervention), ICJ Reports, 2001, para. 29. As to thirdparty intervention, see below, p. 991.
'j2 See e.p. the Corfu Channel case, ICJ Reports, 1949, pp. 4, 32-6; 16 AD, p. 155. See
also H. Thirlway, 'Dilemma or Chimera? Admissibility of Illegally Obtained Evidencein International Adjudication', 78 AJIL, 1984, p. 622, and G. Marston, 'Falsification ofDocumentary Evidence Before International Tribunals: An Aspect of the Behring Sea
Arbitration, 1892-3; 71 BYIL, 2000, p. 357. See also the difficulties in the Qatar v.
Bahrain case, International Court of Justice, Order of 17 February 1999.
"9'"

INTER- STATE COURTS AND TRIBUNALS

987

measures order in the Application of the Genocide Convention (Bosnia v.
Yugoslavia) case, for example,the Court was prepared to admit a series of
documents even though submitted on the eve of and during the oral hearings despite being 'difficult to reconcile with an orderly progress of theprocedure before the Court, and with respect for the principle of equality
ofthe partie~'.~'"n dealing with questions of evidence, the Court proceeds
upon the basis that its decision will be based upon the facts occurring up
to the close of the oral proceedings on the merits of the case.25"
In so far as the scope of the Court's decision is concerned, it was notedin the Nicaragua case that the Court 'is bound to confine its decision to
those points of law which are essential to the settlement of the dispute
before it'.255In so doing, the Court will seek to ascertain 'the true subject ofthe dispute' taking i n t i consideration the submissions, the applications,oral arguments and other documents placed before it.256
Provisional measuresz5' Under article 41 of the Statute, the Court has
the power to indicate, if it considers that circumstances so require, any
provisional (or interim) measures which ought to be taken to preserve therespective rights of either party. In deciding upon a request for provisional
measures, the Court need not finally satisfy itself that it has jurisdiction
on the merits of the case, although it has held that it ought not to indicate"' ICJ Reports, 1993, pp. 325, 336-7. Article 56 of the Rules provides that after the closureof written proceedings, no further documents may be submitted to the Court by either
party except with the consent of the other party or, in the absence of consent, where the
Court, after hearing the parties, authorises production where it is felt that the documents
are necessary.
254 The Nicaragua case, ICJ Reports, 1986, pp. 3, 39; 76 ILR, pp. 349, 373. Although notethat in the Lockerbie case, ICJ Reports, 1992, pp. 3, 13; 94 ILR, pp. 478, 496, the Court
referred in detail to Security Council resolution 748 (1992) adopted three days after theclose of the oral hearings.
ICJ Reports, 1986, pp. 3, 110; 76 ILR, pp. 349,444.
The Nuclear Tests case, ICJ Reports, 1974, pp. 466-7.
See e.g. Rosenne, Latv a ~ l dPractice, vol. 111, chapter 24; S. Oda, 'Provisional Measures' inLowe and Fitzmaurice, Ftfty Years uf the International Court of Justice, p. 541; B. Oxman,'Jurisdiction and the Power to Indicate Provisional Measures' in Damrosch, Irlternational
Court of Justice at a Crossroads, p. 323; C. Gray, Judicial Remedies in International Lau:
Oxford, 1987, pp. 69-74; Elias, Irlterrlatiorial Court, chapter 3; J.G. Merrills, 'Interim
Measures of Protection and the Substantive Jurisdiction of the International Court', 36
Carrthridge Law Journal, 1977, 17. 86, and Merrills, 'Reflections on the Incidental Jurisdiction of the International Court of Justice' in Rernedies in International Law (ed. M .
Evans), Oxford, 1998, p. 51; L. Gross, 'The Case Concerning United States Diplomaticand Consular Staff in Tehran: Phase of Provisional Measures: 74 AJIL, 1980, p. 395, and
M. Mendelson, 'Interim Measures of Protection in Cases of Contested Jurisdiction', 46
e sCourt, 1978.
BYIL, 1972-3, p. 259. See also articles 73-8 of the R ~ ~ lof

'"
'"
'"

988

I N T E R N A T I O N A L LAW

such measures unless the provisions invoked by the applicant appear
prima facie to afford a basis upon which the jurisdiction of the Court" purpose of exercising the power is to protect
might be f ~ u n d e d . ~The
'rights which are the subject of dispute in judicial p r ~ c e e d i n ~ s ' ~and"thus the measures must be such that once the dispute over those rights
has been resolved by the Court's judgment on the merits, they would nolonger be required.2h0These are awarded to assist the Court to ensure
the integrity of the proceedings. Such interim measures were granted by
the Court in the Fisheries Jurisdiction case,'61 to protect British fishingrights in Icelandic-claimed waters, and again in the Nuclear Tests case.262
In the Fisheries Jurisdiction case, the Court emphasised that article 41
presupposes 'that irreparable prejudice should not be caused to rights
which are the subject of dispute in judicial proceeding^'.^^' However, it wasnoted in the ~ o c k e r b i casee 2" that the measures requested by Libya 'would
be likely to impair the rights which appear prima facie to be enjoyed by
the United Kingdom by virtue of Security Council resolution 748 (1992)'.
7

-

-'"ee

e.g. the request for the indication ofprovisional measures in the Legality of Use ofForce(B~goslaviav. Belgiuni) case, ICJ Reports, 1999, pp. 124, 132 and the the Arbitral Awardv. Senegal) case, ICJ Reports, 1990, pp. 64,68. See also theof31 July 1989 (Guinea-Bissa~~
Great Belt case, ICJ Reports, 1991, pp. 12, 15; 94 ILR, pp. 446, 453, where jurisdiction
Mias not at issue and Cameroon v. Nigeria, ICJ Reports, 1996, pp. 13, 21, where it was.
The Court in Application of the Genocide Corivention (Bosnia v. Yugoslavia), ICJ Reports,

1993, pp. 3, 12; 95 ILR, pp. 1, 27, declared that jurisdiction included both jurisdiction
rationepersonae and r~ztiorlemateriae. Note that Jimenez de Arechega, a former Presidentof the Court, has written that 'interim measures will not be granted unless a majority ofjudges believes at the time that there will be jurisdiction over the merits: 'International
Law in the Past Third of a Century', 159 HR, 1978 I, pp. 1, 161.
"9 The Aegean Sea Continental Shelfcase, ICJ Reports, 1976, pp. 3, 9; 60 ILR, pp. 524, 530
and the Iran Hostages case, ICJ Reports, 1979, pp. 7, 19; 61 ILR, pp. 513,525. See also the
Arbitral Award o f 31 July 1989 case, ICJ Reports, 1990, pp. 64, 69; 92 ILR, pp. 9, 14.
'60 Arbitral Award of 31 July 1989 case, ICJ Reports, 1990, p. 69; 92 ILR, pp. 9, 14.
ICJ Reports, 1972, p. 12; 55 ILR, p. 160. See also the Anglo-Imnian Oil Co. case, ICJ
Reports, 1951, p. 89; 19 ILR, p. 501.
16' ICJ Reports, 1973, p. 99; 57 ILR, p. 360. They were also granted in the Iranian Hostages
case, ICJ Reports, 1979, pp. 7, 19; 61 ILR, pp. 513, 525 and in the Nicaragt~acase, ICJ
Reports, 1980, p. 169; 76 ILR, p. 35. See also the Great Belt case, ICJ Reports, 1991, p. 12;
94 ILR, p. 446, Application of the Genocide Corlvention (Bosnia v. Yugoslavia), ICJ Reports,
1993, pp. 3 and 325; 95 ILR, p. 1, and the Cameroon v. Nigeria case, ICJ Reports, 1996,
p. 13. See also the LaGrarid case, ICJ Reports, 1999,p. 9.
ICJ Reports, 1972, pp. 12, 16, 30, 34; 55 ILR, pp. 160, 164; 56 ILR, pp. 76, 80. See also
the Iran Hostages case, ICJ Reports, 1979, pp. 7, 19; 61 ILR, p. 525, Application of the
Genocide Convention (Bosnia v. B~goslavia),ICJ Reports, 1993, pp. 3, 19; 95 ILR, pp. 1,
34 and Cameroon r. Nigeria, ICJ Reports, 1996, pp. 13, 21-2.
264 ICJ Reports, 1992, pp. 3, 15; 95 ILR, pp. 478,498.

'"

INTER- STATE COURTS AND TRIBUNALS

989

The Court has also stated that provisional measures are only justified if
there is urgency.265
Provisional measures may also be indicated by the Court, independently of requests by the parties, with aview to preventing 'the aggravation
or extension of the dispute whenever it considers that circumstances sorequire'.266In Cameroon v. Nigeria, the Court referred explicitly not only
to the rights of each party, but also by calling on the parties to observean agreement reached for cessation of hostilities, to take all necessary
steps to preserve relevant evidence in the disputed area and to co-operatewith a proposed UN fact-finding mission.267The Court also took care tolink with the rights of the parties that were being protected the danger topersons within the disputed area.268
The question of the legal effects of orders indicating provisional measures was discussed and decided by the Court for the first time in the
LaGvand case. The Court addressed the issue in the light of the object andpurpose of the statute x 9 which was to enable it to fulfil its functions andin particular to reach binding decisions. The Court declared that,
The context in which article 41 has to be seen within the Statute is toprevent the Court from being hampered in the exercise of its fuilctions
because the respective rights of the parties to a dispute before the Court
are not preserved. It follows from the object and purpose of the Statute,as well as from the terms of article 41 when read in this context, that thepower to indicate provisional measures entails that such measures should
be binding, inasmuch as the poTver in question is based o n the necessity,
when the circumstances call for it, to safeguard, and to avoid prejudice
to, the right of the parties as determined by the final judgment of the
Court. The contention that provisional measures indicated under article
41 might not be binding would be contrary to the object and purpose ofthat
article.'"'" See the Great Belt case, ICJ Reports, 1991, pp. 12, 17; 94 ILR, pp. 446, 455, where there
was held to be no such urgency, and the Cafflerooflv. Nigeria, ICJ Reports, 1996, pp. 13,
22, wllere there was held to be such urgency. See also Congo v. France, order of 17 June
2003, para. 35.
Cawleroon v. Nigeria, ICJ Reports, 1996, pp. 13,23. See also the Burkina FaxoIMali case,
ICJ Reports, 1986, pp. 3, 9; 80 ILR, pp. 440, 456.
267 See the dispositlf, ICJ Reports, 1996, pp. 13, 24-5.
Ibid., p. 23.
269 Referring to article 33(4) of the Vienna Convention on the Law of Treaties, 1969, which
the Court noted reflected customary law, ICJ Reports, 2001, para. 101.
270 Ibid., para. 102. The Court also referred to a related reason, the principle that parties toa case must abstain from any measure capable of exercising a prejudicial effect regarding
the execution of the decision to be given and not to allow any step to be taken which might
aggravate or extend the dispute, citing the Electricity Company of Sofia andBulgaria, PCIJ,

990

I N T E R N A T I O N A L LAW

This clear and unanimous decision that provisional measures orders arebinding is likely to have a significant impact.
counter-~1airn.s~~'
Article 80 of the Rules of Court provides that the
Court may entertain a counter-claim only if it comes within the jurisdiction of the Court and 'is directly connected with the subject-matter of theclaim of the other party'.27' A counter-claim constitutes a separate claim,
or 'autonomous legal act', while requiring to be linked to the principal
claim.2731t goes beyond a mere defence on the merits to the principal
claim, but cannot be used as a means of referring to a court claims which
exceed the limits of its jurisdiction as recognised by the parties.274The
Rule does not define what is meant by direct connection and this is amatter for the discretion of the Court, which has noted that 'the degree ofconnection between the claims must be assessed both in fact and in law'.275
The direct connection of facts has been referred to in terms of 'facts ofthe same nature. . . [that] form part of the same factual
whilein the Application of the Genocide Convention case the direct connectionof law appeared in that both parties sought the same legal aim, being
the establishment of legal responsibility for violations of the Genocide

onv vent ion.^'^Series AIB, No. 79, p. 199, ibid., para. 103. The Court also noted that the preparatory
work leading to the adoption of article 41 did not preclude the conclusion that orders
under that article have binding force, ibid., paras. 104-9.
"l
See e.g. Rosenne, Law and Practice, ~~11.111,
p. 1272, and Rosenne, 'Counter-Claims in theInterilatioilal Court of Justice Revisited' in Liber Amicorum Judge Ruda (eds. C. A. Armas
et al.), The Hague, 2000, p. 457.
'7' As revised in 2000. One major difference from the text of the previous ltule 80 is toemphasise the role of the Court. See Rosenne, 'Revision', p. 83. The Rule also provides
that 'a counter-claim shall be made in the Counter-Memorial and shall appear as partof the submissions contained therein. The right of the other party to present its views in
writing on the counter-claim, in an additional pleading, shall be preserved, irrespectiveof any decision of the Court, in accordance with Article 45, paragraph 2, of these Rules,
concerning the filing of further written pleadings.'
27' Application of tlze Genocide Convention (Counter-Claims), ICJ Reports, 1997, pp. 243,256.
274 Ibid., p. 257.
275 Ibid., p. 258. See also the Oil Platforrns (Counter-Claims) case, ICJ Reports, 1998, pp. 190,
204-4.
276 See Application of the Genocide Convention (Cotlizter-Claims), ICJ Reports, 1997, pp. 243,
258 and Can~erooizv. Nigeria, International Court of Justice, Order of 30 June 1999.
277 Application ofthe Genocide Convelztion (Co~~nter-Claims),
ICJ Reports, 1997, pp. 243,258.
In Canzeroon v. Nigeria, the 'same legal aim' was the establishment of legal responsibility
for frontier incidents, Iilternational Court of Justice, Order of 30 June 1999.

INTER- STATE COURTS AND TRIBUNALS

99l

Third-party intervention278 There is no general right of intervention
in cases before the Court by third parties as such, nor any procedure forjoinder of new parties by the Court itself, nor any power by which the
Court can direct that third states be made a party to proceedings.279However, under article 62 of the Statute of the ICJ, any state which considers
that it has an interest of a legal nature which may be affected by the decision in a case, may submit a request to be permitted to intervene,280while
under article 63, where the construction of a convention to which statesother than those concerned in the case are parties is in question,28' theregistrar of the Court shall notify all such states forthwith. Every state so
notified has the right to intervene in the proceedings.282
Essentially, the Court may permit an intervention by a third party eventhough it be opposed by one or both ofthe parties to the case. The purposeof such intervention is carefully circumscribed and closely defined in terms
ofthe protection of a state's interest of a legal nature which may be affectedby a decision in an existing case, and accordingly intervention cannot be
used as a substitute for contentious proceedings, which are based uponconsent. Thus the intervener does not as such become a party to thecase.283
The Court appeared to have set a fairly high threshold of permitted
intervention. In the Nuclear Tests case,284Fiji sought to intervene in thedispute between France on the one hand and ~ew-zealandand Australia''' See e.g. Rosenne, Law and Practice, vol. 111, chapter 26, and Rosenile, Intervention in
the International Court oflustice, Dordrecht, 1993; J .M. Ruda, 'Intervention Before theInternational Court of Justice' in Lowe and Fitzmaurice, Fifty Years of the International
Court offustice, p. 487; C. M. Chinkin, 'Third Party Intervention Before the International
Court of Justice: 80 AJIL, 1986, p. 495; Elias, International Court, chapter 4 , and f! Jessup,'Intervention in the International Court', 75 AJIL, 1981, p. 903. See also articles 81-6 ofthe Ilules of Court, 1978.
279
See the Libya/Maltu case, ICJ Reports, 1984, p. 25; 70 ILR, p. 527, and the hTicaragun case,
ICJ Reports, 1984, p. 431; 76 ILR, p. 104.
"O See also article 81 of the Rules of the Court. It is for the Court itself to decide upon any
request for permission to intervene: see the Tunisia/Libyn (Intervention) case, ICJ Reports,
1981, pp. 3, 12; 62 ILR, p. 608.
See here the SS Wimbledon case, PCIJ, Series A, No. 1 (1923); 2 AD, p. 4; the Huya de la
Torre case, ICJ Reports, 1951, pp. 71, 76-7; 18 ILR, pp. 349, 356-7, and the Nicaraguacase, ICJ Reports, 1984, pp. 215-16; 76 ILR, pp. 74-5.
'82 See the Witnbledon case, PCIJ, Series A, No. 1 (1923), pp. 9-13, and the Haya de la Torrecase, ICJ Reports, 1951, p. 71; 18 ILR, p. 349.
'*'El Salvador/Hond~lras(Interventioil),ICJ Reports, 1990, pp. 92, 134-5; 97 ILR, p. 112. See
also E. Lauterpacht, Axpects, pp. 26 ff.
'84 ICJ Reports, 1974, p. 253; 57 ILR, p. 398.

9Y2

I N T E R N A T I O N A L LAW

on the other, but the Court postponed consideration of this and, after its
judgment that the issue was moot, it was clearly unnecessary to take any
further steps regarding Fiji. Malta sought to intervene in the Tunisia-Libya
Continental S h e l f ~ a s ein~the~ ~light of its shelf delimitation dispute with
Libya in order to submit its views to the Court. The Court felt that thereal purpose of Malta's intervention was unclear and did not relate to any
legal interest of its own directly in issue as between Tunisia and Libya in
the proceedings or as between itself and either one of those countries.286
While Malta did have an interest similar to other states in the area in thecase in question, the Court said287that in order to intervene under article
62 it had to have an interest of a legal nature which might be affected by
the Court's decision in the instant case.
However, the Court granted permission for the very first time in thehistory of both the ICJ and its predecessor to a third state intervening under article 62 of the Statute to Nicaragua in the case concerning
the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras).
The Court heldunanimously that Nicaragua had demonstrated that it had
an interest of a legal nature which might be affected by p art288of the judgment of the Chamber on the merits of the case.28gThe intervening state
does not need to demonstrate a basis ofjurisdiction, since the competence
ofthe Court is founded here not upon the consent ofthe parties as such but
is rather derived from the consent given by the parties in becoming parties
to the Court's Statute to the Court's exercise of its powers conferred by the
Statute.290The purpose of intervention, it was emphasised, was to protect'"ICJ Reports, 1982, p. 18; 67 ILR, p. 4.
286
ICJ Reports, 1981, pp. 3, 12; 62 ILR, pp. 612,621.
"'ICJ Reports, 1981, p. 19; 62 ILR, p. 628. The Court also refused Italy permission toa see IC1 Reports, 1984, p. 3; 70 ILR, p.
intervene under article 62 in the L i b y ~ - ~ t l a l tcase:527. The Court also refused permission to El Salvador to intervene in the Nicaragua caseunder article 63: see IC1 Reports, 1984, p. 215; 76 ILR, p. 74, inasmuch as it related tothe current phase of the proceedings. The Court here more controversially also refused
to hold a hearing on the issue, ibid., but see Separate Opinion of five of the judges, ICJ
Reports, 1984, p. 219; 76 ILR, p. 78.
1.e. concerning the legal regime of the waters within the Gulf of Fonseca only and not
the other issues in dispute, such as maritime delimitations and delimitation of the land
frontier between El Salvador and Honduras.
1CJ Reports, 1990, p. 92; 97 ILR, p. 112.
290 IC1 Reports, 1990, 17. 133; 97 ILR, p. 254. The Court noted that 'the procedure of intervention is to ensure that a state with possibly affected interests may be permitted tointervene even though there is no jurisdictional link and it therefore cannot become aparty: IC1 Reports, 1990, p. 135,97 ILR, p. 256. In the earlier cases it was not felt necessary
to decide this issue: see e.g. the Tunisia/Libya case, ICJ Reports, 1981, pp. 3, 20; 62 ILR,
pp. 612,629, and the LibyalMulta case, IC1 Reports, 1984, pp. 3,28; 70 ILR, pp. 527,557.

INTER- STATE COURTS AND TRIBUNALS

993

a state's 'interest of a legal nature' that might be affected by a decision in
an existing case already established between other states, the parties to thecase, and not to enable a third state to 'tack on a new case'.291
The Court in Camerooiz v. Nigeriu, repeating the formulation adopted
in El S a l v a d o r / ~ o n d u r u s stated, ~ ~ ~ that it followed from the juridical nature and purpose of intervention that the existence of a valid link ofjurisdiction between the intended intervener and the parties was not arequirement for the success of the application. Indeed, 'the procedureof intervention is to ensure that a state with possibly affected interests
may be permitted to intervene even though there is no jurisdictional
link and it therefore cannot become a party'.293A jurisdictional link between the intervening state and the parties to the case is, accordingly,
only necessary where the former wishes actually to become a party to thecase.294
In Indonesia/Malaysia (Philippines Intervening), the Court addressed
the meaning of 'interest of a legal nature' and concluded that it referred
not only to the dispositif; or the operative paragraphs, of the judgment but
also to the reasons constituting the necessary steps to it.295In deciding
whether to permit an intervention, the Court had to decide in relation
to all the circumstances of the case, whether the legal claims which theproposed intervening state has outlined might indeed be affected by thedecision in the case between the parties. The state seeking to intervene had
to 'demonstrate convincingly what it asserts'296and where the state relies
on an interest of a legal nature other than in the subject matter of thecase itself, it 'necessarily bears the burden of showing with a particularclarity the existence of the interest of a legal nature which it claims toha~e'."~"' ICJ Reports, 1990, pp. 133-4.

292

Illid. 1990, p. 135.

'9'

ICJ Reports, 1999, pp. 1034-5.

"5

ICJ Reports, 2001, para. 47.

"6

El Salvador/Honduras (Intervention),ICJ Reports, 1990, pp. 92, 117-18; 97 ILR, p. 112.
And, on the basis of documentary evidence, see Indonesia/Malaysia (Philippines Intervening), ICJ Reports, 2001, para. 81. As to the burden and scope of proof generally, seeabove, 17. 984.
Ir~donesia/Malaysia(Philippines Intervening), ICJ Reports, 200 1, para. 59. The Court concluded that the Philippines had shown in the instruments it had invoked 'no legal interest
on its part that might be affected by reasoning or interpretations of the Court in the mainproceedings, either because they form no part ofthe arguments of Indonesia and Malaysia
or because their respective reliance on theill does not bear on the issue of retention ofsovereignty by the Sultanate of Sulu as described by the Philippines in respect of its claimin North Borneo: ibid., para. 82.

"' El Salvador/Honduras (Intervention),ICJ Reports, 1990, pp. 92, 135; 97 ILR, p. 112.

'"

994

I N T E R N A T I O N A L LAW

The Court in the merits stage of the El Salvador/Honduras case,298
noting that Nicaragua as the intervening state could not thereby as such
become a party to the proceedings, concluded that that state could nottherefore become bound by the judgment.299The intervener upon obtaining permission from the Court to intervene acquires the right to beheard, but not the obligation of being bound by the decision."' Since
neither of the parties had given any indication of consent to Nicaragua
being recognised to have any status which would enable it to rely on the
judgment,"' it followed that the decision of the Court could not bind
Nicaragua and thus was not res judicata for it.302
Applications to intervene have to be filed 'as soon as possible, and notlater than the closure of the written proceedings'.303
Remedies There has been relatively little analysis of the full range of theremedial powers of the court.'04 In the main, an applicant state will seeka declaratory judgment that the respondent has breached internationallaw. Such declarations may extend to provision for future conduct as well
as characterisation of past conduct. Requests for declaratory judgments
may also be coupled with a request for reparation for losses suffered
as a consequence of the illegal activities or damages for injury of various
kinds, including non-material damage.'" Such requests for damages may
include not only direct injury to the state in question but also with regard
to its citizens or their property.306The Court may also interpret a relevantinternational legal provision so that individual rights as well as state rights'98"9

ICJ Reports, 1992, pp. 351, 609; 97 ILR, pp. 266, 525.
This was partly because article 59 of the Statute of the Court refers to the binding effectof a judgment as between the parties only, ICJ Reports, 1992, p. 609; 97 ILR, p. 525.
ICJ Reports, 1992, p. 610; 97 ILR, p. 526.
Since the consent of the existing parties is required for an intervener to become itself aparty to the case, ibid.

'""
'O'

jO'

Ibid.

Rule 8 1( 1).See also Indonesial1i~alaysia(Philippines Intervening), ICJ Reports, 200 1, paras.
20-6.
'04 But see e.g. Gray, Judicial Remedies, and I. Brownlie, 'Remedies in the International Courtof Justice' in Lowe and Fitzmaurice, Ftfty Years of the International Court of Justice, p. 557.
'05 See e.g. the I'm Alone case, 3 RIAA, 1935, p. 1609 and the Rainbow Warrior case, 74 ILR,
pp. 241,274 and 82 ILR, pp. 499,575.
'06 Note that the Bosnian application to the Court in the Application of the Genocide Convention (Bosnia v. Yugoslavia) case included a claim 'to pay Bosnia and Herzegovina, in its
own right and as parens patriae for its citizens, reparations for damages to persons andproperty as well as to the Bosnian economy and environment caused by the foregoing
violations of international law in a sum to be determined by the Court: ICJ Reports, 1993,
pp. 3, 7; 95 ILR, p. 1.
'O'

INTER- STATE COURTS AND TRIBUNALS

995

are recognised in a particular case, thus opening the door to a claim fordamages on behalf of the former by the national state where there has
been a breach of such rights307Reparation may conceivably extend to full
restitution, or restitutio in integrum."8The Court in the Great Belt caseallowed for the possibility of an order for the modification or dismantlingof disputed work^."^ The question of restitution also arose in the Congo v.
Belgium case, where the Court concluded that Belgium was under anobligation to cancel the arrest warrant concerned on the basis of the needfor r e s t i t ~ t i o n . ~ ' ~The issue of reparation was also raised in the Gabi-ikovo-Nagymaros
Project case,311where the Court concluded that both parties had committed internationally wrongful acts and that therefore both p arties wereentitled both to receive and to pay compensation. In the light of such'intersecting wrongs', the Court declared that the issue of compensation
could be satisfactorily resolved in the framework of an overall settlementby the mutual renunciation or cancellation of all financial claims andcounter-claims.312The parties may also request the Court's assistancewith regard to matters yet to be decided between the parties. Accordingly,
in the Gabi-ikovo-Nagymaros Project case, the Court, having reached its
decision on the past conduct of the parties, proceeded in its judgment toexercise its prescriptive competence, that is 'to determine what the future
conduct of the Parties should be'.313
The Court may also refer to, and thus incorporate in its judgment, astatement of one of the parties, and in effect treat it as a binding unilateralstatement. In the LaGrand case, the Court noted the 'substantial activities'
that the US declared that it was carrying out in order to comply with the'"'See the LaGrand case, ICJ Reports, 2001, paras. 3 and 4 of the dispositifcontained inparagraph 128 of the judgment.
See the Cllorzotv Factory case, PCIJ, Series A, No. 13, and the Iranian Hostages case, ICJ
Reports, 1980, p. 4; 61 ILR, p. 502, for possible authority for such a power. See also Gray,
Remedies, pp. 95-6.
ICJ Reports, 1991, pp. 12, 19; 94 ILR, p. 446.
'lo ICJ Reports, 2002, para. 76. But see the Joint Separate Opinion of Judges Higgins,
Kooijmans and Buergenthal, which expressed the view that 'As soon as he ceased to be
Minister for Foreign Affairs, the illegal consequences attaching to the warrant also ceased:
at para. 89. See also the Dissenting Opinion of Judge Van den Wyngaert at para. 83.
'I1 ICJ Reports, 1997, paras. 151 ff.
ICJ Reports, 1997, pp. 7,80-1; 116 ILR, p. 1.
313 ICJ Reports, 1997, pp. 75-6. The Court concluded that, 'It is for the Parties themselves tofind an agreed solution that takes account of the objectives of the Treaty, which must be
p ~ l r s ~ in~ eadjoint and integrated way, as well as the norms of international environmental
law and the principles of the law of international watercourses: ibid., p. 78.
'Ox

'"'

"'

996

I N T E R N A T I O N A L LAW

Convention in question and concluded that such behaviour 'expresses
a commitment to follow through with the efforts in this regard' andmust be regarded as meeting Germany's request for a general assuranceof non-repetiti~n."~In Cameroon v. Nigeria, the Court referred, bothin the text of its judgment and in the dispositif; to a statement of the
Cameroonian Agent as to the treatment of Nigerians living in his country
and stated that it took note with satisfaction of the 'commitment thus~ndertaken'.~"The Court took a further step when, in the LaGrand case, it referredto the 'obligation. . . to review' of the US in cases of conviction and death
sentence imposed upon a foreign national whose rights under the Vienna
Convention on Consular Relations had not been respected,316while inoperative paragraph (7) of the dispositif; the Court, by a majority of fourteen votes to one, concluded that in such situations, 'the United Statesof America, by means of its own choosing, shall allow the review andreconsideration of the conviction and sentence by taking account of theviolation of the rights set forth in that C~nvention'.~"Enforcement Once given, the judgment of the Court under article 60
is final and without appeal. Although it has no binding force except between the parties and in respect of the particular case under article 59,
such decisions are often very influential in the evolution of new rules ofinternational law.318The Court itself is not concerned with complianceand takes the view that 'once the Court has found that a state has enteredinto a commitment concerning its future conduct it is not the Court'sfunction to contemplate that it will not comply with it'.319
Under article 94 of the UN Charter, each member state undertakes tocomply with the decision ofthe Court in any case to which it is a party andif this does not occur, the other party may have recourse to the Security
Council which may make recommendations or take binding decisions.
In the event, the record of compliance with judgments is only marginallysatisfactory. Examples of non-compliance would include Albania in the""CJ

Reports, 2001, paras. 123-4. See also para. 125.
ICJ Reports, 2002, para. 317 and para. \' (C) of the dispositit" 6 ICJ Reports, 2001, para. 126. See also above, chapter 13, p. 689.
31' ICJ Reports, 2001, para. 128. But see R. Y.Jennings, 'The LaGrund Case: 1 The Law nitd
Practice oflnternational Cot~rtsand Tribunals, 2002, pp. 1, 40.
'I8 See generally Shahabuddeen, Precedent.
""The
N~lclearTests case, ICJ Reports, 1974, p. 477.
315

INTER- STATE COURTS AND TRIBUNALS

997

Corfu Channel case,j2' Iceland in the Fisheries Jz~risdictioncase321and Iranin the Iranian ~ o s t a g ecase.322sNevertheless, on a political level such judgments have an impact and should not necessarily be exclusively evaluatedon the legal plane.
Application for interpretation of a judgment323 Article 60 of the
Statute provides that, 'The judgment is final and without appeal. In theevent of dispute as to the meaning or scope of the judgment, the Court
shall construe it upon the request of any party.' Rule 98(1) states that in
the event of dispute as to the meaning or scope of a judgment any party
may make a request for its interpretation. The object of the request must
be solely to obtain clarification of the meaning and the scope of what
the Court has decided with binding force and not to obtain an answer
to questions not so d e ~ i d e d . " Accordingly,~
a request for interpretationmust relate to the operative part of the judgment and not the reasons forthe judgment, unless these are inseparable from the operative part.325The
need to avoid impairing the finality, and delaying the implementation, of
judgments means that the question of the admissibility of the request
needs 'particular attention'.326
In addition, it is necessary that there should exist a dispute as to themeaning or scope of the judgment.
Application for revision of a judgment327 Under article 61 of the
Statute, an application for revision of a judgment may only be madewhen based upon the discovery of some fact of such a nature as to be adecisive factor, which fact was, when the judgment was given, unknown
to the Court and also to the party claiming revision, provided that such'" ICJ Reports, 1949, p. 4; 16 AD, p. 155.
ICJ Reports, 1974, p. 3; 55 ILR, p. 238.
"' ICJ Reports, 1980, p. 3; 61 ILR, p. 530.
'" See e.g. Rosenne, Latv and Practice, vol. 111, p. 1673.
j2'

See Requcstfor Interpretation oftheludgment of20 November 1950 in the Asylum case, ICJ
Reports, 1950, p. 402; 17 ILR, p. 339 and Application for Revision and Irlterpretation oftlze
Judgment of24 February 1982 in the Case Concerningthe Continental Shelf( TunisidLibya),
ICJ Reports, 1985, pp. 191,214-20; 81 ILR, pp. 420,447.
325 See Request for Interpretation ofthe Judgment of11 June 1998 (Cameroon v. Nigeria), ICJ
Reports, 1999, pp. 31, 35.
326 Ibid., p. 36. The Court noted that, 'The language and structure of article 60 of the Statutereflect the primacy of the principle of res jz~dicata.That principle must be maintained',
ibid.
See e.g. Rosenne, Law and Practice, vol. 111, p. 1681.
3'4

'"

998

I N T E R N A T I O N A L LAW

ignorance was not due to negligence. The application must be made within
six months of the discovery of the new fact and within ten years of thedate of the judgment. In the Application for Revision and Interpretation of
the Judgment of 24 February 1982 in the Case Concerning the Continental
Shelf(Tunisia/~ib~a),~~~
the Court decided that the 'new fact' in question,
namely the text of a resolution of the Libyan Council of Ministers of 28
March 1968 setting out the western boundary of the Libyan oil concessions in the first sector of the delimitation, was a fact that could have been
discovered through the application of normal diligence. If Tunisia wasignorant of the facts, it was due to its own negligence.329In addition, it
could not be said that the new facts alleged were of such a nature as to bea decisive factor as required by article 6 1 . ~ ~ 'In the Application for Revision of the Judgment of 11 July 1996 Concerning
Application of the Genocide Convention (PreliminaryObjections),the Court
noted that the first stage of the procedure was to examine the questionof admissibility of the request."' The Court emphasised that article 61
required that the application for revision be based upon the discovery ofsome fact which was unknown when the judgment was given. Thus thefact must have been in existence at the date of the judgment and discovered
subsequently. A fact occurring several years after the judgment would not
be regarded as 'new'.332Drawing legal consequences from post-judgment
facts or reinterpreting a legal situation expost facto would not fall within
the terms of article 61.
Examinationof a situation after the judgment The Court may have thecompetence to re-examine a situation dealt with by a previous decision
where the terms of that decision so provide. This is likely to be rare for itruns the risk of allowing the parties to re-litigate an issue already decided
simply because some of the circumstances have changed. In the Request
for an Examination of the Situation in Accordance with Paragraph 63 of the
Court's Judgment of 20 December 1974 in the Nuclear Tests (New Zealandv. France) Case case,333the Court was asked to act in accordance withparagraph 63 of its 1974 decision in the light of further proposed French
nuclear tests in the South Pacific. Paragraph 63 had noted that 'if thebasis of this Judgment were to be affected, the Applicant could request'" ICJ Reports, 1985, pp. 191, 198-214; 81 ILR, p. 431.
ICJ Reports, 1985, pp. 206-7; 81 ILR, p. 439.
'" ICJ Reports, 1985, pp. 213-14; 81 ILR, p. 446.
ICJ Reports, 2003, para. 15.
Ibld., para. 67.
"' ICJ Reports, 1995, p. 288; 106 ILR, p. 1.
3"

331

33'

INTER- STATE COURTS AND TRIBUNALS

999

an examination of the situation in accordance with the provisions of the
The 1974 judgment had concluded that there was no need for adecision on New Zealand's claims with regard to French nuclear testing asFrance had undertaken not to carry out any further atmospheric nuclear
testing.
The Court implicitly accepted that 'a special procedure' in the senseof a re-examination of a situation in the light of changed circumstances
could be established as a result of the terms of the original decision which
did not amount to either an interpretation of the judgment under article
60 or a revision of the judgment under article 6 1 . Such
~ ~ ~a procedure
would in fact have the aim not of seeking changes in the original judgment, but rather of preserving it intact faced with an apparent challenge
to it by one of the parties at a later date. As Judge Weeramantry noted,'[t]he Court used its undoubted powers of regulating its own procedure todevise a procedure sui g e n e r i ~ ' However,.~~~in the instant case, the Court
found that the basis of its 1974 judgment was a French undertaking not
to conduct any further atmospheric nuclear tests and that therefore it
was only a resumption of nuclear testing in the atmosphere that would
affect the basis of that judgment and that had not occurred.337Accordingly, New Zealand's request for an examination of the situation was
rejected.
~ o n - a ~ ~ e a r a n One
c e ~unfortunate~~
feature ofthe Court's workduring
the 1970s and part of the 1980s was the reluctance of the respondent
government to appear before the Court at all. This occurred in the Fisheries
Jurisdiction case,339the Nuclear Tests case,340the Aegean Sea Continental'" ICJ Reports, 1974, p. 477.

"' Ibid., pp. 3 0 3 4 . Judge Weeramantry noted that the request for an examination of thesituation was 'probably without precedent in the annals of the Court' and one that did
not fit in with any of the standard applications recognised by the Rules of the Court forrevision or interpretation of a judgment, ibid., p. 320.
'j6 Ibid., p. 320.
Ibid., pp. 305-6. France was proposing to undertake a series of underground nuclear tests.
This it eventually did.
See e.g. H. Thirlway, Non-Appearance before the International Court ofJustice, Cambridge,
1985; Elias, International Court, chapter 2; G. G. Fitzmaurice, 'The Problem ofthe "Nonappearing" Defendant Government', 51 BYIL, 1980, p. 89; I. Sinclair, 'Some procedural
Aspects of Recent International Litigation', 30 ICLQ, 1981, p. 338, and 1. Elkind, ~ V o n Appearance before the ICJ, F~~nctionaland Comparative Analysis, Dordrecht, 1984.
33' ICJ Reports, 1974, p. 3; 55 ILR, p. 238.
'40 ICJ Reports, 1974, p. 253; 57 ILR, p. 350.

"'

1000

I N T E R N A T I O N A L LAW~ h e l f c a s e , the~ ~ 'Iranian Hostages case342and the ~ i c a r a g u case.3"aUnderarticle 53 of its Statute, the Court in such a situation may be called uponby the appearing party to decide in favour of its claim. Before doing so,
the Court must satisfy itself not only that it has jurisdiction, but also thatthe claim is well founded in fact and law. This, of course, means that the
Court is compelled to act on behalf of the absent defendant government
in the sense of providing legal argumentation to support its case. This iscontroversial, although not to take into account the defendant's possible
legal case in decidingwould certainly discourage such state from accepting
the judgment.

The advisory jurisdiction of the court3" In addition to having thecapacity to decide disputes between states, the ICJ may give advisory
opinions. Article 65 of the Statute declares that 'the Court may give anadvisory opinion on any legal question at the request of whatever bodymay be authorised by or in accordance with the Charter of the United
Nations to make such a request', while article 96 ofthe Charter notes that aswell as the General Assembly and Security Council, other organs of the UN
and specialised agencies where so authorised by the Assembly may request
such opinions on legal questions arising within the scope oftheir activities.
Unlike contentious cases, the purpose of the Court's advisory jurisdiction is not to settle, at least directly, inter-state disputes, but rather to'" 1CJ Reports, 1978, p. 3; 60 ILR, p. 562.
ICJ Reports, 1980, p. 3; 61 ILR, p. 530. See also the Pakistarli Prisoners of War case, ICJ
Reports, 1973, pp. 328, 347; 57 ILR, p. 606.
141 See US statement in 24 ILM, 1985, pp. 246 ff. See also e.g. Highet, 'Litigation' andChayes, 'Nicaragua'. On 7 October 1985, the US announced that it was terminating its
acceptance ofthe compulsory jurisdiction ofthe ICJ, although it would continue to accept
the jurisdiction of the Court in 'mutually submitted' legal disputes, hlternational Herald
Tribune, 8 October 1985, p. 1. See also 24 ILM, 1985, pp. 1742 ff.
j4' See e.g. Rosenne, Law and Practice, vol. 111, chapter 30; D. Negulesco, 'L'Evolution de lace
57 HR,
Procedure des Avis Consultatif de la Cour Permanente de J ~ ~ s t iInternationale:
1936, p. 1; K. Keith, The Extent of the Advisory Jurisdiction of the International Court uf
Justice, Leiden, 1971; M. Pomerance, The Advisory Jurisdiction of the International Cotrrt
in the League and UhrEras,Baltimore, 1973; D. Pratap, The Advisory Jurisdiction ofthe Interrlatiorial Court, Oxford, 1972; D. Greig, 'The Advisory Jurisdiction of the International
Court and the Settlement of Disputes Between States: 15 ICLQ, 1966, p. 325; R. Higgins,'A Comment on the Current Health ofAdvisory Opinions' in Lowe and Fitzmaurice, Fifty
Years of the Irlterrlational Court offustice, p. 567; G. Abi-Saab, 'On Discretion: Reflections
on the Nature of the Consultative Function of the International Court of Justice' in International Law, the International Court of Justice and Nuclear Weapons (eds. L. Boissonde Chazournes and P. Sands), Cambridge, 1999, p. 36, and Nguyen Quoc Dinh et al., Droit
International Public, p. 907.
3"

INTER- STATE COURTS AND TRIBUNALS

1001'offer legal advice to the organs and institutions requesting the opinion:345
Accordingly, the fact that the question put to the Court does not relate toa specific dispute does not affect the competence of the Court, nor doesit matter that the question posed is abstract in nature. In addressing thequestion put to the Court by a political organ of the UN, the Court will
not have regard to the origins or the political history of the request nor
to the distribution of votes with regard to the relevant resolution. The
fact that any answer given by the Court might become a factor in relation to the subject matter of the request in other fora is also irrelevant indetermining the appropriate response of the Court to the request for theadvisory opinion.346
The general rule established by the Eastern Carelia case347is that the
Court would not exercise its advisory. .jurisdiction in respect of a central
issue in a dispute between the parties where one of these parties refused
to take part in the proceedings. However, the scope of this principle,
which was intended to reflect the sovereignty and independence of states,
has been reduced somewhat in a number of subsequent cases before the
Court. In the Interpretation of Peace Treaties case,348for example, which
concerned the interpretation of the 1947 peace agreements with Bulgaria,
Hungary and Romania, it was stressed that whereas the basis of the Court's
jurisdiction in contentious proceedings rested upon the consent of theparties to the dispute, the same did not apply with respect to advisory
opinions. Such opinions were not binding upon anyone and were given
not to the particular states but to the organs which requested them. The
Court declared that 'the reply of the Court, itself an "organ of the United
Nations", represents its participation in the activities of the organisation,and in principle should not be refused'.349Similarly, the Court emphasisedin the Reservations to the Genocide Convention case,350that the object ofadvisory opinions was 'to guide the United Nations in respect of its own
action'. Thus, the Court would lean towards exercising its jurisdiction,
despite the objections of a concerned party, where it would be providing
The Legality oftlle Threat or Use ofNuclear Weapons case, ICJ Reports, 1996, pp. 226,236;
110 ILR, 17. 163.
Ibid.
PCIJ, Series B, No. 5, 1923; 2 AD, p. 394.
j4' ICT Reports, 1950, pp. 65, 71; 17 ILR, 1717. 331, 335.
The Court has gone further and noted that only 'compelling reasons' could lead it torefuse to give an advisory opinion in such circumstances: see e.g. the Legality of the Threator LTseof Nuclear Weapons case, ICJ Reports, 1996, pp. 226,235 and cases therein cited.
350 ICJ Reports, 1951, pp. l5,19; 18 ILR, pp. 364,366. See also the Namibia case, ICJ Reports,
1971, pp. 16, 24; 49 ILR, pp. 2, 14.

'4'

'"
'"

'"

1002

I N T E R N A T I O N A L LAW

guidance for an international body with respect to the application of aninternational treaty.
In the Western Sahara case,351the ICJ gave an advisory opinion as regards the nature of the territory and the legal ties therewith of Moroccoand Mauritania at the time of colonisation, notwithstanding the objections of Spain, the administering power. The Court distinguished the casefrom the Eastern Carelia dispute on a number of grounds. In the latter
case, Russia, which had objected to the Court's jurisdiction, was neithera member of the League (at that time) nor a party to the Statute of the
PCIJ, whereas in the Western Sahara case, Spain was a UN member andthus a party to the Statute of the ICJ. It had therefore given its consent ingeneral to the exercise by the Court of its advisory jurisdiction. It was also
to be noted that Spain's objection was to the restriction of the reference to
the Court to the historical aspects of the Sahara question.'j2 A vital point
for the Court was that the dispute in the 1975 case had arisen within theframework of the General Assembly's decolonisation proceedings and theobject of the request for the advisory opinion (by the Assembly) was toobtain from the Court an opinion which would aid the Assembly in thedecolonisation of the territory.353Accordingly, the matter fell within thePeace TreatiedReservations cases category of opinions to guide the UN.
The Court emphasised that the central core of the issue was not a dispute
between Spain and Morocco, but rather the nature of Moroccan (andMauritanian) rights at the time of colonisation. Thus, Spain's rights as
the administering power would be unaffected by the Court's judgment,
which was aimed basically at assisting the Assembly to decolonise the territ~ry.~j"he Court noted that it was the fact that inadequate material
was available for an opinion that impelled the PCIJ to refuse to consider
the Eastern Carelia issue, notwithstanding that this arose because of arefusal of one of the parties to participate in the proceedings. In the Western Sahara case, an abundance of documentary material was available tothe
It is therefore evident that the general rule expressed in the
Eastern Carelia case has been to a very large extent eroded.356"' ICJ Reports, 1975, p. 12; 59 ILR, p. 14.

352 ICJ Reports, 1975, p. 24; 59 ILR, p. 41.
Reports, 1975, p. 25; 59 ILR, p. 42.
'j4 ICJ Reports, 1975, p. 27; 59 ILR, p. 44. Note that the Court dealt with the consent of aninterested party in the context not of the competence of the Court, but of the propriety
of giving an opinion, ICJ Reports, 1975, p. 25.
ICJ Reports, 1975, pp. 28-9; 59 ILR, p. 45.
356 See also the Difierence Relating to Immunit)) from Legal Proces.c case, ICJ Reports, 1999,
pp. 62, 78-9; 121 ILR, p. 405.

""CJ

"'

INTER- STATE COURTS A N D T RI BU N ALS

1003

Article 96(2) of the Charter provides that:[olther organs of the United Nations and specialised agencies which may
at any time be so authorised by the General Assembly, may also request
advisory opinions of the Court o n legal questions arising within the scopeof their dctivities.

The Court in the request for an advisory opinion by the World HealthOrganisation on the Legality of the Use by a State of Nuclear Weapons i n~ j ~ that three conditions were required in order toArmed ~ o n - f l i c tfound
found the jurisdiction of the Court in such circumstances: first, that the
specialised agency in question must be duly authorised by the General
Assembly to request opinions from the Court; secondly, that the opinion
requested was on a legal question, and thirdly, that the question must be
one arising within the scope of activities of the requesting agency."" The
Court examined the functions of the WHO in the light of its Constitution3j9and subsequent practice, and concluded that the organisation was
authorised to deal with the effects on health of the use of nuclear weaponsand of other hazardous activities and to take preventive measures with theaim of protecting the health of populations in the event of such weapons
being used or such activities engaged in. However, the question put to the
Court, it was emphasised, concerned not the effects of the use of nuclear
weapons on health, but the legality of the use of such weapons in viewof their health and environmental effects. Accordingly, the Court heldthat the question posed in the request for the advisory opinion did notarise within the scope of activities of the organisation as defined in its~onstitution.~~~The advisory opinion in the Difference Relating to Immunity from Legal
Process case was the first time the Court had received a request underarticle VIII, section 30, of the General Convention on the Privileges and
Immunities of the UN, 1946, which allowed for recourse to the Court foran advisory opinion where a difference has arisen between the UN and amember state. The particular interest in this provision is that it stipulates
that the opinion given by the Court 'shall be accepted as decisive by the
ICI Reports, 1996,p. 66.
Ibid., pp. 71-2. See also the Application for Review of Judgment No. 273 (Mortished) case,
ICJ Reports, 1982, pp. 325,333-4; 69 ILR, pp. 330,344-5.
""eearticle 2(a) to (v) of the M'HO Constitution adopted on 22 July 1946 and amended
in 1960, 1975, 1977, 1984 and 1994.
ICJ Reports, 1996, pp. 66, 75 ff.; 110 ILR, p. 1.
jS7

'"

1004

I N T E R N A T I O N A L LAW

parties'. The importance of advisory opinions delivered by the Court istherefore not to be ~ n d e r e s t i m a t e d . ~ ~ ~The role of the Court
There are a variety of other issues currently facing the Court. As far asaccess to it is concerned, it has, for example, been suggested that thepower to request advisory opinions should be given to the UN Secretary~ e n e r a and1 ~ ~to~states and national courts,363while the possibility ofpermitting international organisations to become parties to contentious
proceedings has been raised.364Perhaps more centrally, the issue of therelationship between the Court and the political organs of the UN, particularly the Security Council, has been raised anew as a consequence ofthe revitalisation of the latter in recent years and its increasing activity.jh5
The Court possesses no express power of judicial review of UN activities,
although it is the principal judicial organ of the organisation and has inthat capacity dealt on a number of occasions with the meaning of UN
resolutions and organs.366In the Lockerbie case,367the Court was facedwith a new issue, that of examining the relative status of treaty obligations
Among other influential Advisory Opinions delivered by the Court are the Reparations
case, ICJ Reports, 1949, p. 174; 16 AD, p. 318; the Adnzissions case, ICJ Reports, 1948, p.
57; 15 AD, p. 333, and the Certain Expenses case, ICJ Reports, 1962, p. 151; 34 ILR, p. 281.
See also the WHO-Egypt case, ICJ Reports, 1980, p. 73; 62 ILR, p. 451; the Administrative
Tribunal cases, ICJ Reports, 1973, p. 166; 54 ILR, p. 381; 1CJ Reports, 1982, p. 325; 69
ILR, p. 330; ICJ Reports, 1987, p. 18; 83 ILR, p. 296 and the Applictibility ofthe Obligation
to Arbitrate case, 1CJ Reports, 1988, p. 12; 82 ILR, p. 225.
j6"eee.g. Higgins, 'Current Health: p. 569, and S. Schwebel, 'Authorising the SecretaryGeneral of the United Nations to Request Advisory Opinions: 78 AJIL, 1984, p. 4. See
also UN Secretary-General, Agenda for Peace, New York, 1992, A1471277, para. 38.
j6' See e.g. S. Sch~vebel,'Preliminary Rulings by the International Comt of Justice at theInstance ofNationa1 Courts', 28 Va. TIL, 1988, p. 495, and S. Rosenne, 'Preliminary Rulings
by the International Court of Justice at the Instance of National Courts: h Reply: 29
Va. JIL, 1989, p. 40.
3"4 See e.g. D. Bowett et al., The lnternrztional Cozlrt oflustice: Process, Prrzctice and Procedzlres,
London, 1997.
3" See e.g. M. Bedjaoui, The New World Order and the Security Council, Dordrecht, 1994.
See also below, chapter 22, p. 1148.
3" See e.g. the Reparatioizs case, ICJ Reports, 1949, p. 174; 16 AD, p. 318, concerning the legal
personality of the UN, the Certain Expenses case, ICJ Reports, 1962, p. 151; 34 ILR, p. 281,
by virtue of ~vhichthe UN u7as able to take action ~vhichdid not amount to enforcement
i l , enabling the creation ofaction outside of the framework of the Security C o ~ u ~ c thus
peacekeeping missions, and the Namibia case, ICJ Reports, 1971, p. 56; 94 ILR, p. 2,
recognising the succession of the UN to the League of Nations with regard to mandated
territories and enshrining the principle of self-determination within international law.
See also the East Tirnor case, ICJ Reports, 1995, pp. 90, 103-4; 105 ILR, p. 226.
z67 ICJ Reports, 1992, p. 3; 94 ILR, p. 478.

INTER- STATE COURTS A N D T RI BU N ALS

1005

and binding decisions adopted by the Security Council. In its decision on
provisional measures, the Court accepted that by virtue of article 103of the UN Charter obligations under the Charter (including decisionsof the Security Council imposing sanctions) prevailed over obligations
contained in other international agreements.j6'
The decisions and advisory opinions of the ICJ (and PCIJ before it)
have played a vital part in the evolution of international l a ~ v . Further,'~~
the increasing number of applications in recent years have emphasisedthat the Court is now playing a more central role within the international
legal system than thought possible two decades ago.370Of course, manyof the most serious of international conflicts may never come before the
Court, due to a large extent to the unwillingness of states to place theirvital interests in the hands of binding third-party decision-making, while
the growth of other means of regional and global resolution of disputes
cannot be ignored.

The International Tribunal for the Law of the
The Law of the Sea Convention, 1982 provides a number of means forsettlingof which the International Tribunal for the Law of
the Sea is one.373The Statute of theprovides that it shall
368 ICJ Reports, 1992, p. 15; 94 ILR, p. 498. The merits stage ofthe case is currently pending.
369 Indeed the importance of the pleadings in the evolution of international law has been

noted: see e.g. P. Sands, 'Pleadings and the Pursuit of International Law' in Legal Visionsof the 21st Century (eds. A. Anghie and G. Sturges), The Hague, 1998, ~vhiledissentinggein theopinions may also be significant: see e.g, the Dissenting Opinion of J ~ ~ d FranckIndonesia/Malaysiacase, 1CJReports, 2002, p. 3. See also, as to the international bar, Sha~v,'A Practical Look at the International Court of Justice' in Evans, Remedies, pp. 11, 12 ff.;
A. L\'atts, 'Enhancing the Effectiveness of Procedmes oflnternational Dispute Settlement:
5 Max Planck Yearbook of United Nations Law,2001, pp. 21,24 ff. and the Declaration ofJudge Ad Hoc Cot in the 'Grand Prince' case, International Tribunal for the Law of theSea, 2001, p. 3.
See e.g. K. Highet, 'The Peace Palace Hots Up: The Mbrld Court in Business Again?: 85
AJIL, 1991, p. 646.
371 See e.g. A. E. Boyle, 'The International Tribunal for the La~vof the Sea and the Settlementof Disputes' in The Chalzgirzg World ofInte~nationa1Laiv in the2lst Cerltz~ry(eds. J. Norton,
M. Andenas and M. Footer), The Hague, 1998; D. Anderson, 'The International Tribunal
for the Law of the Sea: in Evans, Remedies, p. 71; J. Collier and V. Lowe, The Settlenzent of
Disptites in International Law, Oxford, 1999, chapter 5; R. R. Churchill and A. V. Lowe,
The Law of the Sea, 3rd edn, Manchester, 1999, chapter 19; Merrills, International Dispute
Settlement, p. 185; Nguyen Quoc Dinh et al., Droit International Public, p. 912, andG. Eiriksson, The blternational Tribzi~~alfor the Latv of the Sea, The Hague, 2000. See also
http://~mw.itlos.org.
'7' See aboue, chapter 11, p. 568.
See Part XV of the Convention.
374 Annex VI of the Convention.

"'

'"

1006

I N T E R N A T I O N A L LAW

be composed of twenty-one independent members enjoying the highest
reputation for fairness and integrity and of recognised competence in thefield of the law of the sea, while the principal legal systems of the worldand equitable geographical representation are to be assured."' Judges areelected for nine-year terms by the states parties to the C ~ n v e n t i o n . ~ ~ ~The Statute also allows for the appointment of ad hoc judges. Article 17
provides that where the Tribunal includes a member of the nationality of
one of the parties to the dispute, any other party may choose a person toparticipate as a member of the Tribunal. Where in a dispute neither ornone of the parties have a judge of the same nationality, they may choosea person to participate as a member of the
The Tribunal may
also, at the request of a party or of its own motion, decide to select nofewer than two scientific or technical experts to sit with it, but without
the right to vote.""The Tribunal, based in Hamburg, is open to states parties to the Con~ e n t i o n and~ ' ~to entities other than states parties in accordance with PartXI of the Convention, concerning- the International Seabed Area, thereby
including the International Seabed Authority, state enterprises and naturaland juridical persons in certain circumstance^,^^^ or in any case submitted
pursuant to any other agreement conferring jurisdiction on the Tribunal
which is accepted by all the parties to that case.3s1The jurisdiction of
the Tribunal comprises all disputes and all applications submitted to it
in accordance with the Convention and all matters specifically provided
for in any other agreement which confers jurisdiction on the T r i b ~ n a l . " ~The provisions of the Convention and other rules of international law notincompatible with the Convention constitute the applicable law of the
Trib~nal.~~'''' Article 2 of the Statute. A quorum of eleven judges is required to constitute the Tribunal,
article 13.
Article 5.
See also articles 8 , 9 and 18-22 of the Rules of the Tribunal 1997 (as amended in Marchand September 2001). Note, in particular, that under article 22 of the Rules, a non-state
entity may choose an ad hoc judge in certain circumstances.
Article 289 of the Convention and article 15 of the Rules.
"9 Article 292(1) of the Convention and article 20(1) of the Statute. This would include theEuropean Community (now Union): see article l(2) of the Convention.
jSO See in particular articles 153 and 187 of the Convention.
Article 20(2) of the Statute.
382 Article 21. Where the parties to a treaty in force covering law of the sea matters so agree,
any disputes concerning the interpretation or application of such treaty may be submitted
to the Tribunal, article 22.
Article 293 of the Convention and article 23 of the Statute.

'"

'"
'"

INTER- STATE COURTS A N D T RI BU N ALS

1007

Pursuant to Part XI, section 5 of the Convention and article 14 of the
Statute, a Seabed Disputes Chamber of the Tribunal has been formed
with jurisdiction to hear disputes regarding activities in the international
seabed area. The Chamber is composed of eleven judges representing
the principal legal systems of the world and with equitable geographicaldi~tribution."~Ad hoc chambers consisting of three judges may be established if a party to a dispute so requests. The composition is determinedby the Seabed Disputes Chamber with the approval of the parties to thedispute.385The Chamber shall apply the provisions ofthe Convention andother rules of international law not incompatible with thetogether with the rules, regulation and procedures of the International
Seabed Authority adopted in accordance with the Convention and theterms of contracts concerning activities in the International Seabed Area
in matters relating to those contracts.387The Seabed Disputes Chamber
has jurisdiction to give advisory opinions at the request of the Assemblyor the Council of the International Seabed Authority on legal questions
arising within the scope of their activities and such opinions shall be given
as a matter of urgency.388In addition, the Tribunal may create such chambers of three or more persons as it considers necessary"89and a five-person
Chamber of Summary ~ r o c e d u r e . ~ ~ 'The ~ r i b u n a l ~and~ l the Seabed Disputes Chamber have the power
to prescribe provisional measures in accordance with article 290 of the
See article 35. The Chamber shall be open to the states parties, the International Seabed
Ad hocAuthority and the other entities referred to in Part XI, section 5 of the Con~~ention.
judges may be chosen: see articles 23-5 of the Rules.
Articles 187 and 188 of the Convention and article 36 of the Statute. See also article 27 of
the Rules.
'8%rticle 293 of the Cowention.
js7 Article 38 of the Statute. The decisions of the Seabed Chamber shall be enforceable in the
territories of the states parties in the same manner as judgments or orders of the highest
court of the state party in whose territory the enforcement is sought, article 39. Articles
115-23 of the Rules deal with procedural issues in contentious cases before the Chamber.
jSS See articles 159(10) and 191. See also articles 130-7 of the Rules.
jaySee article l j ( 1 ) .A Chamber for Fisheries Disputes and a Chamber for Marine Environment Disputes have been formed under this provision. Under article 1 5 ( 2 ) ,the Tribunal
may form a chamber for dealingwith a specific dispute if the parties so wish and a Chamber was formed in December 2000 to deal with the Stvordfish Stocks dispute between Chileand the European Community. See also articles 29 and 30 and 107-9 of the Rules.
Article 1 5 ( 3 ) . This may hear cases on an accelerated procedure basis and provisional
measures applications when the full Tribunal is not sitting: see article 2 5 ( 2 ) . See also
article 28 of the Rules.
3y1 See also the Resolution on Internal Judicial Practice, 31 October 1997, and articles 40-2of the Rules.
jS4

'"

'"

1008

I N T E R N A T I O N A L LAW

onv vent ion."^ Article 290 provides inter alia that if a dispute has been
duly submitted to the Tribunal, which considers that prima facie it has
jurisdiction, any provisional measures considered appropriate under thecircumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment pending
the final decision may be prescribed. Such provisional measures may be
modified or revoked as soon as the circumstances justifying them havechanged or ceased to exist. Further, the Tribunal or, with respect to activities in the International Seabed Area, the Seabed Disputes Chamber,
may prescribe, modify or revoke provisional measures if it considers thatprima facie the tribunal which is to be constituted would have jurisdiction
and that the urgency of the situation so requires. Once constituted, thetribunal to which the dispute has been submitted may modify, revoke oraffirm those provisional measures. The Convention also makes it clearthat provisional measures are binding, requiring the parties to the dispute to comply promptly with any provisional measures prescribed underarticle 2 . 9 0 . ~ ~ ~Where a party does not appear before the Tribunal, the other party may
request that the Tribunal continue the hearings and reach a decision.394
Before so doing, the Tribunal must satisfy itself not only that it has jurisdiction, but also that the claim is well founded in fact and law.395A party
may present a counter-claim in its counter-memorial, provided that it isdirectly concerned with the subject matter of the claim of the other party
and that it comes within the jurisdiction of the
The Statuteprovides also for third-party intervention, where a state party considers
that it has an interest of a legal nature which may be affected by the decision in any dispute. It is for the Tribunal to decide on this request and, if
such a request is granted, the decision of the Tribunal in the dispute shallbe binding upon the intervening state party in so far as it relates to mattersin respect of which that state party i n t e r ~ e n e d . This~ ' ~ is different fromthe equivalent provision relating to the International Court of Justice and"' ~ r t i c l e25(1) of the Statute. See also articles 89-95 of the Rules.
See article 290(6) of the Convention. Article 95(1) of the Rules declares that each party
is required to submit to the Tribunal a report and information on compliance with any
provisional measures prescribed.
See generally Part 111 of the Rules concerning the procedure of the Tribunal. As to preliminary proceedings and preliminary objections, see article 294 of the Convention andarticles 96 and 97 of the Rules.
395 Article 28.
396 See article 98 of the Rules.
Article 31. See also articles 99-104 of the Rules.
j9'

'"

'"

INTER- STATE COURTS AND TRIBUNALS

1009

thus should avoid the anomalous position of the non-party intervener.398
There is, however, a right to intervene in cases where the interpretation orapplication of the Convention is in question.'99 Decisions of the Tribunal
are final and binding as between the parties to the d i ~ p u t e . ~ "The Tribunal also has jurisdiction to give advisory opinions on a legal
question if an international agreement related to the purposes of theConvention specifically provides for the submission to the Tribunal of arequest for such an opinion."'The Tribunal has heard a number of cases since its first case in 1997.
Most of these cases have concerned article 292 of the Convention which
provides that where a state party has detained a vessel flying the flag ofanother state party and has not complied with the prompt release requirement upon payment of a reasonable bond or other financial security, thequestion of release from detention may be submitted to the Tribunal. In
the Camouco case,402for example, the Tribunal discussed the scope of thearticle and held that it would not be logical to read into it the requirementof exhaustion of local remedies. Article 292 provided for an independent
remedy and no limitation should be read into it that would have the effectof defeating its very object and purpose.403The MOXcase404was similarly acase where the parties (Ireland and the UK) appeared before the Tribunal
at the provisional measures stage under article 290(5),while later moving
to an arbitral tribunal for the merits. The Tribunal prescribed provisional
measures requiring the parties to exchange information regarding thepossible consequences for the Irish Sea arising out of the commissioningof the Mox nuclear plant, to monitor the risks or the effects of the operation of the plant and to devise, as appropriate, measures to prevent
any pollution of the marine environment which might result from theoperation of the plant. In so doing, the Tribunal specifically mentioned
statements made by the UK concerning inter alia transportation ofradioactive material, which the Tribunal characterised as 'assurances' andwhich it placed 'on re~ord'.~"'" See above, p. 991.

"'

Article 32.
Article 33. In the case of a dispute as to the meaning or scope of the decision, the Tribunal
shall construe it upon the request of any party. See also articles 126-9 of the Rules.
401 Article 138 of the Rules. In such cases, articles 130-7 of the Rules concerning the givingof advisory opinions by the Seabed Disputes Chamber shall apply rnutatis ?nutandis.
Case No. 5, judgment of 7 February 2000. See http://www.itlos.org/start2_en.html.
40' Ibid., paras. 57 and 58.
"4
Case No. 10, Order of 3 December 2001, see http://~w.itlos.org/start2_en.html.
40' Ibid., paras. 78-80.
400

"'

1010

I N T E R N A T I O N A L LAW

The Saiga (No. 2) (Saint Vincent and the Grenadines v. Guinea) case406
has been one of the most important decisions to date made by the Trib ~ n a l . ~Issues"
addressed included the impermissibility of extending customs jurisdiction into the exclusive economic zone, the failure to comply
with the rules underpinning the right of hot pursuit under article 111 of
the Law of the Sea Convention, the use of force and admissibility issues
such as the registration of the vessel and the need for a 'genuine link'.408
The Tribunal's part in the Southern Bluefin Tunu caseN9 was limited
to the grant of provisional measure^.^" Thereafter the matter went toa r b i t r a t i ~ n . ~As' ' far as the Tribunal was concerned, this was the first caseapplying article 290(5) of the Law of the Sea Convention regarding the
grant of provisional measures pending the constitution of an arbitral tribunal to which the dispute had been submitted. The Tribunal thus had
to satisfy itself that prima facie the arbitral tribunal would have jurisdict i ~ n . This~ ' ~the Tribunal was able to do and the measures it prescribed
included setting limits on the annual catches of the fish in question.
The Tribunal's judgment in the application for prompt release in theGrand Prince case413focused on jurisdiction and, in particular, whether
the requirements under article 91 of the Law of the Sea Convention reThe Tribunal emphasised
garding nationality of ships had been f~lfilled."~that, like the International Court, it had to satisfy itself that it had jurisdiction to hear the application and thus possessed the right to deal withall aspects of jurisdiction, whether or not they had been expressly raisedby the parties4'' The Tribunal concluded that the documentary evidence
submitted by the applicant failed to establish that it was the flag state of
the vessel when the application was made, so that the Tribunal did nothave jurisdiction to hear the case.416
Case No. 2, judgment of 1 July 1999. See 120 ILR, p. 143 and http://www.itlos.org/
start2-en.htn11.
See e.g. B. H. Oxman and V. Bantz, 94 AJIL, 2000, p. 40 and L. de la Fayette, 'The M A r
Saiga (No. 2) Case: 49 ICLQ, 2000, p. 467.
405 See, o n these issues, above, chapter 11.
409 Case Nos. 3 and 4, Order of 27 August 1999. See 117 ILR, p. 148 and http://www.itlos.
org/start2_en.html.
410 See e.g. R. Churchill, 'The Southern Bluefin Tuna Cases', 49 ICLQ, 2000, p. 979, andB. Kwiatkowska, 'The Southern Bluefin Tuna Cases: 15 blternational Journal of Marine
arid Coastal Law, 2000,p. 1 and 94 AJIL, 2000, p. 150.
'11 119 ILR, p. 508. See e.g. A. E. Boyle, 'The Sol~tllerrlBll~efinTuna Arbitration', 50 ICLQ,
2001, p. 447.
412 See the Order, paras. 40 ff.; 117 ILR, pp. 148, 160. See also above, p. 987.
Case No. 8, judgment of 20 April 2001: see http://www.itlos.org/start2_en.html.
414 Ibid., paras. 62 ff.
4' Ibid., para. 79.
'16 Ibid., para. 93.
'06

INTER- STATE COURTS AND TRIBUNALS

1011

Proliferation of courts and tribunals
The proliferation of judicial organs on the international and regional levelhas been one characteristic of recent decades417The European Court ofJustice, the European Court of Human Rights and the Inter-American
Court of Human Rights are joined by the two Tribunals examining war
crimes in Bosnia and Rwanda and by the new International Criminal
Court, while an African Court of Human Rights is likely to be established
before too long."' In addition, the International Tribunal for the Law of
the Sea has started operating4I9and a variety of other relevant mechanisms have arisen, ranging from the World Trade Organisation's Dispute
Settlement provisions420to administrative tribunals. Again, the work ofarbitration tribunals, whether established to hear one case or a series ofsimilar cases, is of direct relevance.
It is unclear how this may impinge upon the work of the International
Court. Some take the view that proliferation will lead to inconsistency
and confusion, others that it underlines the vigour and relevance of international law in an era of g l ~ b a l i s a t i o nEvidence. ~ ~ ~ to date suggests the
417 See"'"'"I

e.g. S. Rosenne, 'The Perplexities of Modern International Law', 291 HR, 2002,
pp. 13, 125; J. I. Charney, 'The Implications of Expanding International Dispute Settleinent Systems: The 1982 Convention on the Law of the Sea', 90 AJIL, 1996, p. 69, andCharney, 'The Multiplicity of International Tribunals and Universality of International
Law: 271 HR, 1998, p. 101; Oda, 'The International Court of Justice from the Bench', 244
HR, 1953 VII, pp. 9, 139 ff.
See further above, chapters 5 and 7.
419 See above, p. 1005.
See above, chapter 18, p. 938.
See e.g. G. Guillaume, 'The Future of International Judicial Institutions', 44 ICLQ, 1995,
p. 848; S. Rosenne, 'Establishing the International Tribunal for the Law of the Sea', 85
AJIL, 1595, p. 806; T. Buergenthal, 'Proliferation of International Courts and Tribunals: Is
it Good or Bad?',14 Leiden Journal oflnternational Law, 2001, p. 267, and R. Higgins, 'The
ICJ, ECJ, and the Integrity of International Law', 52 ICLQ, 2003, pp. l , 1 2 ff.; B. Kingsbury,'Is the Proliferation of International Courts and Tribunals a Systemic Problem?', 31 Neiv
York Ur~iversityJotlrnal uflnternational Law and Politics, 1999, p. 679; P. M. Dupu): 'The
Danger of Fragmentation or Unification of the International Legal System and the ICJ:
31 ~ V e wYork University Journal of Iizterizational Law and Politics, 1999, p. 791, and J.
Charney, 'Is International Law Threatened by Multiple International Tribunals?', 271 HR,
1998, p. 101. See also the speeches on proliferation, of ICJ Presidents Schwebel http:i/
www.icj-cij.orgiicjm/ipresscomisPEECHESiiS~~eechPresidentGA54~1999
1026.htm
and Guillaume http://wv.i~j-~ij.org/icj~~~~.~~/i~~res~com/SPEECHES/iSpeechPresid
G~1illa~1me_SixthCommittee-2000
1027.htm. Cf. the speech of ITLOS President Rao to the10th meeting of States Parties to the Law of the Sea Convention, 22 May2000, http:iiuww.
itlos.orgistart2_en.html. Note that the Arbitral Tribunal in the iMox case suspended
hearing on the merits on 13 Tune 2003 in order that uncertainties as to the relative
jurisdiction of the Tribunal and the European Court of Justice be resolved: see press
release of 17 Tune 2003.

1012

I N T E R N A T I O N A L LAW

latter rather than the former. Many of the other tribunals concern disputes between individuals and states rather than inter-state disputes andthose in specialist areas, such as human rights, investment problems or
employment issues. The International Tribunal for the Law of the Sea is
beginning to deal with questions that have been before the International
Court, such as jurisdiction and nationality and provisional measures issues, but it is also concerned with specific and limited matters, particularly
the prompt release of arrested foreign vessels, and non-state parties may
become parties to cases before it. Nevertheless, all of these courts andtribunals and other organs relate in some way to international law andthus may contribute to its development and increasing scope. Together
with a realisation of this increasing spread of institutions must come adeveloping sense of interest in and knowledge of the work of such courts
and tribunals. The special position of the International Court as the principal judicial organ of the UN and as the pre-eminent inter-state forum
has led some to suggest a referral or consultative role for it, enabling it toadvise other courts and tribunals. However, it is difficult to see this as arealistic or practical project.
Suggestions for further reading
D. Bowett et al., The International Court of Justice: Process, Practice and Procedures,
London, 1997
R. Y. Jennings, 'The Role of the International Court of Justice: 68 BYIL, 1997, y . 1
J. G. Merrills, Internutional Dispute Settlement, 3rd edn, Cambridge, 1998
S. Rosenne, The Law and Practice of tlie International Court, 1920-1996, 3rd edn,
The Hague, 4 vols., 1997

International law and the use of force by states

The rules governing resort to force form a central element within international law, and together with other principles such as territorial
sovereignty and the independence and equality of states provide theframework for international order.' While domestic systems have, on thewhole, managed to prescribe a virtual monopoly on the use of force forthe governmental institutions, reinforcing the hierarchical structure of
authority and control, international law is in a different situation. It mustseek to minimise and regulate the resort to force by states, without itself
being able to enforce its will. Reliance has to be placed on consent, consensus, reciprocity and good faith. The role and manifestation of force in theworld community is, of course, dependent upon political and other nonlegal factors as well as upon the current state of the law, but the law mustseek to provide mechanisms to restrain and punish the resort to violence.
Law and force from the 'just war' to the United ~ a t i o n s ~The doctrine of the just war arose as a consequence of the Christianisation of the Roman Empire and the ensuing abandonment by Christians' See e.g. Y. Dinstein, War, Aggression and Self-Defence, 3rd edn, Cambridge, 2001; C. Gray,
International Law and the L're of Force, Oxford, 2000; T . M. Franck, Recourse to Force,
Cambridge, 2002; D. TI! Bowett, Self-Defence in International Law, Manchester, 1958; I .
Brownlie, International Law and the lice ofForce by States, Oxford, 1963; J. Stone, Aggression
and World Order, Berkeley, 1958; J.Stone, Legal Controls oflnternational Conflict, 2nd edn,
Berkeley, 1959, and Stone, Conflict Through Consensus, Berkeley, 1977; M. S. McDougal and
F. Feliciano, Law and Minin~urnMbrld Public Order, New Haven, 1961, and McDougal and
Feliciano, The blternational Law of War, New Haven, 1994; H. Waldock, 'The Regulation of
the Use of Force by Individual States in International Law', 81 HR, 1982, p. 415; J. Murphy,
The Urfited Nations and the Control o f International Violence, Totowa, 1982; R. A. Falk,
Legal Order in a Violent World, Princeton, 1968; A. Cassese, Violence and Latv in the Modern
Age, Cambridge, 1988; Laiv and Force in the New Ir~ternationalOrder (eds. L. Damroschand D. J. Scheffer), Boulder, 1991, and Nguyen Quoc Dinh, P. Daillier and A. Pellet, Droit
International Public, 7th edn, Paris, 2002, p. 933.
See e.g. L. C. Green, The Conternporary Law ofArrned Conflict, 2nd edn, Manchester, 2000;
G. Best, War and Laiv Since 1945, Oxford, 1994; S. Bailey, Prohibitions and Restraints in1014

I N T E R N A T I O N A L LAW

of pacificism. Force could be used provided it complied with the divine
will. The concept of the just war embodied elements of Greek and Roman
philosophy and was employed as the ultimate sanction for the mainte(354-430)~defined the just war
nance of an ordered society. St Augustinein terms of avenging of injuries suffered where the guilty party has refused
to make amends. War was to be embarked upon to punish wrongs andrestore the peaceful status quo but no further. Aggression was unjust andthe recourse to violence had to be strictly controlled. St Thomas Aquinas4
in the thirteenth century took the definition of the just war a stage further
by declaring that it was the subjective guilt of the wrongdoer that had tobe punished rather than the objectively wrong activity. He wrote that war
could be justified provided it was waged by the sovereign authority, it was
accompanied by a just cause (i.e. the punishment of wrongdoers) and it
was supported by the right intentions on the part of the belligerents.
With the rise of the European nation-states, the doctrine began tochange.' It became linked with the sovereignty of states and faced theparadox of wars between Christian states, each side being convinced of
the justice ofits cause. This situation tended to modify the approach to thejust war. The requirement that serious attempts at a peaceful resolution of
the dispute were necessary before turning to force began to appear. This
reflected the new state of international affairs, since there now existed aseries of independent states, uneasily co-existing in Europe in a primitivebalance of power system. The use of force against other states, far fromstrengthening the order, posed serious challenges to it and threatened toundermine it. Thus the emphasis in legal doctrine moved from the application of force to suppress wrongdoers to a concern (if hardly apparent attimes) to maintain the order by peaceful means. The great Spanish writerof the sixteenth century, ~ i t o r i a emphasised,~that 'not every kind and'I\'ur, Oxford, 1972; M . JITalzer, Just and Unjust I\irlrs, 2nd edn, New York, 1977, and T. M.
Franck, Fairrless in lnternrztional Lrzlv and Institutionj, Oxford, 1995, chapter 8. See also
'The Concept
Brownlie, Use ofForce, pp, 5 ff.; Dinstein, T4'ur, chapter 3, and C. Green~~ood,of \\'ar in Modern International Law', 36 ICLQ, 1987, p. 283.
See J. Eppstein, The Catholic Tradition of the Laiv of Nations, 1935, pp. 65 Sf.; Bailey, Prolzibitions, pp. 6-9, and Brownlie, Use ofForce, p. 5.
Surnnla Theologica, 11,ii, 40. See Bailey, Prohibitions, p. 9. See also Von Elhe, 'The Evolutionof the Concept of the Just JVar in International Law', 33 AJIL, 1939, p. 669, and C. Parry,'The Function of Law in the International Community' in Manual of Public I~zterlzationnl
Lmv (ed. M . Sorensen), London, 1968, pp. 1,27.
Brownlie, Use of Force, pp. 7 ff.
De Indis et de Jure Belli Relectiones, ss. 14, 20-3, 29 and 60, cited in Bailey, Prohibitions,p. 11.

T H E U S E O F F O R C E B Y STATES

1015

degree of wrong can suffice for commencing war', while Suarez7 notedthat states were obliged to call the attention of the opposing side to theexistence of a just cause and request reparation before action was taken.
The just war was also implied in immunity of innocent persons fromdirect attack and the proportionate use of force to overcome the oppositi~n.~
Gradually it began to be accepted that a certain degree of right might
exist on both sides, although the situation was confused by references tosubjective and objective justice. Ultimately, the legality of the recourse to
war was seen to depend upon the formal processes of law. This approachpresaged the rise of positivism with its concentration upon the sovereignstate, which could only be bound by what it had consented to. ~ r o t i u s , ~in his systematising fashion, tried to exclude ideological considerations as
the basis of a just war, in the light of the destructive seventeenth-century
religious conflicts, and attempted to redefine the just war in terins ofself-defence, the protection of property and the punishment for wrongs
suffered by the citizens of the particular state.
But with positivism and the definitive establishment of the European
balance of power system after the Peace of Westphalia, 1648, the conceptof the just war disappeared from international law as such.1° States weresovereign and equal, and therefore no one state could presume to judge
whether another's cause was just or not. States were bound to honour
agreements and respect the independence and integrity of other countries,
and had to try and resolve differences by peaceful methods.
But where war did occur, it entailed a series of legal consequences. The
laws of neutrality and war began to operate as between the parties andthird states and a variety of legal situations at once arose. The fact that the
war may have been regarded as unjust by any ethical standards did not in
any way affect the legality of force as an instrument of the sovereign state
nor alter in any way the various rules of war and neutrality that sprang
into operation once the war commenced.
Whether the cause was just or not became irrelevant in any legal way tothe international community (though, of course, important in political
See ibid., pp. 11-12. Suarez felt that the only just cause was a grave injustice that could not
be avenged or repaired in any other way, ibid.
Ibid., pp, 12-15.
" bid.,chapter 2, and Brownlie, Use ofForce, p. 13. See DeJure Belli ac Pacis, 1625.
l o See e.g. Brownlie, Use of Force, pp. 14 ff. See also L. Gross, 'The Peace of \trestphalia,
1648-1948; 42 AJIL, 1948, p. 20.

1016

I N T E R N A T I O N A L LAW

terms) and the basic issue revolved around whether in fact a state of war
existed. l1
The doctrine of the just war arose with the increasing power of Christianity and declined with the outbreak of the inter-Christian religious
wars and the establishment of an order of secular sovereign states. Although war became a legal state of affairs which permitted force to be
used and in which a series of regulatory conditions were recognised, there
existed various other methods of employing force that fell short of war
with all the legal consequences as regards neutrals and conduct that thatentailed. Reprisals and pacific blockades" were examples of the use offorce as 'hostile measures short of war:
These activities were undertaken in order to assert or enforce rights
or to punish wrongdoers. There were many instances in the nineteenth
century in particular of force being used in this manner against the weakerstates of Latin America and ~ s i a .There' ~ did exist limitations under international law of the right to resort to such measures but they are probably
best understood in the context of the balance of power mechanism ofinternational relations that to a large extent did help minimise the resort
to force in the nineteenth century, or at least restrict its application.
The First World War marked the end ofthe balance of power system andraised anew the question of unjust war. It also resulted ineffortsto rebuild
international affairs upon the basis of a general international institution
which would oversee the conduct of the world community to ensure that
aggression could not happen again. The creation of the League of Nations
reflected a completely different attitude to the problems of force in theinternational order.14
The Covenant of the League declared that members should submit
disputes likely to lead to a rupture to arbitration or judicial settlement or
inquiry by the Council of the League. In no circumstances were members
to resort to war until three months after the arbitral award or judicial
decision or report by the Council. This was intended to provide a coolingoff period for passions to subside and reflected the view that such a delay
might well have broken the seemingly irreversible chain of tragedy thatlinked the assassination of the Austrian Archduke in Sarajevo with theoutbreak of general war in Europe. League members agreed not to go
l 1 Brownlie, Uxe of Force, pp. 26-8.
l2

l4

Ibid.
l3 Ibid., p. 28 ff.
Ibid., chapter 3. But note Hague Convention I1 of 1907, which provided that the parties
would not have recourse to armed forces for the recovery of coiltract debts claimed fromthe governineilt of one country by the governinent of another as being due to its nationals.

T H E U S E O F F O R C E B Y STATES

1017

to war with members complying with such an arbitral award or judicial
decision or unanimous report by the ~ounci1.l'
The League system did not, it should be noted, prohibit war or the useof force, but it did set up a procedure designed to restrict it to tolerable
levels. It was a constant challenge of the inter-war years to close the gaps
in the Covenant in an effort to achieve the total prohibition of war ininternational law and this resulted ultimately in the signing in 1928 of theGeneral Treaty for the Renunciation of War (the Kellogg-Briand pact).16
The parties to this treaty condemned recourse to war and agreed to renounce it as an instrument of national policy in their relations with one
another."
In view of the fact that this treaty has never been terminated and in
the light of its widespread acceptance,18 it is clear that prohibition of theresort to war is now a valid principle of international law. It is no longer
possible to set up the legal relationship of war in international society.
However, this does not mean that the use of force in all circumstances
is illegal. Reservations to the treaty by some states made it apparent thatthe right to resort to force in self-defence was still a recognised principle
in international law.19 Whether in fact measures short of war such as
reprisals were also prohibited or were left untouched by the treaty's ban
on war was unclear and subject to conflicting interpretations.''
The UN charter 2 'Article 2(4) of the Charter declares that:[all1 members shall refrain in their international relations from the threator use of force against the territorial integrity or political independenceof any state, or in any other manner inconsistent with the purposes of theUnited Nations.

'"rownlie,
LTseof Force, chapter 4. See especially articles 10-16 of the Covenant.
l6 See e.g. Dinstein, War, chapter 4; A. K. Skubiszewski, 'The Use of Force by States' inSorensen, manual ofPublic International Law, pp. 739, 742-4, and Brownlie, Use ofForce,
pp. 74-92.
l 7 Article I.
lS It came into force on 24 ruly 1929 and is still in effect. Many inter-war treaties reaffirmed
the obligations imposed by the Pact: see e.g. Brownlie, Use ofForce, pp. 75-6.
l Y See e.g. Cmd 3153, p. 10.
20 See Brownlie, LTse ofForce, p. 87. Cf. Bowett, Self-Defence, p. 136.
See La Charte des Nations LTnies (eds. J. P. Cot and A. Pellet), 2nd edn, Paris, 1991, and
The Charter of the United Nations (ed. B. Simma), 2nd edn, Oxford, 2002.

"

1018

I N T E R N A T I O N A L LAW

This provision is regarded now as a principle of customary internationallaw and as such is binding upon all states in the world community.22The
reference to 'force' rather than war is beneficial and thus covers situations
in which violence is employed which fall short of the technical requirements of the state of war.
Article 2(4) was elaborated as a principle of international law in the1970 Declaration on Principles of International Law and analysed systematically. First, wars of aggression constitute a crime against peace for which
there is responsibility under international law. Secondly, states must notthreaten or use force to violate existing international frontiers (including
demarcation or armistice lines) or to solve international disputes. Thirdly,
states are under a duty to refrain from acts of reprisal involving the use offorce. Fourthly, states must not use force to deprive peoples of their rightto self-determination and independence. And fifthly, states must refrainfrom organising, instigating, assisting or participating in acts of civil strife
or terrorist acts in another state and must not encourage the formationof armed bands for incursion into another state's territory. Many of these
items are crucial, but ambiguous. Although the Declaration is not of itself
a binding legal document, it is important as an interpretation of the relevant Charter provision^.^" Important exceptions to article 2(4) exist in
relation to collective measures taken by the United ~ a t i o n ands ~ with~ regard to the right of self-defence." Whether such an exception exists withregard to humanitarian intervention is the subject of some c o n t r o v e r ~ y . ~ ~Article 2(6) of the Charter provides that the UN 'shall ensure thatstates which are not members of the United Nations act in accordancewith these Principles so far as may be necessary for the maintenance ofinternational peace and security'. In fact, many of the resolutions adopted
by the UN are addressed simply to 'all states'. In particular, for example,
Security Council resolution 757 (1992) adopted under Chapter VII of theCharter, and therefore binding upon all member states, imposed com--- See e.g. Skubiszewski, 'Use of Force', p. 745, and L. Henkin, R. C. Pugh, 0.Schachter and77

H. Smit, International La141Cases and Materials, 3rd edn, St Paul, 1993, p. 893. See also theThird US Restatelllent ofForeigtz Relations Law, St Paul, 1987, p. 27; Cot and Pellet, Ckarte,p. 115, and Simma, Charter, p. 112.
" See e.g. G. Arangio-Ruiz, The UNDeclaration on FriendlyRelations and theSystern ofSourcesof Irlterrlational Law, Alphen aan den Rijn, 1979, and R. Rosenstock, 'The Declaration o n
Principles of International Law Concerning Friendly Relations', 65 AIIL, 1971, p. 713.
See also General Assembly resolution 42122, the Declaration o n the Enhancement of theEffectiveness ofthe Principle of Refraining from the Threat or Use of Force in International
Relations, 1987.
24 See below, chapter 22, p. 1119.
2' See below, p. 1024.
26 See below, p. 1045.

T H E USE OF FORCE BY STATES

1019

prehensive sanctions upon the Federal Republic of Yugoslavia (Serbia
and Montenegro). However, the invocation in that decision was to 'allstates' and not to 'member states'.

'Force'One point that was considered in the past27and is now being reconsideredis whether the term 'force' in article 2(4) includes not only armed force28
but, for example, economic force.29Does the imposition of boycotts orembargoes against p articular states or groups of states come within article
2(4), so rendering them illegal?'O Although that provision is not modified
in any way, the preamble to the Charter does refer to the need to ensurethat 'armed force' should not be used except in the common interest, while
article 51, dealing with the right to self-defence, specifically refers to armed
force, although that is not of itself conclusive as to the permissibility ofother forms of coercion.
The 1970 Declaration on Principles of International Law recalled the'duty of states to refrain. . . from military, political, economic or any otherform of coercion aimed against the political independence or territorial
integrity of any state' and the International Covenants on Human Rights
adopted in 1966 emphasised the right of all peoples freely to pursue theireconomic, social and cultural development. This approach was underlined in the Charter of Economic Rights and Duties of States, approvedby the General Assembly in 1974, which particularly specified that 'no
state may use or encourage the use of economic, political or any othertype of measures to coerce another state in order to obtain from it thesubordination of the exercise of its sovereign rights'. The question of thelegality of the open use of economic pressures to induce a change of policy by states was examined with renewed interest in the light of the Araboil weapon used in 1973-4 against states deemed favourable to ~ s r a e l . ~ 'It does seem that there is at least a case to be made out in support of" An attempt by Brazil to prohibit 'economic measures' in article 2(4) itself was rejected,

6 UNCIO, Documents, p. 335. See also L. M. Goodrich, E. Hambro and A. P. Simons,Charter of the United Nations, 3rd edn, New York, 1969, p. 49.
See e.g. the mining of Nicaraguan harbours by the US, the Nicaragua case, ICJ Reports,
1986, pp. 14, 128; 76 ILR, 17. 349.
See Simma, Charter, p. 118.
30 See e.g. Economic Coercion and the Netv International Economic Order (ed. R. B. Lillich),
Charlottesville, 1976, and The Arab Oil Weapon (eds. J. Paust and A. Blaustein), Dobbs
Ferry, 1977.
Paust and Blausteii~,Arab Oil Weapon.

''

"

1020

I N T E R N A T I O N A L LAW

the view that such actions are contrary to the United Nations Charter, asinterpreted in numerous resolutions and declarations. But whether suchaction constitutes a violation of article 2(4) is d u b i ~ u s . " ~It is to be noted that article 2(4) covers threats of force as well as useof force.33This issue was addressed by the International Court in its Advisory Opinion to the General Assembly on the Legality of the Threat or
Use of Nuclear Weapons. The Court stated that a 'signalled intention touse force if certain events occur' could constitute a threat under article
2(4) where the envisaged use of force would itself be unlawful. Examples
given included threats to secure territory from another state or causing
it to 'follow or not follow certain political or economic paths', The Court
appeared to accept that the mere possession of nuclear weapons did not of
itself constitute a threat. However, noting that the policy of nuclear deterrence functioned on the basis of the credibility of the possibility ofresorting to those weapons in certain circumstances, it was stated thatwhether this amounted to a threat would depend upon whether the particular use of force envisaged would be directed against the territorial
integrity or political independence of a state or against the purposes of
the UN. If the projected use of the weapons was intended as a meansof defence and there would be a consequential and necessary breach of
the principles of necessity and proportionality, this would suggest thata threat contrary to article 2(4) existed.34 One key point here would be
the definition of proportionality, in particular would it relate to the damage that might be caused or rather to the scope of the threat to which the
response in self-defence is proposed? Ifthe latter is the case, and logic suggests this, then the threat to use nuclear weapons in response to the prioruse of nuclear or possibly chemical or bacteriological weapons becomesless problematic.
The provisions governing the resort to force internationally do notaffect the right- of a state to take measures to maintain order within its
jurisdiction. Accordingly, such a state may forcibly quell riots, suppress
insurrections and punish rebels without contravening article 2(4). In theevent of injury to alien persons or property, the state may be required to" See e.g. Dinstein, War, p. 81.
" Brownlie, Use ofForce, 17.364, notes that a threat of force consists 'in an express or implied

promise by a government of a resort to force conditional o n non-acceptance of certain
demands ofthat government: See also R. Sadurska, 'Threats of Force', 82AJIL,1988, p. 239,
and N. M'hite and R. Cryer, 'Unilateral Enforcement of Resolution 687: A Threat Too Far?',29 California Western International Law Journal, 1999, p. 243.
'4 ICJ Reports, 1996, pp. 226,246-7; 110 ILR, p. 163.

T H E USE OF FORCE BY STATES

1021

make reparation to the state of the alien c ~ n c e r n e d , ~but' apart from thisthe prohibition on force in international law is not in general applicablewithin domestic jurisdictions.j6

Xgainst the territorial integrity or political independence of any state'
Article 2(4) ofthe Charter prohibits the use of force 'against the territorial
integrity or political independence of any state, or in any other manner inconsistent with the purposes ofthe United Nations'. There is a debate as towhether these words should be interpreted restri~tivel~,~'so as to permit
force that would not contravene the clause, or as reinforcing the primaryprohibition," but the weight of opinion probably suggests the latter position. The 1965 Declaration on the Inadmissibility of Intervention in theDomestic Affairs ofemphasised that:[ n ] o state has the right to intervene, directly or indirectly, for any reason whatsoever, in the internal or external affairs of any other state.
C o n s e q u e n t l ~armed intervention and all other forms of interference or
attempted threats against the personality of the state or against its political,
economic and cultural elements. are condemned.

This was reaffirmed in the 1970 Declaration on Principles in International ~ a w , with~ ' the proviso that not only were such manifestations
condemned, but they were held to be in violation of international law.
The International Court of Justice in the Corfu Channel case" declared
specifically, in response to a British claim to be acting in accordance witha right of intervention in minesweeping the channel to secure evidence
for judicial proceedings, that:the alleged right of intervention [was] the manifestation of a policy offorce, such as has, in the past, given rise to most serious abuses and such as
cannot.. . find a place in international law.

See above, chapter 14, p. 733.
But see below, p. 1036, regarding self-determination, and p. 1040, regarding civil wars.
" See e.g. Bowett, Self-Defence, p. 152.
jS See Brownlie, Use of Force, p. 268. See also Skubiszewski, 'Use of Force: pp. 745-6.
General Assembly resolution 2131 (XX).
General Assembly resolution 2625 (XXL7).
41 ICJ Reports, 1949, pp. 4, 35; 16 AD, pp. 155, 167. See also Brownlie, Use ofForce, pp. 2839, and H. Lauterpacht, The Development of International Law by the International Court,
London, 1958, p. 90.
'5

j6

''
"

1022

I N T E R N A T I O N A L LAW

The Court noted that to allow such a right in the present case as aderogation from Albania's territorial sovereignty would be even less admissible:
for, from t h e nature of things it would b e reserved for the most y o w e r f ~ ~ lstates, a n d might easily lead to perverting the administration of international justice itself.

The essence of international relations, concluded the Court, lay in therespect by independent states of each other's territorial sovereignty.42
Categories of force
Various measures of self-help ranging from economic retaliation to theuse of violence pursuant to the right of self-defence have historically beenused. Since the establishment of the Charter regime there are basicallythree categories of compulsion open to states under international law.
These are retorsion, reprisal and self-defence.43

Retorsion is the adoption by one state of an unfriendly and harmful act,
which is nevertheless lawful, as a method of retaliation against the injurious legal activities of another state. Examples include the severance ofdiplomatic relations and the expulsion or restrictive control of aliens, aswell as various economic and travel restrictions. Retorsion is a legitimate
method of showing displeasure in a way that hurts the other state whileremaining within the bounds of legality. The Hickenlooper Amendments
to the American Foreign Assistance Act are often quoted as an instance ofretorsion since they required the United States President to suspend foreign aid to any country nationalising American property without propercompensation. This procedure was applied only once, as against Ceylon(now Sri Lanka) in 1963, and has now been effectively repealed by theAmerican Foreign Assistance Act of 1973.~'Retorsion would also appear" See the Nicaragua case, ICT Reports, 1986, pp. 14, 109-10; 76 ILR, pp. 349,443-4, and see

further below, 17. 1026.

'' As to the use of force by the UN, see below, chapter 22, p. 1119.

" See e.g. Nguyen Quoc Din11 et al., Droit International Public, p. 957; Skubiszewski, 'Use ofForce', p. 753, and G. von Glahn, Law Among Nations, 7th edn, Boston, 1996, pp. 533 ff.

" See e.g. R. B. Lillich, 'Requiem for Hickenlooper: 69 AJIL, 1975, p. 97, and C. F. Amerasinghe, 'The Ceylon Oil Expropriations: 58 AJIL, 1964, p. 445.

T H E USE OF FORCE BY STATES

1023

to cover the instance of a lawful act committed in retaliation to a priorunlawful activity.46

Reprisals 47
Reprisals are acts which are in themselves illegal and have been adopted
by one state in retaliation for the commission of an earlier illegal act
by another state. They are thus distinguishable from acts of retorsion,
which are in themselves lawful acts. The classic case dealing with the lawof reprisals is the Naulilaa dispute" between Portugal and Germany in1928. This concerned a German military raid on the colony of Angola,
which destroyed property, in retaliation for the mistaken killing of three
Germans lawfully in the Portuguese territory.
The tribunal, in discussing the Portuguese claim for compensation,emphasised that before reprisals could be undertaken, there had to be
sufficient justification in the form of a previous act contrary to international law. If that was established, reprisals had to be preceded by anunsatisfied demand for reparation and accompanied by a sense of proportion between the offence and the reprisal. In fact, the German claimthat it had acted lawfully was rejected on all three grounds. Those generalrules are still applicable but have now to be interpreted in the light ofthe prohibition on the use of force posited by article 2(4) of the United
Nations Charter. Thus, reprisals short of force49may still be undertaken
legitimately, while reprisals involving armed force may be lawful if resorted to in conformity with the right of self-defence.50Reprisals as such4"eealso, with regard to countermeasures, above, chapter 14, p. 708.
47 See e.g. Sku~biszewski,'Use of Force: pp. 753-5; Brownlie, Use of Force, pp. 219-23 and281-2; D. II! Bowett, 'Reprisals Including Recourse to Armed Force', 66 AJIL, 1972, p. 1,
and R. W. Tucker, 'Reprisals and Self-Defence: The Customary Law', 66 ATIL, 1972, p. 581.
48 2 R I M , p. 1011 (1928); 4 AD, p. 526. See also G. Hackworth, Digest ofblterilational Law,
Washington, 1943, vol. VI, p. 154.
4' See further, with regard to countermeasures, above, chapter 14, p. 708.
But see Bowett, 'Reprisals: See also SCOR, 19th Year, 11l t h meeting, 8 April 1964, in which
the Security Council condemned reprisals as contrary to the UN Charter and deplored
the UK bombing of Fort Harib, and R. B. Lillich, 'Forcible Self-Help under International
Law', 62 US Naval W a r College Internatiorlal Law Sttdies, 1980, p. 129. Note that the
US State Department has declared that, 'it is clear that the United States has taken the
categorical position that reprisals involving the use of force are illegal under international
law', 'Memorandum on US Practice with Respect to Reprisals', 73 ATIL, 1979, p. 489. As
for episodes that appear to be on the borderline between self-defence and reprisals, seee.g. R. A. Falk, 'The Beirut Raid and the International Law of Retaliation', 63 AJIL, 1969,
p. 415, and Y.Blum, 'The Beirut Raid and the International Double Standard: 64 ATIL,
1970, p. 73.

"

1024

I N T E R N A T I O N A L LAW

undertaken during peacetime are thus unlawful, unless they fall within
the framework of the principle of self-defence." Sometimes regarded as
an aspect of reprisal is the institution of pacific blockade.j2 This developed during the nineteenth century and was extensively used as a forcefulapplication of pressure against weaker states. In the absence of war or
armed hostilities, the vessels of third states were probably exempt fromsuch blockade, although this was disputed by some writers.
Pacific blockades may be instituted by the United Nations Security
but cannot now be resorted to by states since the coming into
force of the Charter of the United Nations. The legality of the so-called'quarantine' imposed by the United States upon Cuba in October 1962
to prevent certain weapons reaching the island appears questionable andshould not be relied upon as an extension of the doctrine of pacific blockade~.'~The right of self-defence''
The traditional definition of the right of self-defence in customary international law occurs in the Caroline case.j6 This dispute revolved aroundan incident in 1837 in which British subjects seized and destroyed a vesselin an American port. This had taken place because the Caroline had been
The International Court declared in the Legality of the Threat or Use of Nuclear IVeapons
that, 'armed reprisals in time of peace.. . are considered to be unlawful.. . any right to[belligerent] reprisals would, like self-defence, be governed inter alia by the principle ofproportionality', ICJ Reports, 1996, pp. 226,246; 110 ILR, p. 163.
See e.g. Skubiszewski, 'Use of Force', pp. 755-7, and Brownlie, Use ofForce, pp. 2 2 3 4 .
See belo\v, chapter 22, p. 1119.
'4 See e.g. Q. Wright, 'The Cuban Quarantine: 57 AJIL, 1963, p. 546, and M. S. McDougal,'The Soviet-Cuban Quarantine and Self-Defence: ibid., p. 597. See also A. Chayes, The
Cuban iWssile Crisis, Oxford, 1974. But note the rather different declaration by the UK ofa Total Exclusion Zone during the Falklands conflict, above, chapter 11, p. 521.
" See Bowett, Self-Defence, and Brownlie, Use ofForce, chapter 13. See also I. Brownlie, 'The
Use of Force in Self-Defence', 37 BYIL, 1961, p. 183; Dinstein, War, chapters 7 and 8; Gray,
Use offorce, chapter 4; Franck, Recourse, chapters 3-7; S. Alexandrov, Self-defence against
the Cse ofForce in Ir~ternatio~lalLaw, The Hague, 1996; J. Delivanis, La Legiti~~leDefense en
Droit International, Paris, 1971; S. Schwebel, 'Aggression, Intervention and Self-Defencein Modern International Law', 136 HR, 1972, p. 411; 0 . Schachter, 'The Right of States to
Use Armed Force', 82 ,Michigan Latv Review, 1984, p. 1620, Schachter, 'Self-Defence andthe Rule of Law: 83 ATIL, 1989, p. 259, and Schachter, Ir~terrlationalLaw in Theory andPractice, Dordrecht, 1991, chapter 8; Cot and Pellet, Charte, p. 771; Nguyen Quoc Dinh
et al., Droit International Public, p. 941, and Simma, Charter, p. 788.
j6 29 BFSP, p. 1137 and 30 BFSP, p. 195. See also R. Y.Jennings, 'The Caroline and McLeod
Cases', 32 AJIL, 1938, p. 82.
j1

''
''

T H E USE OF FORCE BY STATES

1025

supplying groups of American nationals, who had been conducting raids
into Canadian territory. In the correspondence with the British authorities
which followed the incident, the American Secretary of State laid down
the essentials of self-defence. There had to exist 'a necessity of self-defence,
instant, overwhelming, leaving no choice of means, and'no moment for
deliberation'. Not only were such conditions necessary before self-defence
became legitimate, but the action taken in pursuance of it must not be
unreasonable or excessive, 'since the act, justified by the necessity of selfdefence, must be limited by that necessity, and kept clearlywithin it: These
principles were accepted by the British government at that time and are
accepted as part of customary international law.'7
Article 51 of the Charter provides that:
Nothing in the present Charter shall impair the inherent right ofindividual
or collective self-defence if an armed attack occurs against a member of theUnitedNations, until the Security Council has taken the measures necessary
to maintain international peace and security. Measures taken by membersin the exercise of this right of self-defence shall be immediately reported
to the Security Council and shall not in any way affect the authority andresponsibility of the Security Cou~lcilunder the present Charter to take atally tirne such action as it deerns necessary in order to rnaiiltai~lor restore
international peace and security.

There is extensive controversy as to the precise extent ofthe right of selfdefence in the light of article 51. On the one hand, it is argued that article
51 in conjunction with article 2(4) now specifies the scope and limitationsof the doctrine. In other words, self-defence can only be resorted to 'if
an armed attack occurs', and in no other circumstances.58 On the other
hand, there are writers who maintain that the opening phrase in article 51
specifying that 'nothing in the present Charter shall impair the inherent
right o f . . . self-defence' means that there does exist in customary international law a right of self-defence over and above the specific provisionsof article 51, which refer only to the situation where an armed attack has" See e.g. the Legal Adviser to the US Department of State, who noted that 'the exercise of

the inherent right of self-defence depends upon a prior delict, an illegal act that presents
an immediate, overwhelming danger to an actual and essential right of the state. Whenthese conditions are present, the means used must then be proportionate to the gravity ofthe threat or danger', DUSPIL, 1975, p. 17.
j8 See e.g. Brownlie, Use of Force, pp. 112-3 and 264 ff., and E. rimenez de Arechaga, 'International Law in the Past Third of the Century', 159 HR, 1978, pp. 1, 87-98. See also
Skubiszewski, 'Use of Force: pp. 765-8, and H. Kelsen, The Latv of the United Nation$,
London, 1950, p. 914.

1026

I N T E R N A T I O N A L LAW

occurred.59This view is somewhat strengthened by an examination of thetravauxpr6paratoires of the Charter, which seem to underline the validityof the use of force in legitimate self-defen~e.~'A number of academics
and some states have regarded article 51 as merely elaborating one kindof self-defence in the context of the primary responsibility of the Security
Council for international peace and the enforcement techniques available
under the Charter.61
The International Court of Justice in the Nicaragua- case62has, however,clearly established that the right of self-defence exists as an inherent rightunder customary international law as well as under the UN Charter. It
was stressed that:
Article 51 of the Charter is only meaningful o n the basis that there is a'natural' or 'inherent' right of self-defence and it is hard to see how this canbe other than of a customary nature, even if its present content has been
confirmed and influenced by the Charter.. . It cannot, therefore, be heldthat article 51 is a provision which 'subsumes and supervenes' customaryinternational law.

Accordingly, customary law continued to exist alongside treaty law (i.e.
the UN Charter) in this field. There was not an exact overlap and the rules
did not have the same content. The Court also discussed the notion of
an 'armed attack' and noted that this included not only action by regular
armed forces across an international border, but additionally the sendingby or on behalf of a state of armed bands or groups which carry out
acts of armed force of such gravity as to amount to an actual armed
attack conducted by regular armed forces or its substantial involvement
therein.63In this situation, the focus would then shift to a considerationof the involvement of the state in question so as to render it liable and tolegitimate action in self-defence against it.64'' See e.g. Bowett, Self Defence, pp. 185-6; Stone, Aggression and World Order, pp. 43, 956. See also H. Tl7aldock, 'General Course on Public International Law', 166 HR, 1980,
pp. 6, 231-7; J. Brierly, The LUMJof Nations, 6th edn, Oxford, 1963, pp. 417-18, and
D. P. O'Connell, International Law, 2nd edn, London, 1970, vol. I, p. 317.
60 See e.g. 6 UNCIO, Documents, where it is noted that 'the use of arms in legitimate selfdefence remains admitted and unimpaired'.
61 See above, footnote 59. See also Simma, Charter, pp. 790 ff.
62 ICJ Reports, 1986, pp. 14, 94; 76 ILR, pp. 349,428.
63 The Court noted that this provision, contained in article 3(g) of the Definition of Aggression annexed to General Assembly resolution 3314 (XXIX) of 1974, reflected customaryinternational law, ICJ Reports, 1986, p. 103; 76 ILR, p. 437.
64 See e.g. Gray, Use of Force, p. 97.

T H E USE OF FORCE BY STATES1027

The Court did not accept, however, that this concept extended to assistance to rebels in the form of the provision of weapons or logistical orother support, although this form of assistance could constitute a threator use of force, or amount to intervention in the internal or external affairsof the ~ t a t e . ~ V hlays
i s open the problem that in certain circumstances
a state under attack from groups supported by another state may not beable under this definition to respond militarily if the support given by that
other state does not reach the threshold laid down. Judge Jennings referredto this issue in his Dissenting Opinion, noting that, 'it seems dangerous todefine unnecessarily strictly the conditions for lawful self-defence, so as
to leave a large area where both a forcible response to force is forbidden,
and yet the United Nations employment of force, which was intended tofill that gap, is absent'.66
Another aspect of the problem as to what constitutes an armed attack isthe difficulty of categorising particular uses of force for these purposes. For
example, would an attackupon an embassy or diplomats abroad constitutean armed attack legitimating action in self-defence? On 7 August 1998,
the US embassies in Kenya and Tanzania were bombed, causing the lossof over 250 lives and appreciable damage to property. On 20 August,the US launched a series of cruise missile attacks upon installations in
Afghanistan and Sudan associated with the organisation of Bin Ladendeemed responsible for the attacks. In so doing, the US declared itself
acting in accordance with Article 51 of the Charter and in exercise of its
right of self-defen~e.~'Another argument that has been made is that, withregard to actions against aircraft, an armed attack begins at the momentthat the radar guiding the anti-aircraft missile has 'locked on'.@The question has been raised whether the right of self-defence applies
in response to terrorism and, in particular, whether terrorist acts would
constitute 'armed attack' within the meaning of the Charter or customary law.69The day after the 11 September 2001 attacks upon the World
Trade Center in New York, the Security Council adopted resolution 1368
ICJ Reports, 1986, pp. 103-4; 76 ILR, pp. 437-8.
ICJ Reports, 1986, pp. 543-4; 76 ILR, p. 877. Franck suggests that Security Council practicefollowing the 11 September attack on the World Trade Center has followed Tudge Jennings'
approach: see Recotrrse, p. 63, and bel0~47,p. 1048.
67 See 'Contemporary Practice of the United States', 93 ATIL, 1999,p. 161. The US stated thatthe missile strikes 'were a necessary and proportionate response to the imminent threat offurther terrorist attacks against US personnel and facilities: ibid., p. 162 and Sl19981780.
See Gray, Use ofForce, p. 96, footnote 41.
6' See e.g. Dinstein, War, p. 213; Franck, Recourse, chapter 4, and Gray, Use of Force, p. 115.
See also M. Byers, 'Terrorism, the Use of Force and Interilatioilal Law after 11 September:

1028

I N T E R N A T I O N A L LAW

in which it specifically referred to 'the inherent right of individual orcollective self-defence in accordance with the Charter'. Resolution 1373
(2001) reaffirmed this and, acting under Chapter VII, adopted a seriesof binding decisions, including a provision that all states shall 'take thenecessary steps to prevent the commission of terrorist acts'. On 7 October,the US notified the Security Council that it was exercising its right of selfdefence in taking action in Afghanistan against the A1 Qaeda organisation
deemed responsible and the Taliban regime in that country which was
accused of providing bases for the o r g a n i ~ a t i o n The. ~ ~ members of theNATO alliance invoked article 5 of the NATO Treaty7' and the parties tothe Inter-American Treaty of Reciprocal Assistance, 1947 invoked a comparable provision.72 Both provisions refer specifically both to an 'armed
attack' and to article 51 of the Charter. Accordingly, the members of boththese alliances accepted that what had happened on 11 September constituted an armed attack within the meaning of article 51 of the Charter.
In fact, neither treaty was activated as the US acted on its own initiativewith specific allies (notably the UK), relying on the right of self-defencewith the support or acquiescence of the international community.73
A further issue is whether a right to anticipatory or pre-emptive selfdefence exists. This would appear unlikely if one adopted the notion that
self-defence is restricted to responses to actual armed attacks. The conceptof anticipatory self-defence is of particular relevance in the light of modern weaponry that can launch an attack with tremendous speed, which
may allow the target state little time to react to the armed assault before its
51 ICLQ, 2002, p. 401, and L. Condorelli, 'Les Attentats du 11 Septembre et Leur Suite:I
105 RGDIP, 2001, p. 829. As to terrorism, see below, Y,11048.
See S120011946. See also 'Contemporary Practice of the United States: 96 AJIL, 2002,
p. 237.
" See http://www.nato.int/terrorism/factsheet.htm. Article 5 provides that: 'The Parties
agree that an armed attack against one or more of them in Europe or North America
shall be considered an attack against then1 all and consequently they agree that, if suchan armed attaclz occurs, each of them, in exercise of the right of individual or collective
self-defence recognised by article 51 of the Charter of the United Nations, ~villassist the
Party or Parties so attacked by taking forthwith, individually and in concert with the otherParties, such action as it deems necessary, including the use of armed force, to restore andmaintain the security of the North Atlantic area.'
Article 3(1) provides that, 'The High Contracting Parties agree that an armed attackby any State against an American State shall be considered as an attack against all the
American States and, consequently, each one of the said Contracting Parties undertakes toassist in meeting the attack in the exercise of the inherent right of individual or collective
self-defense recognized by Article 51 of the Charter of the United Nations.'"'eee.g. Byers, 'Terrorism: pp. 409-10.

''''

T H E USE OF FORCE BY STATES

1029

successful conclusion, particularly if that state is geographicallyStates have employed pre-emptive strikes in self-defence. Israel, in 1967,
launched a strike upon its Arab neighbours, following the blocking of its
southern port ofEilat and the conclusion of a militarypact between Jordan
and Egypt. This completed a chain of events precipitated by the mobilisation of Egyptian forces on Israel's border and the eviction of the United
Nations peacekeeping forces from the area by the Egyptian resident.^^
It could, of course, also be argued that the Egyptian blockade itself constituted the use of force, thus legitimising Israeli actions without the need for'anticipatory' conceptions of self-defence, especially when taken together
with the other events.76It is noteworthy that the United Nations in its
debates in the summer of 1967 apportioned no blame for the outbreak offighting and did not condemn the exercise of self-defence by Israel.
The International Court in the Nicaragua case7' expressed no view on
the issue of the lawfulness of a response to an imminent threat of an armed
attack since, on the facts of the case, that problem was not raised. The
trouble, of course, with the concept of anticipatory self-defence is that it
involves fine calculations of the various moves by the other party. A preemptive strike embarked upon too early might constitute an aggression.
There is a difficult line to be drawn. The problem is that the nature of theinternational system is such as to leave such determinations to be madeby the states themselves, and in the absence of an acceptable, institutional
alternative, it is difficult to foresee a modification of this. States generally
are not at ease with the concept of anticipatory self-defence, h ~ w e v e r , ~ "74 Contrast Bowett, L'se ofForce, pp. 118-92, who ernphasises that 'no state can be expected to

await an initial attackwhich, in the present state of armaments, may well destroy the state's
capacity for further resistance and so jeopardise its very existence,' and Franck, Fairness,
p. 267, who notes that in such circumstances 'the notion of anticipatory self-defence is bothrational and attractive: ~vithUrownlie, Use of Force, p. 275, and L. Henlun, How Nations
Behave, 2nd edn, New I'ork, 1979, pp. 141-5. See also R. Higgins, The Development ofInternatiorlal Law Throt~ghthe Political Organs of the L'nited ivations, Oxford, 1963, pp.
216-2 1, and Franck, Recourse, chapter 7.
'5 See generally, The Arab-Israeli Conflict (ed. J.N . Moore), Princeton, 3 vols., 1974.
76 Note that Gray writes that Israel did not argue that it acted in anticipatory self-defence
but rather in self-defence following the start of the conflict, Use ofForce, pp. 112-13. See
also Dinstein, MJar, p. 173.
77 ICJ Reports, 1986, pp. 14, 103; 76 ILR, p. 437.
78 See e.g. the Security Council debate on Israel's bombing of the Iraqi nuclear reactor in

1981, 20 ILM, 1981, pp. 965-7. See also A. Cassese, Ir~terilutioizulLaw iiz a Divided World,
Oxford, 1986, pp. 230 ff., who concludes that a consensus is growing to the effect that
anticipatory self-defence is allowed but under strict conditions relating to proof of theimminence of an arined attack that would jeopardise the life of the target state and the1030

I N T E R N A T I O N A L LAW

and one possibility would be to concentrate upon the notion of 'armed
attack' so that this may be interpreted in a relatively flexible manner.79
One suggestion has been to distinguish anticipatory self-defence, wherean armed attack is foreseeable, from interceptive self-defence, where anarmed attack is imminent and unavoidable so that the evidential problems
and temptations of the former concept are avoided without dooming
threatened states to making the choice between violating internationallaw and suffering the actual assault.$' According to this approach, selfdefence is legitimate both under customary law and under article 51 of theCharter where an armed attack is imminent. It would then be a questionof evidence as to whether that were an accurate assessment of the situationin the light of the information available at the relevant time. This would
be rather easier to demonstrate than the looser concept of anticipatory
self-defence and it has the merit of being consistent with the view that theright to self-defence in customary law exists as expounded in the Caroline
case.81In any event, much will depend upon the characterisation of thethreat and the nature of the response, for this has to be proportionate.
There have, however, been suggestions that the notion of anticipatory
self-defence, controversial though that is, could be expanded to a right of'pre-emptive self-defence' that goes beyond the Caroline limits enabling
the use offorce in order to defend against, or prevent, possible attacks. The
US note to the UN on 7 October 2001, concerning action in Afghanistan,
included the sentence that, 'We may find that our self-defence requires
further actions with respect to other organisations and other state^."^This has apparently been further adopted by the US g~vernment.'~
absence of peaceful means to prevent the attack, ibid., p. 233. However, in Ir~terr~ationalLaw, Oxford, 2001, pp. 310-11, Cassese states that, 'it is more judicious to consider suchaction [anticipatory self-defence] as legally prohibited, while admittedly knowing that
there may be cases where breaches of the prohibition may be justified on moral andpolitical grounds and the community will eventually condone them or mete out lenient
condemnation' (emphasis in original).
See e.g. the Dissenting Opinion of Judge Schwebel, Nicaragua case, ICJ Reports, 1986,
pp. 14,347-8; 76 ILR, pp. 349,681. But see Dinstein, War, pp. 169 ff. Note also the suggestion that attacks on computer networks may also fall within the definition of armed attack
if fatalities are caused, e.g. where the computer-controlled systems regulating ~ ~ a t e r w o r k s
and dams are disabled: see Y. Dinstein, 'Computer Network Attacks and Self-Defence', 76Internatiollal Law Studies, US Naval W a r College, 2001, p. 99.
See Dinstein, War, 17. 172.
" See above, p. 1024.
Sl20011946. See also Byers, 'Terrorism', p. 411.
83 See e.g. the speech of President Bush at MEst Point on 1 June 2002,
http:il~~w~~.whitehouse.govinewsireleasesi200210612002060l-3.html.
See also M. E.
O'Connell, 'The Myth of Preemptive Self-Defence: ASIL, Task Force on Terrorism, 2002,
http:il~~v.asil,orgltaskforceiocoi~nell.pdf.

''

T H E U S E O F F O R C E B Y STATES1031

The concepts of necessity and proportionality are at the heart of selfdefence in international law.84 The Court in the Nicaragua case statedthat there was a 'specific rule whereby self-defence would warrant only
measures which are proportional to the armed attack and necessary to
respond to it, a rule well established in customary international law',85
and in the Advisory Opinion it gave to the General Assembly on the Legality of the Threat or Use ofNucleur Weaponsit was emphasised that '[t]hesubmission of the exercise of the right of self-defence to the conditions ofnecessity and proportionality is a rule of customary international law'.86
Quite what will be necessary87 and p r ~ p o r t i o n a t ewill~ ~ depend on thecircumstances of the case.89The necessity criterion raises important evidential as well as substantive issues. It is essential to demonstrate that,as a reasonable conclusion on the basis of facts reasonably known at thetime, the armed attack that has occurred or is reasonably believed to be
imminent requires the response that is proposed.
Proportionality as a criterion of self-defence may also require consideration of the type ofweaponry to be used, an investigation that necessitates
an analysis of the principles of international humanitarian law. The International Court in the Legality of the Threat or Use ofNuclear Weapons casetook the view that the proportionality principle may 'not in itself exclude the use of nuclear weapons in self-defence in all circumstances', butthat 'a use of force that is proportionate under the law of self-defence,
must, in order to be lawful, also meet the requirements of the law applicable in armed conflict'. In particular, the nature of such weapons and the
profound risks associated with them would be a relevant consideration
Use ofFouce, p. 279, footnote 2; Gray, L'se ofForce, p. 105, and Dinstein,War, p. 183.
85 ICJ Reports, 1986, pp. 14,94 and 103; 76 ILR, pp. 349,428 and 437.
ICJ Reports, 1996, p p 226, 245; 110 ILR, p. 163. The Court affirmed that this 'dual
condition' also applied to article 51, whatever the means of force used, ibid.
" See Judge Ago's Eighth Report on State Responsibility to the International Law Commission, where it was noted that the concept of necessity centred upon the availability ofother means to halt the attack so that 'the state attacked.. .must not, in the particular
circumstances, have had any means of halting the attack other than recourse to armed
force: Yearbook of the ILC, 1980, vol. 11, part 1, p. 69.
Judge Ago noted that the correct relationship for proportionality was not between the
conduct constituting the armed attack and the opposing conduct, but rather between theaction taken in self-defence and the purpose of halting and repelling the armed attack, sothat '[tlhe action needed to halt and repulse the attack may well have to assume dimensions disproportionate to those of the attack suffered: ibid.,p. 69. See also J. G. Gardam,'Proportioilality and Force in Interilatioilal Law', 87 AIIL, 1993, p. 391.
Note that the UK declared that Turkish operations in northern Iraq in 1998 'must be
proportionate to the threat', UKMIL, 69 BYIL, 1998, p, 586.
84 See e.g. Brownlie,

1032

I N T E R N A T I O N A L LAW

for states 'believing they can exercise a nuclear response in self-defencein accordance with the requirements of prop~rtionality'.~~One especialdifficulty relates to whether in formulating the level of response a series of activities may be taken into account, rather than just the attack
immediately preceding the act of self-defence. The more likely answer
is that where such activities clearly form part of a sequence or chain of
events, then the test of proportionalitywill be so interpreted as to incorporate this. It also appears inevitable that it will be the state contemplatingsuch action that will first have to make that determinati~n,~'althoughit will be subject to consideration by the international community as awhole and more specifically by the Security Council under the terms ofarticle 51 .92
The protection of nationals abroad 9"
In the nineteenth century, it was clearly regarded as lawful to use force toprotect nationals and property situated abroad and many incidents occurred to demonstrate the acceptance of this position.94Since the adoption of the UN Charter, however, it has become rather more controversial
since of necessity the 'territorial integrity and political independence' of
the target state is infringed,95while one interpretation of article 51 would
deny that 'an armed attack' could occur against individuals abroad within
90 ICJ Reports, 1996, pp. 226,245; 110 ILR, p. 163. See further below, p. 1065.
91 See e.g. H. Lauterpacht, The Function o f l a w in the International

Conzmunity, London,
1933, p. 179.
9' See e.g. D. Grieg, 'Self-Defence and the Security Council: \\'hat Does Article 51 Require?',40 ICLQ, 1991, p. 366.
93 See e.g. M. B. Akehmst, 'The Use of Force to Protect Nationals Abroad: 5 lnternrttional
Relations, 1977, p. 3, and Akehurst, 'Humanitarian Intervention' in Intervention in b\'orld
Politics (ed. H. Bull), Oxford, 1984, p. 95; Dinstein, War, pp. 203 ff.; Gray, Use ofForce, p.
108; Franck, Recozlrse, chapter 6; Waldock, 'General Course', p. 467; L. C. Green, 'Rescue at
Entebbe - Legal Aspects', 6 Israel Yearbook on Human Rights, 1976, p. 312, and M. N. Sha~v,'Some Legal Aspects of the Entebbe Incident: 1 Jewish Law Anrit~ul,1978, p. 232. See
also T. Schweisfurth, 'Operations to Rescue Nationals in Third States Involving the Useof Force in Relation to the Protection of Human Rights', German YIL, 1980, p. 159;
D'Angelo, 'Resort to Force to Protect Nationals', 21 Va. JIL, 1981, p. 485; J. Paust, 'The
Seizure and Recovery of the Mayaguez', 85 Yale Law Jourizal, 1976, p. 774; D. IV. Bowett,'The Use of Force for the Protection of Nationals Abroad' in The Ctlrreizt Legal Regtrlation of the Use of Force (ed. A. Cassese), Oxford, 1986, p. 39, and N. Ronzitti, Rescuingh~ationalsAbroad Tlzrough Military Coercion and Intervention on Grounds of Humanity,
Oxford, 1985.
9 9 e e e.g. Brownlie, Use ofForce, pp. 289 ff.
9' There is, of course, a different situation where the state concerned has consented to theaction.

T H E USE OF FORCE BY STATES

lo33

the meaning of that provision since it is the state itself that must be underattack, not specific persons outside the j u r i ~ d i c t i o n . ~ ~The issue has been raised in recent years in several cases. In 1964,
Belgium and the United States sent forces to the Congo to rescue hostages(including nationals of the states in question) from the hands of rebels,
with the permission of the Congolese government," while in 1975 the
US used force to rescue an American cargo boat and its crew captured by~ a m b o d i aThe
. ~ ~most famous incident, however, was the rescue by Israelof hostages held by Palestinian and other terrorists at Entebbe, following
the hijack of an Air France airliner.99The Security Council debate in thatcase was inconclusive. Some states supportedIsrael's view that it was acting
lawfully in protecting its nationals abroad, where the local state concerned
was aiding the hijackers,loOothers adopted the approach that Israel had
committed aggression against Uganda or used excessive force.'"
The United States has in recent years justified armed action in otherstates on the grounds partly ofthe protection of American citizens abroad.
It was one of the three grounds
announced for the invasion of Grenada
in 19841°2 and one of the four grounds put forward for the intervention in Panama in December 1989."' However, in both cases the levelof threat against the US citizens was such as to raise serious questions
concerning the satisfaction of the requirement of proportionality.'04 The
US conducted a bombing raid on Libya on 15 April 1986 as a consequence of alleged Libyan involvement in an attack on US servicemen inWest Berlin. This was justified by the US as an act of self-defence.''' On
96 See e.g. Brownlie, Use ofForce, pp. 289 ff.
97 See M. Whiteman, Digest oflnternational Law, h'ashington, 1968, vol. V, p. 475. See also R.

B. Lillich, 'Forcible Self-Help to Protect Human Rights: 53 Iowa Law Review, 1967, p. 325.
Paust, 'Seizure and Recovery'. See also DUSPIL, 1975, pp. 777-83.
99 See e.g, Akehurst, 'Use of Force'; Green, 'Rescue at Entebbe', and Shaw, 'Legal Aspects'.
loo See e.g. SlPV.1939, pp. 51-5; SIPV.1940, p. 48 and SIPV.1941, p. 31.
In' See e.g. SIPV.1943, pp. 47-50 and SlPV.1941, pp. 4-10, 57-61 and 67-72. Note that
Egypt attempted without success a similar operation in Cyprus in 1978: see Keesing'jContemporary Archives, p. 29305. In 1980, the US attempted to rescue its ilatioilals held
hostage in Iran but failed: see Sl13908 and the Iran case, ICJ Reports, 1980, pp. 3,43; 61
ILR, pp. 530, 569.
lo'
See the statement of Deputy Secretary of State Dam, 78 AJIL, 1984, p. 200. See also
W. Gilmore, The Grenada Intervention, London, 1984, and below, p. 1042.
lo3
See the statements by the US President and the Department of State, 84 AJIL, 1990, p. 545.
ln4
In the case of Grenada, it was alleged that some American students were ~ulderthreat:
see Gilmore, Grenada, pp. 55-64. In the Panama episode one American had been killed
and several harassed: see V. Nanda, 'The Validity of United States Iilterventioil in Panama
Under International Law', 84 AJIL, 1990, pp. 494,497.
lo'
See President Reagan's statement, The Times, 16 April 1986, p. 6. The UK governineilt
supported this: see The Tirnes, 17 April 1986, p. 4. However, there are problems with
98

lo34

I N T E R N A T I O N A L LAW

26 June 1993, the US launched missiles at the headquarters of the Iraqi

military intelligence in Baghdad as a consequence of an alleged Iraqi plot
to assassinate former US President Bush in Kuwait. It was argued thatthe resort to force was justified as a means of protecting US nationals in
the future.'06 It is difficult to extract from the contradictory views expressed in these incidents the apposite legal principles. While some statesaffirm the existence of a rule permitting the use of force in self-defence
to protect nationals abroad, others deny that such a principle operates ininternational law. There are states whose views are not fully formed or coherent on this issue. The UK Foreign Minister concluded on 28 June 1993
that:'07
Force may be used in self-defence against threats to one's nationals if: (a)there is good evidence that the target attacked would otherwise continue
to be used by the other state in support of terrorist attacks against one's
nationals; (b) there is, effectively, no other way to forestall imminent further
attacks o n one's nationals; (c) the force employed is proportionate to thethreat.

On balance, and considering the opposing principles of saving the threatened lives of nationals and the preservation of the territorial integrityof states, it would seem preferable to accept the validity of the rule incarefully restricted situations consistent with the conditions laid downin the Caroline case.lo8 Whether force may be used to protect property abroad is less controversial. It is universally accepted today that it
is not lawful to have resort to force merely to save material possessions
abroad.
Conclusions
Despite controversy and disagreement over the scope of the right of selfdefence, there is an indisputable core and that is the competence of states
regard to proportionality in view of the injuries and damage apparently caused in the
air raid. One US serviceman was killed in the [Vest Berlin action. The role of the UK inconsenting to the use of British bases for the purposes of the raid is also raised. See also
UKMIL, 57 BYIL, 1986, pp. 639-42 and 80 AJIL, 1986, pp. 632-6, and C. J. Greenwood,'International Law and the United States' Air Operation Against Libya', 89 West Virginia
Law Review, 1987, p. 933.
""eeSecurity Council Debates SIPV. 3245, 1993, and UKMIL, 64 BYIL, 1993, pp. 731 ff.
See also D. Kritsiotis, 'The Legality of the 1993 US Missile Strike on Iraq and the Right of
Self-Defence in International Law', 45 ICLQ, 1996, p. 162.
lo' 227 HC Debs., col. 658; 64 BYIL, 1993, p. 732.
lox See above, p. 1024.

T H E USE OF FORCE BY STATES

lo35

to resort to force in order to repel an attack. A clear example of this wasprovided in the Falklands conflict. Whatever doubts may be entertained
about the precise roots of British title to the islands, it is very clear thatafter the Argentinian invasion of the territory, the UK possessed in law
the right to act to restore the status quo ante and remove the Argentinian
troop^.'^' Security Council resolution 502 (1982),in calling for an immediate withdrawal of Argentinian forces and determining that a breach of
the peace existed, reinforced this. It should also be noted that it is acceptedthat a state is entitled to rely upon the right of self-defence even while its
possession of the territory in question is the subject of contro~ersy."~
How far the right of self-defence extends, particularly when faced withaggravated challenges to the international community from terrorism, is
an issue of great contemporary concern.ll1
Collective self-defence112
Historically the right of states to take up arms to defend themselves fromexternal force is well established as a rule of customary internationallaw. Article 51, however, also refers to 'the inherent right o f . . . collective
self-defence' and the question therefore arises as to how far one state may
resort to force in the defence of another. The idea of collective self-defence,
however, is rather ambiguous. It may be regarded merely as a pooling of
a number of individual rights of self-defence within the framework of aparticular treaty or institution, as some writers have suggested,l13or it may
form the basis of comprehensive regional security systems. If the former
were the case, it might lead to legal difficulties should Iceland resort toforce in defence of Turkish interests, since actions against Turkey wouldin no way justify an armed reaction by Iceland pursuant to its individual
right of self-defence.
In fact, state practice has adopted the second approach. Organisations
such as NATO and the Warsaw Pact were established after the Second
World War, specifically based upon the right of collective self-defence
under article 5 1. By such agreements, an attack upon one party is treatedas an attack upon a11,ll4 thus necessitating the conclusion that collective
ln9
See above, chapter 9, p. 452.

See e.g. Brownlie, Use ofFo~ce,pp. 382-3.
See further on terrorism, below, p. 1048.
11' See e.g. Dlnstein, War, chapter 9, and Gray, Use ofForce, chapter 5.
113 See e.g. Bowett, Self-Defence, p. 245, cf. Goodrich, Hambro and Simons, Charter, p. 348.
See also Brownlle, Use of Force, pp. 328-9.
1 1 4 See e.g. article 5 of the NATO Treaty, 1949. See further below, chapter 23, p. 1168.
'lo

11'

1036

I N T E R N A T I O N A L LAW

self-defence is something more than a collection of individual rights ofself-defence, but another creature altogether.'"This approach finds support in the Nicaragua case.'16 The Court
stressed that the right to collective self-defence was established in customary law but added that the exercise of that right depended upon
both a prior declaration by the state concerned that it was the victim
of an armed attack and a request by the victim state for assistance. In
addition, the Court emphasised that 'for one state to use force against
another, on the ground that that state has committed a wrongful act
of force against a third state, is regarded as lawful, by way of exception, only when the wrongful act provoking the response was an armed
attacktH7
The invasion of Kuwait by Iraq on 2 August 1990 raised the issue ofcollective self-defence in the context of the response of the states allied in
the coalition to end that conquest and occupation. The Kuwaiti government in exile appealed for assistance from other states.llg Although thearmed action from 16 January 1991 was taken pursuant to UN Security
Council resolution^,"^ it is indeed arguable that the right to collective
self-defence is also relevant in this context.120
Force and self-determination12'
Article 2(4) of the UN Charter calls upon states to refrain in their international relations from the threat or use of force against another state. It
does not cover as such the self-determination situation where a people
resorts to force against the colonial power. Until comparatively recently
such situations were regarded as purely internal matters. The colonial
Note article 52 ofthe UN Charter, which recognises the existence ofregional arrangements
and agencies, dealing ~vithsuch matters relating to international peace and security as
are appropriate for regional action, provided they are consistent with the purposes andprinciples of the UN: see further below, chapter 22, p. 1154.
'I6 ICJ Reports, 1986, pp. 14, 103-5; 76 ILR, pp. 349,437.
ICJ Reports, 1986, p. 110. See also ibid., p. 127; 76 ILR, pp. 444 and 461.
'I8 See Keesing's Record of World Events, pp. 37631 ff. (1990).
'I9 See below, chapter 22, p. 1135.
Note that Security Council resolution 661 (1990) specifically referred in its preamble to'the inherent right of individual or collective self-defence, in response to the armed attack
by Iraq against Kuwait: See also the Barcelona Traction case, ICJ Reports, 1970, pp. 3, 32;
46 ILR, pp. 178,206.
See e.g. A. Cassese, Self-Determination ofPeoples, Cambridge, 1995, p. 193, and H. Wilson,
International Laiv and the Use of Force by National Liberation Movements, Oxford, 1988.
As to the principle of self-determination, see above, chapter 5, p. 225.
'Is

"'
'"

"'

T H E USE OF FORCE BY STATES

lo37

authority could use such force as it deemed necessary to suppress a riot
or rising without the issue impinging upon article 2(4). With the growing
acceptance of self-determination as a legal right,122the question as to thelegitimacy of the use of force was raised. It was argued indecisively in
the Security Council upon the occasion of India's invasion of GoaI2%nd
discussed at great length in the debates of the Special Committee leading
to the adoption of the Declaration on Principles of International Law in1970.12"n the event, the Declaration emphasised that all states were under a duty to refrain from any forcible action which deprives people oftheir right to self-determination.12' This can now be regarded as acceptedby the international community. The Declaration also noted that 'in theiractions against, and resistance to, such forcible action' such peoples could
receive support in accordance with the purpose and principles of the UN
Charter. This modest and ambiguous formulation could not be taken
as recognition of a right of self-defence inherent in peoples entitled toself-determination. The UN Charter neither confirms nor denies a rightof rebellion. It is neutral. International law does not forbid rebellion, it
leaves it within the purview of domestic law. The General Assembly, however, began adopting resolutions in the 1970s reaffirming the legitimacy ofthe struggle of peoples for liberation from colonial domination and alien
subjugation, 'by all available means including armed struggle'.'26 Thisapproach was intensively debated in the process leading to the adoption
by the Assembly of the Consensus Definition of Aggression in 1 9 7 4 . ' ~ ~In particular, the issue centred upon whether the use of force by peoples entitled to self-determination was legitimate as self-defence against
the very existence of colonialism itself or whether as a response to force
utilised to suppress the right of self-determination. The former view was
taken by most Third World states and the latter by many Western states.
In the event, a rather cumbersome formulation was presented in article'" See e.g. resolution 1514 (XV), the Colonial Declaration, 1960, and above, chapter 5,
p. 227.

'" SCOR, 16th Year, 897th meeting, pp. 9-11. See also S15032, and Sl5033, and Q. Wright,'The Goa Incident', 56 AJIL, 1962, p. 617.
12"ee e.g. Al5746, pp. 20,23 and 42-5, and A17326, paras. 103, 105, 109, 175 and 177. See
also Al7619, paras. 167 and 168.
12' See also para. 4 of the 1960 Coloilial Declaration, and S. Schwebel, 'Slrars of Liberation
as Fought in UN Organs' in Latv and Civil Mhr in the h.loderi1 lVorld (ed. J. N . Moore),
Princeton, 1974, p. 446.
""eee.g. resolutions 3070 (XXVIII), 3103 (XXVIII), 3246 (XXIX), 3328 (XXIX), 3481
(XXX), 31191, 31192, 32142 and 321154.
127
See e.g. Al7185lRev.1, para. 60, and A17402, paras. 16 and 61. See also A18019, para. 47,
and Al8929, paras. 34, 73, 74, 142 and 143.

1038

I N T E R N A T I O N A L LAW

7 of the Definition which referred inter alia and in ambiguous vein to
the right of peoples entitled to but forcibly deprived of the right to selfdetermination, 'to struggle to that end and to seek and receive support,
in accordance with the principles of the Charter and in conformity' withthe 1970 ~ e c l a r a t i o n . ' ~ 'The argument as to whether self-determination (or national liberation)
wars could be regarded as international armed conflicts was also raisedin the Diplomatic Conference on International Humanitarian ~ a w , ' ~ ~which led to the adoption in 1977 of two Additional Protocols to the
Geneva 'Red Cross' Conventions of 1949. Ultimately, article l(4) of Protocol I was approved. It provides that international armed conflict situations 'include armed conflicts in which peoples are fighting againstcolonial domination and alien occupation and against racist regimes inthe exercise of their right to self-determination' as enshrined in the Charter of the UN and the 1970 Declaration. The effect of this (within theclear self-determination context as defined in the Charter and the 1970
Declaration) is that the argument that valid self-determination conflicts
are now to be accepted as within the international sphere of the activity of states has been greatly strengthened. The view that articles 2(4)and 51 of the Charter now apply to self-determination conflicts so thatthe peoples in question have a valid right to use force in self-defence iscontroversial and difficult to maintain. It is more likely that the principle of self-determination itself provides that where forcible action has
been taken to suppress the right, force may be used in order to counter
this and achieve self-determination. The use of force to suppress selfdetermination is now clearly unacceptable, as is help by third parties
given to that end.
The question of third-party assistance to peoples struggling to attainself-determination is highly controversial, and has been the subject ofdisagreement between Western and some Third World states. A numberof the UN General Assembly resolutions have called on states to provide
all forms of moral and material assistance to such peoples,'30 but the legal
lZ8 Comments made following the adoption of the Definition clearly revealed the varying

interpretations made by states of this provision: see e.g. AIC.61SR.1472, paras. 5, 27 and48, andAIC.6ISR.1480, paras. 8, 17,25 and 73. See also Stone, Conflict Throtrgh Consenstrs,
pp. 66-86.
""eee.g. CDDHISR.2, paras. 8-11 and 44-5.
130 See e.g. resolutions 2105 (XX),2160 (XX),2465 (XXIII),2649 (XXV),2734 ( X X L r ) , 2787
(XXVI),3070 (XXVIII),3163 (XXI7III),2328 (XXIX),3421 (XXX),31129, 31133, 32110
and 321154.

T H E USE OF FORCE BY STATES

lo39

situation is still far from clear and the provision of armed help would
appear to be u n 1 a w f ~ l . l ~ ~The principle of non-intervention is part of customary international law
and founded upon the concept of respect for the territorial sovereignty
of states.'33 Intervention is prohibited where it bears upon matters inwhich each state is permitted to decide freely by virtue of the principle of state sovereignty. This includes, as the International Courtof Justice noted in the Nicaragua case,13"he choice of political, economic, social and cultural systems and the formulation of foreign policy.
Intervention becomes wrongful when it uses methods of coercion in regard to such choices, which must be free ones.13' There was 'no generalright of intervention in support of an opposition within another state'
in international law. In addition, acts constituting a breach of the customary principle of non-intervention will also, if they directly or indirectly involve the use of force, constitute a breach of the principle ofthe non-use of force in international re1ati0ns.l~~
The principle of respect for the sovereignty of states was another principle closely allied
to the principles of the prohibition of the use of force and of nonintervention. 13'

See e.g. 1718018, paras. 234 and 235, and a b o ~ ep.
, 1038, with regard to the phrase in the1970 Declaration. See also Stone, Conflict Tllrotlgh Consensus, pp. 66-86, and B. Ferencz,
Defining International Aggression, Dobbs Ferry, 1975, uol. 11, p. 48, with regard to theambiguous formulation in the 1974 Definition of Aggression.
'j2 See e.g. Gray, L'se qfForce, chapter 3; Nguyen Quoc Dinh et a]., Droit lnternatioilal Public,p. 947; T. Komarlinicki, 'LIIntervention en Droit International hloderne', 62 RGDIP, 1956,
p. 521; T. Farer, 'The Regulation of Foreign Armed Intervention in Civil Armed Conflict:142 HR, 1974 11, p. 291, and J. E. S. Fawcett, 'Intervention in International Law', 103 HR,
1961 11, 1). 347.
"3 See the Cocfu Channel case, ICJ Reports, 1949, pp. 4, 35; 16 AD, pp. 155, 167 andthe Nicaragua case, ICJ Reports, 1986, pp. 14, 106; 76 ILR, pp. 349, 440. See also
the Declaration on the Inadmissibility of Intervention in the Domestic Affairs ofStates, 1965 and the Declaration on the Principles of Interllatiollal Law, 1970, above,
p. 1021.
l j 4 ICJ Reports, 1986, pp. 14, 108; 76 ILR, p. 442. See also S. McCaffrey, 'The Forty-First
Session of the International Law Commission: 83 AJIL, 1989, p. 937.
135 ICJ Reports, 1986, p. 108.
ICJ Reports, 1986, pp. 109-10; 76 ILR, p. 443.
137 ICJ Reports, 1986, p. 111; 76 ILR, p. 445.
''I

1040

I N T E R N A T I O N A L LAW

Civil wars'38
International law treats civil wars as purely internal matters, with thepossible exception of self-determination conflicts. Article 2(4) of the UN
Charter prohibits the threat or use of force in international relations, notin domestic situations. There is no rule against rebellion in internationallaw. It is within the domestic jurisdiction of states and is left to be dealt
with by internal law. Should the rebellion succeed, the resulting situation
would be dealt with primarily in the context of recognition. As far as
third parties are concerned, traditional international law developed thecategories of rebellion, insurgency and belligerency.
Once a state has defined its attitude and characterised the situation, different international legal provisions would apply. If the rebels are regarded
as criminals, the matter is purely within the hands of the authorities of thecountry concerned and no other state may legitimately interfere. If therebels are treated as insurgents, then other states may or may not agree togrant them certain rights. It is at the discretion of the other states concerned, since an intermediate status is involved. The rebels are not mere
criminals, but they are not recognised belligerents. Accordingly, the otherstates are at liberty to define their legal relationship with them. Insurgency
is a purely provisional classification and would arise, for example, where astate needed to protect nationals or property in an area under the de facto
control of the rebels.139On the other hand, belligerency is a formal status
involving rights and duties. In the eyes of classical international law, otherstates may accord recognition of belligerency to rebels when certain conditions have been fulfilled. These were defined as the existence of an armed
conflict of a general nature within a state, the occupation by the rebels ofa substantial portion of the national territory, the conduct of hostilities inaccordance with the rules ofwar and by organised groups operating undera responsible authority and the existence of circumstances rendering it
necessary for the states contemplating recognition to define their attitude'"

See e.g. Moore, Luiv and Civil War; The International Regulation of Civil Wars (ed.
E . Luard), Oxford, 1972; The International Latv of Civil lVurs (ed. R. A. Falk), Princeton, 1971; T. Fraser, 'The Regulatioil of Foreign Intervention in Civil Armed Conflict',
142 HR, 1974, p. 291, and W. Friedmann, 'Intervention, CivilWar and the Rule ofInternational Law', PASIL, 1965, p. 67. See also R. Higgins, 'Intervention and International Law'
i n Bull, Intervention iiz World Politics, p. 2 9 ; C . C. Joyner and B. Grimaldi, 'The UnitedStates and Nicaragua: Reflectioils o n the Lawfulness of Coilteinporary Intervention', 25
Vd. JIL, 1985, p. 621, and Schachter, Interrzutioizul Law, pp. 158 ff.
See e.g. H. Lauterpacht, Recogilition in Internatioilal Law, Cambridge, 1947, pp. 275 ff.

T H E U S E O F F O R C E B Y STATES

1041

to the situation.140This would arise, for example, where the parties tothe conflict are exercising belligerent rights on the high seas. Other maritime countries would feel compelled to decide upon the respective statusof the warring sides, since the recognition of belligerency entails certain
international legal consequences. Once the rebels have been accepted byother states as belligerents they become subjects of international law andresponsible in international law for all their acts. In addition, the rules
governing the conduct of hostilities become applicable to both sides, so
that, for example, the recognising states must then adopt a position ofneutrality.
However, these concepts of insurgency and belligerency are lacking inclarity and are extremely subjective. The absence of clear criteria, particularly with regard to the concept of insurgency, has led to a great dealof confusion. The issue is of importance since the majority of conflicts
in the years since the conclusion of the Second World War have been in
essence civil wars. The reasons for this are many and complex and ideological rivalry and decolonisation within colonially imposed boundaries areamongst them.l4l Intervention may be justified on a number of grounds,
including response to earlier involvement by a third party. For instance,
the USSR and Cuba justified their activities in the Angolan civil war of
1975-6 by reference to the prior South African interventi01-1,'~~
while theUnited States argued that its aid to South Vietnam grew in proportion to
the involvement of North Vietnamese forces in the conflict.'""
The international law rules dealing with civil wars depend upon the
categorisation by third states of the relative status of the two sides to theconflict. In traditional terms, an insurgency means that the recognisingstate may, if it wishes, create legal rights and duties as between itself andthe insurgents, while recognition of belligerency involves an acceptanceof a position of neutrality (although there are some exceptions to thisrule) by the recognising states. But in practice, states very rarely make anexpress acknowledgement as to the status of the parties to the conflict,precisely in order to retain as wide a room for manoeuvre as possible.

'" See e.g. N. Mugerwa, 'Subjects of Interilatioilal Law' in Sorensen, ,Wunual ofpublic International Law, pp. 247,286-8. See also R. Higgins, 'International Law and Civil Conflict'in Luard, International Regtllntion of Civil 12inrs, pp. 169, 170-1.
14' See e.g. M. N. Shawl, Title to Territory in Africa: Internatioilul Legul Issues, Oxford, 1986.
14' See e.g. C. Leguin and T. Hodges, After Angola, London, 1976.
'43 See e.g. Law und the Indo-Chinu Wur (ed. J . N . Moore), Charlottesville, 1972. See also The
Vietnam IVar and International Law (ed. R. A. Falk), Princeton, 4 vols., 1968-76.

1042

I N T E R N A T I O N A L LAW

This means that the relevant legal rules cannot really operate as intended
in classical law and that it becomes extremely difficult to decide whether
a particular intervention is justified or not.144
Aid to the authorities of a state'"'
It would appear that in general outside aid to the government authorities
to repress a revolt'46 is perfectly legitimate,'" provided, of course, it was
requested by the government. The problem of defining the governmental
authority entitled to request assistance was raised in the Grenada episode.
In that situation, the appeal for the US intervention was allegedly madeby the Governor-General of the island,14' but controversy exists as towhether this in fact did take place prior to the invasion and whether theGovernor-General was the requisite authority to issue such an a ~ p e a 1 . l ~ ~The issue resurfaced in a rather different form regarding the Panama invasion of December 1989. One of the legal principles identified by the US
Department of State as the basis for the US action was that of assistanceto the 'lawful and democratically elected government in ~ a n a m a ' . " The~problem with this was that this particular government had been preventedby General Noriega from actually taking office and the issue raised wastherefore whether an elected head of state who is prevented from everacting as such may be regarded as a governmental authority capable ofrequesting assistance including armed force from another state. This infact runs counter to the test of acceptance in international law of governmental authority, which is firmly based upon effective control rather
than upon the nature of the regime, whether democratic, socialist orotherwise.151"' But see below, chapter 22, p. 1120, with regard to the increasing involvement of the UN
in internal conflicts and the increasing tendency to classify such conflicts as possessing
an international dimension.
'45 See e.g. L. Doswald-Beck, 'The Legal Validity of Military Intervention by Invitation of theGovernment', 56 BYIL, 1985, p. 189, and Gray, Use ofForce, pp. 60 ff.
146 Except where the recipient state is forcibly suppressing the right to self-determination ofa people entitled to such rights: see above, p. 1036.
14' Until a recognition of belligerency, of course, although this has been unknown in modern
times: see e.g. Lauterpacht, Recognition, pp. 230-3.
14' See the statement by Deputy Secretary of State Dam, 78 ATIL, 1984, p. 200.
See e.g. J. N. Moore, Law and the Grenada ~Wission,Charlottesville, 1984, and Gilmore,
Grenada. See also Higgins, Development of International Law, pp. 162-4 regarding theCongo crisis of 1960, where that state's President and Priine Minister sought to dismisseach other.
15' See above, chapter 8, p. 376.
84 AJIL, 1990, p. 547.

'"

T H E USE OF FORCE BY STATES

lo43

The general proposition, however, that aid to recognised governmental authorities is legitimate, would be further reinforced where it could
be shown that other states were encouraging or directing the subversive
operations of the rebels. In such cases, it appears that the doctrine ofcollective self-defence would allow other states to intervene openly andlawfully on the side of the government authorities.'" Some writers havesuggested that the traditional rule of permitting third-party assistance togovernments would not extend to aid where the outcome of the struggle
has become uncertain or where the rebellion has become widespread andseriously aimed at overthrowing the government.'53 While this may bepolitically desirable for the third state, it may put at serious risk entirely
deserving governments. Practice, however, does suggest that many formsof aid, such as economic, technical and arms provision arrangements, toexisting governments faced with civil strife, are acceptable.lj4 There is anargument, on the other hand, for suggesting that substantial assistance toa government clearly in the throes of collapse might be questionable asintervention in a domestic situation that is on the point of resolution, butthere are considerable definitional problems here.
Aid to rebels
The reverse side of the proposition is that aid to rebels is contrary tointernational law. The 1970 Declaration on Principles of International
Law emphasised that:[ n ]o state shall organise, assist, foment, finance, incite or tolerate subversive,
terrorist or armed activities directed towards the violent overthrow of theregime of another state, or interfere in civil strife in another state."

But in the light of the principles propounded in the Nicaragua case, IC1 Reports, 1986,
pp. 104, 120-3; 76 ILR, pp. 349,438,454-7.
I"'
See e.g. Q. T17right,'US Intervention in the Lebanon', 53 AJIL, 1959, pp. 112, 122. See
also R. A. Falk, Legal Order in a Violent World, Princeton, 1968, pp. 227-8 and 273, andDoswald-Beck, 'Legal Validity', p. 251.
lS4 See, with regard to the UK continuance of arms sales to Nigeria during its civil war,
Higgins, 'International Law and Civil Conflict', p. 173. Note also the US policy of distinguishing between traditional suppliers of arms and non-traditional suppliers of arms insuch circumstances. It would support aid provided by the former (as the UK in Nigeria),
but not the latter: see DUSPIL, 1976,p. 7.
Is' See also in similar terms the Declaration on the Inadmissibility of Intervention in theDomestic Affairs of States, 1965, above, p. 1021. Article 3(g) of the General Assembly's
Consensus Definition of Aggression, 1974, characterises as an act of aggression 'the sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries, whichcarry out acts of armed force against another state: See also, with regard to US aid to the

Is'

lo44

I N T E R N A T I O N A L LAW

The Declaration also provided that:[elvery state shall refrain from any action aimed at the partial o r total
disruption of the national unity a n d territorial integrity of any other stateo r country.

This would seem fairly conclusive, but in fact state practice is far fromunanimous on this point.156Where a prior, illegal intervention on thegovernment side has occurred, it may be argued that aid to the rebels
is acceptable. This was argued by a number of states with regard to theAfghanistan situation, where it was felt that the Soviet move into that state
amounted to an i n ~ a s i 0 n . l ~ ~The situation in the Democratic Republic of the Congo
The situation in the Democratic Republic of the Congo in 1999 and after,with intervention against the government by Uganda and Rwanda (seeking initially to act against rebel movements operating against them from
Congolese territory and then assisting rebels against the Congo government) and on behalf of the government by a number of states, including
Zimbabwe, Angola and Namibia, is instructive. In resolution 1234 (1999))
the Security Council recalled the inherent right of individual and collective self-defence in accordance with article 51 and reaffirmed the needfor all states to refrain from interfering in the internal affairs of otherstates. It called upon states to bring to an end the presence of uninvited
forces of foreign states.15"he Council called for the orderly withdrawalof all foreign forces from the Congo in accordance with the Lusaka Ceasefire ~ g r e e m e n t in
' ~ ~1999.160 Security Council resolution 1304 (2000)
went further and, acting under Chapter VII, demanded that 'Uganda and
Rwanda, which have violated the sovereignty and territorial integrity of
the Democratic Republic of the Congo, withdraw all their forces from theterritory of the Democratic Republic of the Congo without delay'. An end
to all other foreign military presence and activity was also called for in
Nicaraguan 'Contras', Chayes, Cuban Missile Crisis, and the Nicaragua case, ICJ Reports,
1986, p. 14; 76 ILR, p. 349.
156 See e.g. Syrian intervention in the Jordanian civil war of 1970 and in the Lebanon in 1976.
15' See e.g. Keesi~igiContemnporary Archives, pp. 30339, 30364 and 30385. See also General Assembly resolutions ES-62; 35137; 36134; 37137 and 38129 condemning the USSR
for its armed intervention in Afghanistan. See also Doswald-Beck, 'Legal Validity',
pp. 230 ff.
'j8 See Gray, Use ofForce, p. 53.
'j9 See Sll9991815.
Security Council resolution 1291 (2000).

T H E USE OF FORCE BY STATES

lo45

conformity with the provisions of the Lusaka agreement.161The UN alsoestablished a mission in the Congo (MONUC) in 1999, whose mandate
was subsequently extended.'" The situation reveals, particularly in the
period prior to the Lusaka agreement, the UN view that aid to rebels byforeign states was acceptable while aid by foreign states to the government
was not. Other issues of concern in the conflict included the treatment of
the civilian population, the rise of HIVIAids infections, the use of childsoldiers and the looting of the natural resources of the Congo.

It has sometimes been argued that intervention in order to protect the livesof persons situated within a particular state and not necessarily nationalsof the intervening state is permissible in strictly defined situations. Thishas some support in pre-Charter law and it may very well have been thecase that in the nineteenth century such intervention was accepted underinternational law.164However, it is difficult to reconcile today with article'" See also Security Council resolutions 1341 (2001) and 1355 (2001).Security Councilresolution 1376 (2001) welcomed the withdrawal of some forces, including the full Namibian
contingent, from the Congo. See also resolutions 1417 (2002), 1457 (2003) and 1468
(2003).
See further below, chapter 22, p. 1146.
16' See e.g. Gray, Use of Force, p. 24; Dinstein, War, p. 66; Franck, Recourse, chapter 9; Humanitarian Intervention (eds. J. L. Holzgrefe and R. 0. Keohane), Cambridge, 2003; S.
Chesterman, Jc~stWar or Just Peace: Humanitarian Intervention and International Law,
Oxford, 2001; Gray, Use of Force, p. 26; Hunzarlitarian Intervention and the United Nations (ed. R. B. Lillich), Charlottesville, 1973; R. B. Lillich, 'Forcible Self-Help by States
to Protect Hunian Rights', 53 Iowa Laiv Review, 1967, p. 325, and Lillich, 'Intervention
to Protect Human Rights', 15 McGill Law Journal, 1969, p. 205; J. P. Fonteyne, 'The Customary International Law Doctrine of Humanitarian Interyention', 4 California WesternInternational Law Journal, 1974, p. 203; Chilstrom, 'Humanitarian Intervention underContemporary International Law', 1 Yale Studies in World Public Order, 1974, p. 93; N. D.
Arnison, 'The Law of Humanitarian Intervention' in Refugees in the 1990s: New Strategies
for a Restless World (ed. H. Cleveland), 1993, p. 37; D. J. Scheffer, 'To~vardsa Modern Doctrine of Humanitarian Intervention', 23 University of Toledo Law Review, 1992, p. 253; D.
Kritsiotis, 'Reappraising Policy Objections to Humanitarian Intervention', 19 Michigan
Journal of Irlterrzational Law: 1998, p. 1005; N. Tsagourias, The Tlzeory and Praxis of Htlinailitarian Intervention, Manchester, 1999, and F. Teson, Hurnaiiitariail Intervention: An
Iilquiry into Law and Morality, 2nd edn, New York, 1997. See also C. Palley, 'Implicationsof Humanitarian Activities for the Enjoyment of Human Rights', EICN.4ISub.2I1994139,
1994, and R. B. Lillich, 'Humanitarian Intervention Through the United Nations: Towards the Development of Criteria', 53 ZaoRV, 1993, p. 557, and below, chapter 22,
p. 1138.
'64 See e.g. H. Ganji, International Protection of Hclrnan Right$, New York, 1962, chapter 1
and references cited in previous footnote.

'"

1046

I N T E R N A T I O N A L LAW

2(4) of the charter16' unless one either adopts a rather artificial definitionof the 'territorial integrity' criterion in order to permit temporary violations or posits the establishment of the right in customary law. Practicehas also been in general unfavourable to the concept, primarily because
it might be used to justify interventions by more forceful states into theterritories of weaker states.'@ Nevertheless, it is not inconceivable that insome situations the international community might refrain from adopting a condemnatory stand where large numbers of lives have been saved incircumstances of gross oppression by a state of its citizens due to an outside intervention. In addition, it is possible that such a right might evolvein cases of extreme humanitarian need. One argument used to justify theuse ofwestern troops to secure a safe haven in northern Iraq after the Gulf
War was that it was taken in pursuance of the customary international law
principle of humanitarian intervention in an extreme situation. Security
Council resolution 688 (1991) condemned the widespread repression by
Iraq of its Kurd and Shia populations and, citing this, the US, UK andFrance proclaimed 'no-fly zones' in the north and south of the country.'67
There was no express authorisation from the UN. It was argued by the UKthat the no-fly zones were 'justified under international law in response
to a situation of overwhelming humanitarian necessity'.168
The Kosovo crisis of 1999 raised squarely the issue of humanitarian intervention.16' The justification for the NATO bombing campaign, actingout of area and without UN authorisation, in support of the repressed
lh5 See, in particular, Brownlie, 'Humanitarian Intervention', in Moore, Law and Civil Il'ar,p. 217.
lh"ee e.g. M. B. Akehurst, 'Humanitarian Intervention' in Bull, Intervention in Il'orld Politics,
p. 95. Note that the absence of the nationality link between the state intervening and the,14, p. 721.
persons concerned makes an important difference: see a b o ~ echapter
See the views expressed by a Foreign Office legal advisor to the House of Commons
Foreign Affairs Committee, UKMIL, 63 BYIL, 1992, pp. 827-8. This is to be compared
wit11 the views of the Foreign Office several years earlier where it was stated that the bestcase that could be made was that it was not 'unambiguously illegal': see UKMIL, 57
BYIL, 1986, p. 619. See also Gray, Use of Force, pp. 28 ff., and below, chapter 22,
p. 1136.
UKMIL, 70 BYIL, 1999, p. 590.
169 See e.g. Gray, Use of Force, p. 31; B. Simma, 'NATO, the UN and the Use of Force: Legal
Aspects: 10 EJIL, 1999, p. 1; Kofi A. Annan, Tlle Qtlextion of Ir~tervention:Statements bytlle Secretary-General, New York, 1999; 'NATO's Kosovo Intervention', various writers,
93 AJIL, 1999, pp. 824-62; D. Kritsiotis, 'The Kosovo Crisis and NATO's Applicationof Armed Force Against the Federal Republic of Yugoslavia', 49 ICLQ, 2000, p. 330; P.
Hilpod, 'Humanitarian Intervention: Is There a Need for a Legal Reappraisal?: 12 EJIL,
2001, p. 437, and 'Kosovo: House of Commons Foreign Affairs Committee 4th Report,
June 2000: various memoranda, 49 ICLQ, 2000, pp. 876-943.

'"

T H E USE OF FORCE BY STATES

lo47

ethnic Albanian population of that province ofYugoslavia, was that of humanitarian necessity. The UK Secretary of State for Defence stated that,'In international law, in exceptional circumstances and to avoid a humanitarian catastrophe, military action can be taken and it is on that legal basisthat military action was taken.'I7O The Security Council by twelve votes tothree rejected a resolution condemning NATO's use of force.I7' After the
conflict, and after an agreement had been reached between NATO and Yug ~ s l a v i a , the' ~ ~Council adopted resolution 1244 (1999) which welcomed
the withdrawal ofYugoslav forces from the territory and decided upon the
deployment under UN auspices of international civil and military presences. Member states and international organisations were, in particular,
authorised to establish the international security presence and the resolution laid down the main responsibilities of the civil presence. There was
no formal endorsement of the NATO action, but no c~ndemnation.~"
It can be concluded that the doctrine of humanitarian intervention in acrisis situation was invoked and not condemned by the UN, but it received' "nott possible to characterise the legal situation as
meagre ~ u ~ ~ o r t . ~ isgoing beyond this."5
UKMIL, 70 BYIL, 1999, p. 586. A Foreign Office Minister wrote that, 'a limited use offorce was justifiable in support of the purposes laid down by the Security Council but
without the Council's express authorisation when that was the only means to avert an
immediate and overwhelmiilg huinailltariail catastrophe: ibid., p. 587 and see also ibid.,
p. 598.
17' SCOR, 3989th meeting, 26 March 1999.
17' See 38 ILM, 1999, p. 1217.
17' Note that Yugoslavia made an application in April 1999 to the International Court against
ten of the nineteen NATO states, alleging that these states, by participating in the useof force, had violated international law. The Court rejected the application made forprovisional measures in all ten cases: see e.g. ICJ Reports, 1999, p. 124 (Yugoslavia v.
17'

Belgizlttz).
174 See also the Nicaragua case, ICJ Reports, 1986, pp. 14, 134-5; 76 ILR, p. 349, where the

Court stated that the use of force could not be the appropriate method to monitor or
ensure respect for human rights in Nicaragua.
Note that the UK produced a set of Policy Guidelines on Humanitarian Crises in 2001.
This provided inter alia that the Security Council should authorise action to halt or avert
massive violations of humanitarian law and that, in response to such crises, force may
be used in the face of overwhelming and immediate humanitarian catastrophe when
the government cannot or will not avert it, when all non-violent methods have been
exhausted, the scale of real or potential suffering justifies the risks of military action, if
there is a clear objective to avert or end the catastrophe, there is clear evidence that suchaction would be welcomed by the people at risk and that the consequences for sufferingof non-action would be worse than those of iilterventioi~.Further, the use of force should
be collective, limited in scope and proportionate to achieving the humanitarian objective
and consistent with international humanitarian law, UKMIL, 72 BYIL, 2001, p. 696.

1048

I N T E R N A T I O N A L LAW

One variant of the principle of humanitarian intervention is the contention that intervention in order to restore democracy is permitted assuch under international law.17'jOne ofthe grounds given for the US intervention in Panama in December 1989 was the restoration of democracy,17'
but apart from the problems of defining democracy, such a proposition
is not acceptable in international law in view of the clear provisions of
the UN Charter. Nor is there anything to suggest that even if the principle of self-determination could be interpreted as applying beyond thestrict colonial context'78to cover 'democracy', it could constitute a norm
superior to that of non-intervention.
Terrorism and international law1j9
The use of terror as a means to achieve political ends is not a new phenomenon, but it has recently acquired a new intensity. In many cases,
terrorists deliberately choose targets in uninvolved third states as a meansof pressurising the government of the state against which it is in conflictor its real or potential or assumed allies.lsOAs far as international law isconcerned, there are a number of problems that can be identified. The firstmajor concern is that of definition.lsl Secondly, how widely should theoffence be defined, for instance should attacks against property as well as
attacks upon persons be covered? Thirdly, the extent to which one shouldtake into account the motives and intentions of the perpetrators is raised.
Although the attack on the US World Trade Center on 11 September 2001
See e.g. J. Cra~vford,'Democracy and International Law', 44 BYIL, 1993, p. 113; B. R.
Roth, Governmental Illegitimacy in International Law, Oxford, 1999; Franck, Fairness,
chapter 4, and Franck, The Empowered Self; Oxford, 1999; Gray, Use ofForce, p. 42, and0.
Schachter, 'The Legality of Pro-Democratic In?-asion', 78 AJIL, 1984, p. 645.
See e.g. Keesing's Record of World Events, p. 37112 (1989). See also Nanda, 'Validity', p.
498.
See above, chapter 6, p. 269.
See e.g. Gray Use of Force, p. 115; Legal Aspects of International Terrorisill (eds. A. E. Evansand hlurphy), Lexington, 1978; R. Friedlander, Terrorism, Dobbs Ferry, 1979; R. B.
Lillich and T. Paxman, 'State Responsibility for Injuries to Aliens Caused by Terrorist Activity', 26 Arnericarl Lau~Revieiu,1977, p. 217; International Terrorism and Political Crimes(ed. M . C. Bassiouni), 1975; E. Mc\l%inney, Aerial Piracy artd biternational Terrorism,2nd edn, Dordrecht, 1987; A. Cassese, Terrorism, Politics and Law, Cambridge, 1989;
J. Delbriick, 'The Fight Against Global Terrorism', German YIL, 2001, p. 9, and A. Cassese, 'Terrorism is Also Disrupting Some Crucial Legal Categories of International Law', 95
AJIL, 2001, p. 993. See also the UN website on terrorism, http://~ww.un.org/terrorisml.
lX0 The hijack of TWA Flight 847 on 14 June 1985 by Lebanese Shi'ites is one example ofthis
phenomenon: see e.g. The Economist, 22 June 1985, p. 34.
lX1 See e.g. GAOR, 28th session, Supp. no. 28, 1973, pp. 7-8.

"'
'"

,,

T H E USE OF FORCE BY STATES

lo49

marked a watershed in the progress to an international consensus, somework had been done beforehand.
Despite political difficulties, increasing progress at an internationaland regional
level has been made to establish rules of international law
with regard to terrorism. A twin-track approach has been adopted, dealing
both with particular manifestations of terrorist activity and with a general
condemnation ofthe phenomenon.'82In so far as the first is concerned, theUN has currently adopted twelve international conventions concerning
terrorism, dealing with issues such as hijacking, hostages and terrorist
bombings.ls3 Many of these conventions operate on a common model,
establishing the basis of quasi-universal jurisdiction with an interlocking
network of international obligations. The model comprises a definition of
the offence in question and the automatic incorporation of such offences
within all extradition agreements between states parties coupled withobligations on states parties to make this offence an offence in domestic
law, to establish jurisdiction over this offence (usuallywhere committed in
the territory of the state or on board a ship or aircraft registered there, orby a national of that state or on a discretionary basis in some conventions
where nationals of that state have been victims) and, where the alleged
offender is present in the territory, either to prosecute or to extradite toanother state that will.18"
In addition, the UN has sought to tackle the question of terrorism
in a comprehensive fashion. In December 1972, the General Assembly
set up an ad hoc committee on terrorismls5 and in 1994 a Declaration on Measures to Eliminate International Terrorism was adopted.'''See, with regard to the failed attempt by the League of Nations in the 1937 Conliention
for the Prevention and Punishment of Terrorism to establish a comprehensive code,e.g. Murphy, United Nations, p. 179. See also T. M. Franck and B. Lockwood, 'Preliminary Thoughts Towards an International Convention on Terrorism: 68 AJIL, 1974,
p. 69.
18"ee the Conventions on Offences Committed on Board Aircraft, 1963; for the Suppression
Acts against theof Unlawful Seizure of Aircraft, 1970; for the Suppression of Unlawf~~lSafety of Civil Aviation, 1971; on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents, 1973; against the Taking of
Hostages, 1979; on the Physical Protection of Nuclear Material, 1980; for the Suppressionof Unlawful Acts of Violence at Airports, Protocol 1988; for the Suppression of Unlawful
Acts against the Safety of Maritime Navigation, 1988; for the Suppression of Unla~vfulActs against the Safety of Fixed Platforms on the Continental Shelf, Protocol 1988; on theMarking of Plastic Explosives for the Purpose of Identification, 1991; for the Suppressionof Terrorist Bombing, 1997 and for the Suppression of the Financing of Terrorism, 1999.
l X 4 See further above, chapter 12, p. 597.
l X 5 See General Assembly resolution 3034 (XXVII).
lX6 General Assembly resolution 49160.
18'

1050

I N T E R N A T I O N A L LAW

This condemned 'all acts, methods and practices of terrorism, as criminal and unjustifiable, wherever and by whomever committed', notingthat 'criminal acts intended or calculated to provoke a state of terror in
the general public, a group or person or persons or particular persons
for political purposes are in any circumstance unjustifiable, whatever
the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them'.
States are also obliged to refrain from organising, instigating, facilitating, financing or tolerating terrorist activities and to take practicalmeasures to ensure that their territories are not used for terrorist installations, training camps or for the preparation of terrorist acts against otherstates. States are further obliged to apprehend and prosecute or extradite perpetrators of terrorist acts and to co-operate with other states inexchanging information and combating terrorism.'" The Assembly has
also adopted a number of resolutions calling for ratification of the various
conventions and for improvement in co-operation between states in thisarea.188
An Ad Hoc Committee was established in 19961a9to elaborate international conventions on terrorism. The Conventions for the Suppressionof Terrorist Bombing, 1997 and of the Financing of Terrorism, 1999 resulted. However, the attempt to draft a convention on nuclear terrorism
has not yet been successful. The Committee is also working on drafting acomprehensive convention on international terrorism.lgO
The Security Council has also been active in dealing with the terrorism
threat.191 In particular, it has characterised international terrorism as athreat to international peace and security. This approach has evolved. In
resolution 731 (1992), the Security Council, in the context of criticism
of Libya for not complying with requests for the extradition of suspectedbombers of an airplane, referred to 'acts of international terrorism that
A supplementary declaration rvas adopted in 1996, which emphasised in addition thatacts of terrorism and assisting them are contrary to the purposes and principles of theUN. The question of asylum-seekers who had committed terrorist acts was also addressed,
General Assembly resolution 511210. See also resolution 551158, 2001.
lX8 See e.g. resolutions 341145, 351168 and 36133.
General Assembly resolution 511210.
See e.g, the Report of the Sixth Committee, 2002, Al561593. See also General Assembly
resolution 57127,2003.
19' For example, in resolution 579 (1985),it condemned ~ulequivocallyall acts of hostagetaking and abduction, and see also the statement made by the President of the Security
Council on behalf of members condemning the hijacking ofthe Achille L a ~ l r oand generally'terrorism in all its forms, whenever and by whomever committed: 9 October 1985,
S117554,24 ILM, 1985, p. 1656.
Ix7

'"
'"

T H E U S E O F F O R C E B Y STATES

1051

constitute threats to international peace and security', and in resolution
1070 (1996) adopted with regard to Sudan it reaffirmed that 'the suppression of acts of international terrorism, including those in which states
are involved, is essential for the maintenance of international peace andsecurity'. '92
It was, however, the 11 September 2001 attack upon the World Trade
Center that moved this process onto a higher level. In resolution 1368
(2001) adopted the following day, the Council, noting that it was 'Determined to combat by all means threats to international peace and security
caused by terrorist attack', unequivocally condemned the attack and declared that it regarded such attacks 'like any act of international terrorism,
as a threat to international peace and security'.'" Resolution 1373 (2001)
reaffirmed this proposition and the need to combat by all means in accordance with the Charter, threats to international peace and security
caused by terrorist acts.lg4Acting under Chapter VII, the Council madea series of binding decisions demanding inter alia the prevention andsuppression of the financing of terrorist acts, the criminalisation of wilfulprovision or collection of funds for such purposes and the freezing offinancial assets and economic resources of persons and entities involvedin terrorism. Further, states were called upon to refrain from any support
to those involved in terrorism and take action against such persons, and to
co-operate with other states in preventing and suppressing terrorist acts
and acting against the perpetrators. The Council also declared that acts,
methods and practices of terrorism were contrary to the purposes andprinciples of the UN and that knowingly financing, planning and inciting terrorist acts were also contrary to the purposes and principles of the
UN. Crucially, the Council established a Counter-Terrorism Committee
to monitor implementation of the resolution. States were called upon toreport to the Committee on measures they had taken to implement theresolution.
In resolution 1377 (2001), the Council, in addition to reaffirming earlier
propositions, declared that acts of international terrorism 'constitute one'" See also resolution 1189 (1998), concerning the boillbiilgs of the US Eillbassies in East
Africa, and resolution 1269 (1999), which reaffirms many ofthe points made in the 1994
General Asseillbly Declaration.
See further above, p. 1027, with regard to recognition of the right to self-defence in thiscontext.
'94 Note also the condemnation of the terrorist bombing in Bali in October 2002: see resolutioil 1438 (2002); of the taking of hostages in ~Moscowin October 2002 referred to as aterrorist act: see resolution 1440 (2002); and of the terrorist attacks in Kenya in November
2002: see resolution 1450 (2002).

'"

1052

I N T E R N A T I O N A L LAWof the most serious threats to international peace and security in thetwenty-first century' and requested the Counter-Terrorism Committee toassist in the promotion of best-practice in the areas covered by resolution
1373, including the preparation of model laws as appropriate, and to
examine the availability of various technical, financial, legislative andother programmes to facilitate the implementation of resolution 1373."'
By March 2003, the Committee had received a total of 328 reports, andhad reviewed and responded to 226 of them. Seven states had not yet
submitted a report. Thirty-nine states were over three months late insubmitting a second report.'96
In addition to UN a ~ t i v i t i e s , a' ~number~of regional instruments condemning terrorism have been adopted. These include the European Convention on the Suppression of Terrorism, 1977;~"the South Asian Association for Regional Co-operation Regional Convention on Suppressionof Terrorism, 1987; the Arab Convention for the Suppression of Terrorism, 1998; the Convention of the Organisation of the Islamic Conference
on Combating International Terrorism, 1999 and the Organisation ofAmerican States Inter-American Convention against Terrorism, 2002."'
In addition, the Organisation on Security and Co-operation in Europe
adopted a Ministerial Declaration and Plan of Action on Combating Terrorism, in 2 0 0 1 . ~ ~ ~Coupled with the increase in international action to suppress international terrorism has been a concern that this should be accomplishedin conformity with the principles of international human rights law
and international humanitarian law. This has been expressed by the UN
See also resolution 1456 (2003),which inter alia called upon the Counter-Terrorism Committee to i n t e n s i ~ i tworksthrough reviewing states' reports and facilitating international
assistance and co-operation.
" 6 See the website of the Committee, http://wuw.un.org/Docs/sc/committees/l373/ Notealso the case of Boudellaa et al. v. Bosnia and Herzegovina and the Federation of Bosnia
and Herzegovina, Judgment of 11 October 2002, Human Rights Chamber of Bosnia andHerzegovina, paras. 93-8. See further above, chapter 7, p. 353.
19' See also e.g. the statement by the UN Committee on the Elimination of Racial Discrimination of 8 March 2002 condemning the 11 September attacks and affirming that all actsof terrorism were contrary to the UN Charter and human rights instruments, A157118,
p p 106-7.
'" Note that a Protocol amending the Convention was adopted by the Committee of
Ministers of the Council of Europe in February 2003. This incorporates new offences
into the Convention, being those referred to in the international conventions adopted
after 1977.
Note also the establishment of the Inter-American Committee Against Terrorisin in 1999,
AFIRes. 1650 (XXIX-0199).
'0° See http://~w.osce.orgidocs/english/l990-l999/n~cs/9b~1chOle.htm.
19?

'"

T H E U S E O F F O R C E B Y STATES

lo53

secretary-~eneral,~"UN human rights organs202and by regional bodies. The Council of Europe adopted international guidelines on human~
the Interrights and anti-terrorism measures on 15 July 2 0 0 2 , ~ 'while
American Commission on Human Rights adopted a Report on Terrorism
and Human Rights in October 2002."~
Suggestions for further reading
I. Brownlie, Internatiorzal Law arzd the Use of Force by States, Oxford, 1963
Y. Dinstein, War, Aggression and Self-Defence, 3rd edn, Cambridge, 2001
T. M. Franck, Kecourse to Force, Cambridge, 2002
C. Gray, International Law and the Use of Force, Oxford, 2000
See Report of the Secretary-General on the Lthrk of the Organisation, Al5711,2002, p. 1,
where the Secretary-General stated that, 'I firmly believe that the terrorist menace must be
suppressed, but states must ensure that counter-terrorist measures do not violate humanrights.''02 See e.g. the statement of the Committee on the Elimination of Racial Discrimination of
8 March 2002, ,4157118, pp. 106-7, and the statement by the Coillmittee against Tortureof 22 November 2001, CATlClXXVIIlMisc.7. Note also that on 27 March 2003, the legal
expert of the Counter-Terrorism Committee briefed the UN Human Rights Committee:
see UN Press Release of that date.
'03 See Co~ulcilof Europe, 369a (2002).
'04 OEAISer.LIVIII.116, Doc. 5 rev. 1 corr.

International humanitarian law

In addition to prescribing laws governing resort to force (jus ad bellurn),international law also seeks to regulate the conduct of hostilities (jus in
bello). These principles cover, for example, the treatment of prisoners ofwar, civilians in occupied territory, sick and wounded personnel, prohibited methods of warfare and human rights in situations of conflict.'

Development
The law in this area developed from the middle of the nineteenth century.
In 1864, as a result of the pioneering work of Henry ~ u n a n t , b h ohad
been appalled by the brutality of the battle of Solferino five years earlier,the Geneva Convention for the Amelioration of the Condition of the
Wounded in Armies in the Field was adopted. This brief instrument wasrevised in 1906. In 1868 the Declaration of St Petersburg prohibited theuse of small explosive or incendiary projectiles. The laws of war were
codified at the Hague Conferences of 1899 and 1907.~
See e.g. L. Green, The Contemporary Law of Arrned Conflict, 2nd edn, Manchester, 2000;
I. Detter, The Latv of War, 2nd edn, Cambridge, 2000; G. Best, Hcfrnai~ityin Warfare,London, 1980, and Best, War and Law Since 1945, Oxford, 1994; A. P. V. Rogers, Latv on
the Battlefield, Manchester, 1996; Handbook of Htntzanitarian Law in Armed Cotlflict (ed.
D. Fleck), Oxford, 1995; Studies and Essays on International Humanitarian Law and Red
Cross Principles (ed. C. Swinarski), Dordrecht, 1984; The Netv Hunlanitariatz Law ofArttzed
Conflict (ed. A. Cassese), Naples, 1979; G. Draper, 'The Geneva Convention of 1949: 114
HR, p. 59, and Draper 'Implementation and Enforcement ofthe Geneva Conventions and of
the two Additional Protocols: 164 HR, 1979,p. 1; F. Kalshoven, The Latvof Warfare, Leiden,
1973; h1. Bothe, K. Partsch and W. Solf, LVeivRtrlesfor Victims ofArrtzed Conflict, The Hague,
1982, and 1. Pictet, Humanitarian Law and the Protectiorl of War Victims, Dordrecht, 1982.
See also Docurnents on tlze Laws of War (ed. A. Roberts and R. Guelff), 3rd edn, Oxford,
2000; Nguyen Quoc Dinh, P. Daillier and A. Pellet, Droit Irlterrlatiorial Public, 7th edn,
Paris, 2002, p. 962; T. Meron, 'The Humanisation of Humanitarian Law', 94 AIIL, 2000, p.
239, and C. Rousseau, Le Droit des Conflits Armes, Paris, 1983.
* See e.g. C. Moorehead, Dunant's Dream, London, 1998.
See e.g. Green, Contemporary Latv, chapter 2, and The Centennial of the Fir.ct International
Peace Conference (ed. F. Kalshoven), The Hague, 2000. See also Syinposium on the Hague

I N T E R N A T I O N A L H U M A N I T A R I A N LAW

lo55

A series of conventions were adopted at these conferences concerning
land and naval warfare, which still form the basis of the existing rules.
It was emphasised that belligerents remained subject to the law of nations and the use of force against undefended villages and towns was
forbidden. It defined those entitled to belligerent status and dealt withthe measures to be taken as regards occupied territory. There were also
provisions concerning the rights and duties of neutral states and persons in case of war,4 and an emphatic prohibition on the employmentof 'arms, projectiles or material calculated to cause unnecessary suffering'. However, there were inadequate means to implement and enforce
such rules with the result that much appeared to depend on reciprocal behaviour, public opinion and the exigencies of moralee5A numberof conventions in the inter-war period dealt with rules concerning thewounded and sick in armies in the field and prisoners of war.6 Suchagreements were replaced by the Four Geneva 'Red Cross' Conventionsof 1949 which dealt respectively with the amelioration of the conditionof the wounded and sick in armed forces in the field, the amelioration of
the condition of 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. The Fourth Convention was an innovation anda significant attempt to protect civilians who, as a result of armed hostilities or occupation, were in the power of a state of which they were notnationals.
The foundation of the Geneva Conventions system is the principle that
persons not actively engaged in warfare should be treated humanely.' A
Peace Conferences, 94 AJIL, 2000, p. 1. The Nuremberg Tribunal regarded Hague Convention IV and Regulations on the Laws and Customs of War on Land, 1907 as declaratory ofcustomary law: see 41 AJIL, 1947, pp. 172,248-9. See also the Report of the UN SecretaryGeneral on the Statute for the Yugosla~~
War Crimes Tribunal, Security Council resolutions
808 (1993) and 823 (1993), S125704 and 32 ILM, 1993, pp. 1159, 1170, and the Advisory
Opinion of the International Court of Justice in Legality of the Threat or Use of Nuclear
Weapons, ICJ Reports, 1996, pp. 226,258; 110 ILR, p. 163.
See S. C. Neff, The Rights and Dtlries ofNetlrrals, Manchester, 2000.
' Note, however, the Martens Clause in the Preamble to the Hague Convention concerning
the Laws and Customs of War on Land, which provided that 'in cases not included in theRegulations.. .the inhabitants and the belligerents remain under the protection and therule of the principles of the law of nations, as they result from the usages established among
civilised peoples from the laws of humanity and the dictates of the public conscience:
See e.g. the 1929 Conventions, one revising the 1864 and 1906 instruments on wounded
and sick soldiers, the other on the treatment of prisoners of war.
See, for example, article l(2) of Additional Protocol I, 1977, which provides that, 'In casenot covered by this Protocol or by other international agreements, civilians and combatants

'

1056

I N T E R N A T I O N A L LAW

number of practices ranging from the taking of hostages to torture, illegal
executions and reprisals against persons protected by the Conventions
are prohibited, while a series of provisions relate to more detailed points,
such as the standard of care of prisoners of war and the prohibition ofdeportations and indiscriminate destruction of property in occupied territory. In 1977, two Additional Protocols to the 1949 Conventions werea d ~ p t e dThese.~built upon and developed the earlier Conventions. The
International Court of Justice has noted that the 'Law of the Hague', dealing primarily with inter-state rules governing the use of force or the 'laws
and customs of war' as they were traditionally termed, and the 'Law ofGeneva', concerning the protection of persons from the effects of armed
conflicts, 'have become so closely interrelated that they are considered
to have gradually formed one single complex system, known today asinternational humanitarian law'.9

The scope of protection under the Geneva Conventions system
The rules of international humanitarian law seek to extend protection toa wide range of persons. The basic distinction drawn has been between
combatants and those who are not involved in actual hostilities. The
Geneva Conventions of 1949 for the protection of war victims, as noted,
cover the wounded and sick in land warfare; the wounded, sick andshipwrecked in warfare at sea; prisoners of war; and civilians. Common
article 2 provides that the Conventions 'shall apply to all cases of declared
war or of any other armed conflict which may arise between two or moreof the High Contracting Parties even if the state of war is not recognisedby them.. . [and] to all cases of partial or total occupation of theterritory of a High Contracting Party, even if the said occupation meetswith no armed resistance'. The rules contained in these Conventions
cannot be renounced by those intended to benefit from them, thus
remain under the protection and authority of the principles of international law derived
from established custom, from the principles of humanity and from the dictates of public
conscience.'
See e.g. Swinarski, Studies and Essays, part B, and Draper, 'Implementation and Enforcement: See also B. Wortley, 'Observations on the Revision of the 1949 Geneva "Red Cross"
Conventions: 54 BYIL, 1983, p. 143, and G. Aldrich, 'Prospects for US Ratification of
Additional Protocol I to the 1949 Geneva Conventions: 85 ATIL, 1991, p. 1.
See the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ
Reports, 1996, pp. 226, 256; 110 ILR, p. 163. The Court also noted that '[tlhe provisionsof the Additional Protocols of 1977 give expression and attest to the unity and complexityof that law', ibid.

I N T E R N A T I O N A L H U M A N I T A R I A N LAW

lo57

precluding the possibility that the power which has control over them
may seek to influence the persons concerned to agree to a mitigation ofprotection.10
The First Geneva Convention concerns the Wounded and Sick on Landand emphasises that members of the armed forces and organised militias,
including those accompanying them where duly authorised," 'shall be
respected and protected in all circumstances'. They are to be treated humanely by the party to the conflict into whose power they have fallen on
a non-discriminatory basis and any attempts upon their lives or violence
to their person is strictly prohibited. Torture or biological experimentation is forbidden, nor are such persons to be wilfully left without medical
assistance and care.12The wounded and sick of a belligerent who fall into
enemy hands are also to be treated as prisoners of ware1' Further, the parties to a conflict shall take all possible measures to protect the wounded
and sick and ensure their adequate care and to 'search for the dead andprevent their being despoiled'.14 The parties to the conflict are to record
as soon as possible the details of any wounded, sick or dead persons of
the adversary party and to transmit them to the other side through particular means." This Convention also includes provisions as to medical
units and establishment, noting in particular that these should not be
attacked,'' and deals with the recognised emblems (i.e. the Red Cross and
Red Crescent).17
The Second Geneva Convention concerns the Condition of Wounded,
Sick and Shipwrecked Members of Armed Forces at Sea and is very similar
to the First Convention, for instance in its provisions that members of thearmed forces and organised militias, including those accompanying themwhere duly authorised, and who are sick, wounded or shipwrecked are to
be treated humanely and cared for on a non-discriminatory basis, and that
' O See article 7 of the first three Conventions and article 8 of the fourth. Note that Security

Council resolution 1472, adapted under Chapter VII on 28 March 2003, called on 'all
parties concerned' to the Iraq conflict of March-April 2003 to abide strictly by their
obligations under international law and particularly the Geneva Conventions and theHague Regulations, 'including those relating to the essential civilian needs of the peopleof Iraq'.
l 1 See article 13.
l 2 Article 12. See also Green, Armed Conflict, chapter 11.
l3 Article 14. Thus the provisions of the Third Geneva Convention will apply to them: see
below: p. 1058.
'%rticle 15.
l5 Article 16 and see article 122 of the Third Geneva Convention.
l6 Article 19, even if the personnel of the unit or establishment are armed or otherwise
protected, article 22. Chapter IV concerns the treatment of medical personnel.
l 7 Chapter VII. This also refers to the Red Lion and Sun that used to be used by Iran, but not
to the Red Shield of David used by Israel: see e.g. Detter, Law of War, p. 293.

1058

I N T E R N A T I O N A L LAW

attempts upon their lives and violence and torture are prohibited.18 The
Convention also provides that hospital ships may in no circumstances
be attacked or captured but respected and protected.19 The provisions
in these Conventions were reaffirmed in and supplemented by Protocol
I, 1977, Parts I and 11. Article 1(4), for example, supplements common
article 2 contained in the Conventions and provides that the Protocol is
to apply in armed conflicts in which peoples are fighting against colonial
domination and alien occupation and against racist regimes as enshrinedin the UN Charter and the Declaration on Principles of InternationalLaw, 1970.
The Third Geneva Convention of 1949 is concerned with prisoners ofwar, and consists of a comprehensive code centred upon the requirementof humane treatment in all c i r c ~ m s t a n c e sThe
. ~ ~ definition of prisonersof war in article 4, however, is of particular importance since it has been
regarded as the elaboration of combatant status. It covers members of thearmed forces of a party to the conflict (as well as members of militias andother volunteer corps formin g part of such armed force) and members ofother militias andvolunteer corps, including those of organised resistancemovements, belonging to a party to the conflict providing the following
conditions are fulfilled: (a) being commanded by a person responsible forhis subordinates; (b) having a fixed distinctive sign recognisable at a distance; (c) carrying arms openly; (d) conducting operations in accordancewith the laws and customs o f ~ a r . This~ l article reflected the experience of
the Second World War, although the extent to which resistance personnel
were covered was constrained by the need to comply with the four conditions. Since 1949, the use of guerrillas spread to the Third World andthe decolonisation experience. Accordingly, pressures grew to expand thedefinition of combatants entitled to prisoner ofwar status to such persons,
who as practice demonstrated rarely complied with the four conditions.
States facing guerrilla action, whether the colonial powers or others suchas Israel, naturally objected. Articles 43 and 44 of Protocol I, 1977, provide that combatants are members of the armed forces of a party to an
Articles 12 and 13. See also Green, Armed Conflict, chapter 11.
l9 Chapter 111.See, with regard to the use of hospital ships in the Falklands conflict, H. Levie,'The Falklands Crisis and the Laws ofwar' in The Falklands War (eds. A. R. Coll and A. C.
Arend), Boston, 1985, pp. 64, 67-8. Chapter IV deals with medical personnel, Chapter V
with medical transports and Chapter ITIwith the emblem: see above, footnote 17.
' O See also the Regulations annexed to the Hague Convention IV on the Laws and Customsof War on Land, 1907, Section I, Chapter 11.
See also the TadiC case, Judgment of the Appeals Chamber of 15 July 1999: see below,
p. 1069.

"

I N T E R N A T I O N A L H U M A N I T A R I A N LAW

lo59

international armed conflict. Such armed forces consist of all organised
armed units under an effective command structure which enforces compliance with the rules of international law applicable in armed conflict.
Article 44(3) further notes that combatants are obliged to distinguishthemselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. When an armed
combatant cannot so distinguish himself, the status of combatant may
be retained provided that arms are carried openly during each military
engagement and during such time as the combatant is visible to the adversary while engaged in a military deployment preceding the launchingof an attack. This formulation is clearly controversial and was the subject of many declarations in the vote at the conference producing thedraft.22
Article 5 also provides that where there is any doubt as to the status ofany person committing a belligerent act and falling into the hands of theenemy, 'such person shall enjoy the protection of the present Convention
until such time as their status has been determined by a competent trib ~ n a l 'This. ~ ~formulation was changed somewhat in article 45 of Protocol
I. This provides that a person who takes part in hostilities and falls into
the power of an adverse party 'shall be presumed to be a prisoner of war
and therefore shall be protected by the Third Convention'.
" See e.g. H. Verthy, Gut.rrzlla et Droit Hzl~nanitaire,2nd edn, Geneva, 1983, and P. Nahlik,'L'Extension du Statut de Combattant a la Lumiere de Protocol I de Geneve de 1977: 164
HR, 1979, p. 171. Note that by article 45 any person taking part in hostilities and falling
into the hands of an adverse party shall be presumed to be a prisoner of war and thus
protected by the Third Geneva Convention of 1949. Where aperson is a mercenary, there isno right to conibatant or prisoner ofwar status under article 47. See also the International
Convention against the Recruitment, Use, Financing and Training of Mercenaries, 1989:
Green, Armed Conflict, pp. 114 ff.
" See also the British Maiznal of LUilitary Law, Part 111, The Law of Land Warfare, London,
1958, para. 132, note 3, and the US Department of Arn~y,Law of Land N'arfare, Field
lManual 27-10, 1956, para. 71(c), (d) detailing what a competent tribunal might be. The
question as to status was raised in the case of persons captured by the US in Afghanistan in
2001-2 and detained at the US military base at Guantanamo Bay, Cuba, which the US holds
on an indefinite lease under an agreement of 1903. Phillips MR in the Abbasi case notedthat it was 'objectionable' that Abbasi, a detainee at Guantanamo Bay, 'should be subject toindefinite detention in territory over which the United States has exclusive control with noopportunity to challenge the legitimacy of his detention before any court or tribunal. It is
important to record that the position may change when the appellate courts in the UnitedStates consider the matter', [2002] EWCA Civ. 1598, para. 66. However, in A1 Odah Khaled
A. F v. USA, the US DC Circuit Court of Appeals, relying upon Johnson v. Eisentrager 339
US 763 (1950),held that the protection of the US Constitution did not extend to aliens notwithin the territorial jurisdiction of the US, decision of 11 March 2003, Case No. 02-5251:
see http:i/la~vs.lp,findlaw.comidci025251a.htinl.

1060

I N T E R N A T I O N A L LAW

The framework of obligations covering prisoners of war is founded
upon the following provisions. Article 13 provides that prisoners of war
must at all times be humanely treated and must at all times be protected,
particularly against acts of violence or intimidation and against 'insults
and public curiosity'. This means that displaying prisoners of war on
television in a humiliating fashion confessing to 'crimes' or criticising
their own government must be regarded as a breach of the onv vent ion.^^Measures of reprisal against prisoners of war are prohibited. Article 14
provides that prisoners of war are entitled in all circumstances to respect
for their persons and their honour.25
Prisoners of war are bound only to divulge their name, date of birth,rank and serial number. Article 17 provides that 'no physical or mental
torture, nor any other form of coercion, maybe inflicted. . . to secure fromthem information of any kind whatever. Prisoners of war who refuse toanswer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.' Once captured, prisoners of war are
to be evacuated as soon as possible to camps situated in an area far enoughfrom the combat zone for them to be out of danger,26while article 23 stipulates that 'no prisoner of war may at any time be sent to, or detained in,areas where he may be exposed to the fire of the combat zone, nor may his
presence be used to render certain points or areas immune from military
operations'." Prisoners of war are subject to the laws and orders of thestate holding them. They may be punished for disciplinary offences andtried for offences committed before capture, for example for war crimes.
They may also be tried for offences committed before capture against thelaw of the state holding them.28Other provisions of this Convention deal
with medical treatment, religious activities, discipline, labour and relations with the exterior. Article 118 provides that prisoners of war shallbe released and repatriated without delay after the cessation of hostilities.
The Convention on prisoners of war applies only to international armedof allied prisoners of war by Iraq in the 1991 Gulf TITar, The
Economist, 26 January 1991, 17. 24, and in the 2003 Gulf War: see the report of thel4 See e.g. the treatment

condemnation by the International Committee of the Red Cross, http://news.bbc.co.uk/
l/hi/~~orld/middle~east/2881187.stm.
" See also article 75 of Protocol I.
26 Article 19.
2' Thus the reported Iraqi practice during the 1991 Gulf War of sending allied prisoners of
war to strategic sites in order to create a 'human shield' to deter allied attacks was clearlya violation of the Convention: see e.g. The Economist, 26 January 1991, p. 24. See also
UKMIL, 62 BYIL, 1991, pp. 678 ff.
Articles 82 and 85. See Green, Armed Conflict, p. 210. See also US r.Aioriega 746 F. Supp.
1506, 1529 (1990); 99 ILR, pp. 143, 171.

I N T E R N A T I O N A L H U M A N I T A R I A N LAW

1061

conflict^,^' but article 3 (which is common to the four Conventions) provides that as a minimum 'p ersons . . . including members of armed forces,
who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances betreated humanely'.
The Fourth Geneva Convention is concerned with the protection ofcivilians in time ~ f w a r . This~ ' marked an extension to the pre-1949 rules,
although limited under article 4 to those persons, 'who, at a given moment and in any manner whatsoever, find themselves, in case of a conflictor occupation, in the hands of a party to the conflict or occupying powerof which they are not nationals'. The Convention comes into operation
immediately upon the outbreak of hostilities or the start of an occupationand ends at the general close of military operation^.^' Under article 50(1)of Protocol I, 1977, a civilian is defined as any person not a ~ o m b a t a n t , ~ ~and in cases of doubt a person is to be considered a civilian. The Fourth
Convention provides a highly developed set of rules for the protectionof such civilians, including the right to respect for person, honour, convictions and religious practices and the prohibition of torture and othercruel, inhuman or degrading treatment, hostage-taking and reprisals.33
The wounded and sick shall be the object of particular protection and re~ p e c andt ~ there~
are various judicial guarantees as to due p r o ~ e s s . ~The'protection of civilians in occupied territories is covered in section I11 ofPart I11 of the Fourth Geneva Convention," but what precisely occupied
territory is maybe open to dispute.j7The situation with regard to the WestBank of Jordan (sometimes known as Judaea and Samaria), for example,
demonstrates the problems that may arise. By article 2, the Convention is
to apply to all cases of 'declared war or of any other armed conflict' and toall cases ofpartial or total occupation 'ofthe territory of a high contracting
See below, p. 1068.
See e.g. Green, Arttzed Conflict, chapters 12 and 15.
Article 6.
As defined in article 4 of the Third Geneva Convention, 1949 and article 43, Protocol I,
1977, above, p. 1058. Note, however, the obligation contained in the Optional Protocol
to the Convention on the Rights of the Child on the involvement of children in armed
conflict, 25 May 2000, to ensure that children under the age of eighteen do not take partin hostilities.
See articles 27-34. The rights of aliens in the territory of a party to a conflict are coveredin articles 35-46.
'"rticle16.
See articles 71-6. See also article 75 of Protocol I, 1977.
36 See also the Regulations annexed to the Hague Convention IV on the Laws and Customsof War on Land. 1907. Section 111.
37 Iraqi-occupied Kuwait in 199O-1 was, of course, a prime example of the situation coveredby this Convention: see e.g. Security Council resolution 674 (1990).
'9

"

j0

''

"

''

1062

I N T E R N A T I O N A L LAW

party'.38Israel has argued that since the West Bank has never been recognised internationally as Jordanian territory,39 it cannot therefore be regarded as its territory to which the Convention would apply. In otherwords, to recognise that the Convention applies would be tantamount torecognition of Jordanian sovereignty over the disputed 1ande4O
Article 47 provides that persons protected under the Convention cannot be deprived in any case or in any manner whatsoever of the benefits
contained in the Convention by any change introduced as a result of theoccupation nor by any agreement between the authorities of the occupied
territory and the occupying power nor by any annexation by the latter ofthe whole or part of the occupied territory. Article 49 prohibits 'individual or mass forcible transfers' as well as deportations of protected persons
from the occupied territory regardless of motive, while the occupying
power 'shall not deport or transfer parts of its own civilian population
into the territoryit occupies'." Other provisions refer to the prohibition offorced work or conscription of protected persons, the destruction of realor personal property, or any alteration of the status of public or judicial
officials.42Article 70 provides that protectedpersons shall not be arrested,
prosecuted or convicted for acts committed or opinions expressed before
the occupation apart from breaches of the laws of war.43 1t is also to be
noted that under article 43 of the Hague Regulations, the occupant 'shalltake all measures in his power to restore, and ensure, as far as possible,
public order and safety, while respecting, unless absolutely prevented, thelaw in force in the country'.
" Note that article 42 of the Hague Regulations, 1907 provides that a territory is considered

occupied when it is 'actually placed under the authority of the hostile army:
It was annexed by the Kingdom of Transjordan, as it then was, in 1949 at the conclusionof the Israeli War of Independence, but this annexation was recognised only by the UK
and Pakistan. See e.g. A. Gerson, Israel, the West Bank and International Law, London,
1978.
Note that Israel does observe the Convention de facto: see e.g. R1. Shamgar, 'The Observation of International Law in the Administered Territories: Israel Yearbook on Hnrnan
Rights, 1977, p. 262, and T. Meron, '\L7est Bank and Gaza', ibid., 1979, p. 108. See also
F. Fleiner-Gerster and H. Meyer, 'New Developments in Humanitarian Law', 34 ICLQ,
1985, p. 267, and E. Cohen, Human Rights in the Israeli-Occupied Territories, Manchester,1985.
4' See criticisms of Israel's policy of building settlements in territories it has occupied since
1967: see e.g. UKMIL, 54 BYIL, 1983, pp. 538-9.
Articles 51,53 and 54. Article 64 stipulates that penal laws remain in force, unless a threat
to the occupier's security, while existing tribunals continue to function. See also Security
Council resolution 1472 (2003) concerning the March-April 2003 military operation bycoalition forces in Iraq.
4' Section IV consists of regulations for the treatment of internees.
'9I N T E R N A T I O N A L H U M A N I T A R I A N LAW

1063

The conduct of hostilities4'
International law, in addition to seeking to protect victims of armed conflicts, also tries to constrain the conduct ofmilitary operations in a humanitarian fashion. In analysing the rules contained in the 'Law of the Hague',it is important to bear in mind the delicate balance to be maintained
between military necessity and humanitarian considerations. A principleof long standing, if not always honoured in practice, is the requirement
to protect civilians against the effects of hostilities. As far as the civilian
population is concerned during h~stilities,'~the basic rule formulated inarticle 48 of Protocol I is that the parties to the conflict must at all times
distinguish between such population and combatants and between civilian and military objectives and must direct their operations only against
military objectives. Military objectives are limited in article 52(2) to 'thoseobjects which by their nature, location, purpose or use make an effective
contribution to military action and whose total or partial destruction,
capture or neutralisation, in the circumstances ruling at the time, offers
a definite military advantage', Issues have arisen particularly with regard
to so-called 'dual use' objects such as bridges, roads, power stations andso forth and care must be taken to interpret these so that not every object
used by military forces becomes a military target, especially in view of
the actual terms used in article 52(2) that such objects make 'an effective
contribution' to military action and offer a 'definite military advantage'.46
Article 51 provides that the civilian population as such, as well as individual civilians, 'shall not be the object of attack. Acts or threats ofviolence the primary purpose of which is to spread terror among the
See e.g. Green, Arrned Conflict, Chapters 7 (land),8 (maritime) and 9 (air).See also Rogers,
Law on the Battlefield, and Best, War and Law, pp. 253 ff. As to armed conflicts at sea, seealso The Sun Refno Manual on International Law Applicable to Armed Conflicts at Sea (ed.
L. Doswald-Beck), Cambridge, 1995.
45 Apart from the provisions protecting the inhabitants of occupied territories under the
Fourth Geneva Convention.
46 See, as to the Kosovo conflict 1999, e.g. J. A. Burger, 'International Humanitarian Law
and the Kosovo Crisis', 82 International Review of the Red Cross, 2000, p. 129; P. Rowe,'Kosovo 1999: The Air Campaign', ibid., p. 147, and W.J. Fenrick, 'Targeting and Proportionality during the NATO Bombing Campaign Against Yugoslavia', 12 EIIL, 2001,
p. 489. See also the Review of the NATO Bombing Campaign Against the Federal
Republic of Yugoslavia by a review committee of the Yugoslav War Crimes Tribunal recommending that no investigation be commenced by the Office of the Prosecutor: see
http:i/~~ww.ui~.org/ictyipressreal/iatoO613OO.htm,
and the attempt to bring aspects ofthe bombing campaign before the European Court of Human Rights: see Bankovi? v.
Belgit~m,Judgment of 12 December 2001.
44

1064

I N T E R N A T I O N A L LAW

civilian population are prohibited.' Additionally, indiscriminate attacks4'. ~ ~ 57 provides that in the conduct of military opare p r ~ h i b i t e dArticle
erations, 'constant care shall be taken to spare the civilian population,
civilians and civilian objects'.
Although reprisals involving the use of force are now prohibited ininternationallaw (unless they can be brought within the framework of selfdefence),49belligerent reprisals during an armed conflict may in certain
circumstances be legitimate. Their purpose is to ensure the terminationof the prior unlawful act which precipitated the reprisal and a return tolegality. They must be proportionate to the prior illegal act.'' Modern
law, however, has restricted their application. Reprisals against prisonersof war are prohibited by article 13 of the Third Geneva Convention, while
article 52 of Protocol I provides that civilian objects are not to be theobject of attack or of reprisals.'' Civilian objects are all objects which are
not military objectives as defined in article 52(2).52Cultural objects andplaces ofworship are also protected,j3 as are objects deemedindispensable" These are defined in article 51(4) as: (a) those which are not directed at a specific military

objective; (b) those which employ a method or means of combat which cannot be at a
specific military objective; or (c) those which employ a method or means of combat theeffects of which cannot be limited as required by Protocol I; and consequently in each suchcase are of a nature to strike military objectives and civilians or civilian objects without
distinction.
48 See 21(5) UhTChronicle, 1984, p. 3 with regard to an appeal by the UN Secretary-General
to Iran and Iraq to refrain from attacks on civilian targets. See also Security Council
resolution 540 (1983). The above provisions apply to the use by Iraq in the 1991 G d f War
of missiles deliberately fired at civilian targets. The firing of missiles at Israeli and Saudi
Arabian cities in early 1991 constituted, of course, an act of aggression against a state nota party to that conflict: see e.g. TlleEconornist, 26 January 1991, p. 21.
49 See above, chapter 20, p. 1024.
See e.g. Green, Armed Conflict, p. 123; C. J. Greenwood, 'Reprisals and Reciprocity in the
New Law of Armed Conflict' in Armed Conflict in the New Law (ed. M . A. Meyer), London,
1989, p. 227, and F. Kalshoven, Belligerent Reprisals, Leiden, 1971.
Similarly wounded, sick, shipwrecked, medical and missingpersons; also protected against
reprisal are the natural environment and works or installations containing dangerous
forces: see articles 20 and 53-6.
This provides that military objectives are limited to those objects which in their nature,
location, purpose or use make an effective contribution to military action and whose totalor partial destruction, capture or neutralisation in the circumstances ruling at the timeoffers a definite military advantage.
See article 53. See also the Hague Convention for the Protection of Cultural Property inthe Event of Armed Conflict, 1954 together with the First Protocol, 1954 and the Second
Protocol, 1999. The protections as to cultural property are subject to 'military necessity':see article 4 ofthe 1954 Convention and articles 6 and 7 ofthe 1999 Protocol. Under articles
3 and 22 of the Protocol, protection is extended to non-international armed conflicts: see
below, p. 1072.

'"

"

''

I N T E R N A T I O N A L H U M A N I T A R I A N LAW

1065

to the survival of the civilian population, such as foodstuffs, agriculturalareas for the production of foodstuffs, crops, livestock, drinking water
installations and supplies, and irrigation works, so long as they are notused as sustenance solely for the armed forces or in direct support ofmilitary action.j4Attacks are also prohibited against works or installations
containing dangerous forces, namely dams, dykes and nuclear generating
stations."
The preamble of the St Petersburg Declaration of 1868, banning explosives or inflammatory projectiles below 400 grammes in weight, emphasises that the 'only legitimate object which states should endeavour
to accomplish during war is to weaken the military forces of the enemy',
while article 48 of Protocol I provides that a distinction must at all times
be drawn between civilians and combatants. The right of the parties to anarmed conflict to choose methods ofwarfare is not unconstrained. Article
22 of the Hague Regulations points out that the 'right of belligerents toadopt means of injuring the enemy is not unlimited',j6 while article 23(e)stipulates that it is especially prohibited to 'employ arms, projectiles ormaterial calculated to cause unnecessary ~ u f f e r i n ~ 'Quite. ~ ' how one may
define such weapons is rather controversial and can only be determinedin the light of actual state practice." The balance between military necessity and humanitarian considerations is relevant here. The International
Court in its Advisory Opinion on the Legality of the Threat or Use ofNuclear
weaponsj9 summarised the situation in the following authoritative way:
The cardinal principles contained in the texts constituting the fabric of
humanitarian law are the following. The first is aimed at the protection of
the civilian population and civilian objects and establishes the distinction

Article 54.
" Article 56.
This is repeated in virtually identical terms in article 35, Protocol I.
" See article 35(2) of Protocol I and the Preamble to the 1980 Convention on Conventional
Weapons: see M. N. Shaw,'The UnitedNations Convention on Prohibitions or Restrictions
on the Use of Certain Conventional \t7eapons, 1981: 9 Review of Internatiorlal Studies,
1983, p. 109 at p. 113. Note that 'employment of poisonous weapons or other weapons
calculated to cause unnecessary suffering' is stated to be aviolation of the laws and customsof war by article 3(a) of the Statute of the International Tribunal on War Crimes inFormer Yugoslavia: see Report ofthe UN Secretary-General, S125704 and Security Council
resolution 827 (1993), and see also article 2O(d)e of the Draft Code of Crimes against thePeace and Security of Mankind, Report of the International Law Commission on the Workof its Forty-eighth Session, 1996, Al51110, pp. 111-12.
j8 See e.g. the United States Department of the Army, Field Manual, The Law ofLand Warfare,
FM 27-10, 1956, p. 18, and regarding the UK, The Law o f War on Land, Part I11 of theManual ofhliliturj~Law, 1958, p. 41.
'"CJ
Reports, 1996, pp. 226,257; 110 ILR, p. 163.
?

'4

1066

I N T E R N A T I O N A L LAW

hetween combatants and non-coml>atants;states must never make civilians
the object of attack and must consequently never use weapons that areincapable of distinguishing between civilian and military targets. Accordingt o the second principle, it is prohibited to cause unnecessary suffering to
combdtants; it is accordingly prohibited to use wedpons causing them such
harm or uselessly aggravating their suffering. In application of that second
principle, states d o not have unlimited freedom of choice of means in theweapons they use.

The Court emphasised that the fundamental rules flowing from theseprinciples bound all states, whether or not they had ratified the Hagueand Geneva Conventions, since they constituted 'intransgressible principles of international customary law'.60 At the heart of such rules andprinciples lies the 'overriding consideration of humanity'.6' Whether theactual possession or threat or use of nuclear weapons would be regarded
as illegal in international law has been a highly controversial question,62
although there is no doubt that such weapons fall within the general application of international humanitarian law.63The International Court
has einphasised that, in examining the legality of any particular situation,
the principles regulating the resort to force, including the right to selfdefence, need to be coupled with the requirement to consider also thenorms governing the means and methods of warfare itself. Accordingly,
the types of weapons used and the way in which they are used are alsopart of the legal equation in analysing the legitimacy of any use of force
in international law.64The Court analysed state practice and concluded" Ibid.
ICJ Reports, 1996, pp. 226,257 and 262-3. See also the Corfu Channel case, ICJ Reports,
1949, p p 4,22; 16 AD, p. 155.
See e.g. Shi~nodav. Japan 32 ILR, p. 626.
" Ibid., pp. 259-61. See e.g. International Law, the b~ternational
Court of Justice and Nuclear
Weapons (eds. L. Boisson de Chazournes and P. Sands), Cambridge, 1999; D. Akande,'NuclearM7eapons, Unclear Law?',68 BYIL, 1997, p. 165; Nuclear Weapons and International
La~v(ed.
I . Pogany), Aldershot, 1987; Green,Arn~edConflict,pp. 128 ff., and Green, 'Nuclear
Weapons andthe Law ofArmed Conflict', 17 Denver Journal oflnternational LawandPolicy,
1988,p. 1 ; N. Singh and E. A4cWhinney, Nuclear Weapons artd Contentporary hlternationalLaw, Dordrecht, 1988; G. Schwarzenberger, Legality o f Nuclear Weapons, London, 1957,
and H. Meyrowitz, 'Les Armes Nucleaires et le Droit de la Guerre' in Humanitarian Law
ofArrned Corlflict: Cl~allenges(eds. A. 1. M. Delissen and G. 1. Tanja), Dordrecht, 1991.
64 The Court emphasised, for example, that 'a use of force that is proportionate under thelaw of self-defence, must, in order to be lawful, also meet the requirements of the law
applicable in armed conflict', ICJ Reports, 1996, pp. 226, 245; 110 ILR, p. 163. The Court
also pointed to the applicability of the principle of neutrality to all international armed
conflicts, irrespective ofthe type ofweaponry used, ICJ Reports, 1996, p. 261. See also thehTicaraguacase, ICJ Reports, 1986, pp. 3, 112; 76 ILR, pp. 349,446.

''

I N T E R N A T I O N A L H U M A N I T A R I A N LAW

1067

that nuclear weapons were not prohibited either specifically or by expresspro~ision.~'
Nor were they prohibited by analogy with poisoned gases
prohibited under the Second Hague Declaration of 1899, article 23(a) of
the Hague Regulations of 1907 and the Geneva Protocol of 1 9 2 5 . ~Nor~
were they prohibited by the series of treaties6' concerning the acquisition,
manufacture, deployment and testing of nuclear weapons and the treaties
concerning the ban on such weapons in certain areas of the world.hXNor
were nuclear weapons prohibited as a consequence of a series of General
Assembly resolutions, which taken together fell short of establishing thenecessary opinio juris for the creation of a new rule to that effect.'j9 In so
far as the principles of international humanitarian law were concerned,
the Court, beyond noting their applicability, could reach no conclusion.
The Court felt unable to determine whether the principle of neutralityor the principles of international humanitarian law or indeed the normof self-defence prohibited the threat or use of nuclear weapons.70 Thisrather weak conclusion, however, should be seen in the context of continuing efforts to ban all nuclear weapons testing, the increasing number oftreaties prohibiting such weapons in specific geographical areas and thecommitment given in 1995 by the five declared nuclear weapons states not
to use such weapons against non-nuclear weapons states that are parties
to the Nuclear Non-Proliferation Treaty." Nevertheless, it does seem clearthat the possession of nuclear weapons and their use in extremis and instrict accordance with the criteria governing the right to self-defence are
not prohibited under international law.72'' ICJ Reports, 1986, p. 247.
Ibid., p. 248. Nor by treaties concerning other weapons of mass destruction such as
the Bacteriological Weapons Treaty, 1972 and the Chemical Weapons Treaty, 1993, ibid.,
pp. 248-9.
67 E.g. the Peace Treaties of 10 February 1947; the Austrian State Treaty, 1955; the Nuclear Test
Ban Treaty, 1963; the Outer Space Treaty, 1967; the Treaty of Tlatelolco of 14 February 1967
on the Prohibition of Nuclear Weapons in Latin America; the Nuclear Non-Proliferation
Treaty, 1968 (extended indefinitely in 1995); the Treaty on the Prohibition ofthe Emplacement of Nuclear Il'eapons on the Ocean Floor and Sub-soil, 1971; Treaty of Rarotongo
of 6 August 1985 on the Nuclear Weapons-Free Zone of the South Pacific; the Treatyof Final Settlement with Respect to Germany, 1990; the Treaty on the South East Asia
N~lclearWeapon-Free Zone, 1995 and the Treaty on an African Nuclear Weapon-Free
Zone, 1996.
ICJ Reports, 1996, pp. 226,248-53; 110 ILR, p. 163.
6' ICJ Reports, 1996, pp. 254-5.
' O Ibid., pp. 262-3 and 266.
71 See Security Council resolution 984 (1995).
See also the UK Manual of Military Law, Part 111, section 113 and the US The Law ofLand
Warfare, 1956, s. 35.
66

''

1068

I N T E R N A T I O N A L LAW

A number of specific bans on particular weapons has been imposed.73
Examples would include small projectiles under the St Petersburg formulaof 1868, dum-dum bullets under the Hague Declaration of 1899 and asphyxiating and deleterious gases under the Hague Declaration of 1899
and the 1925 Geneva ~ r o t o c o lUnder. ~ ~ the 1980 Conventional Weapons
Treaty,75Protocol I, it is prohibited to use weapons that cannot be detectedby X-rays, while Protocol I1 (minimally amended in 1996) prohibits theuse of mines and booby-traps against civilians, Protocol I11 the use of
incendiary devices against civilians or against military objectives locatedwithin a concentration of civilians where the attack is by air-delivered
incendiary weapons, and Protocol IV the use of blinding laser weapons.
In 1997, the Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their
Destruction was adopted.
Article 35(3) ofAdditiona1 Protocol I to the 1949 Conventions provides
that it is prohibited to employ methods or means of warfare which areintended, or may be expected, to cause widespread, long-term and severe
damage to the natural envi~onment.'~
Article 55 further states that careis to be taken in warfare to protect the natural environment against suchdamage, which may prejudice the health or survival of the population,
while noting also that attacks against the natural environment by way ofreprisals are prohibited. The Convention on the Prohibition of Military or
Any Other Hostile Use of Environmental Modification Techniques, 1977
prohibits such activities having widespread, long-lasting or severe effects
as the means of destruction, damage or injury to any other state party.
Armed conflicts: international and internal

The rules of international humanitarian law apply to armed conflicts. A
distinction has historically been drawn between international and non73

See e.g. Green, Arnlod Conflict, pp. 133 Sf.

'' See also e.g, the 1972 Convention on the prohibition of the Development, Productionand Stockpiling of Bacteriological Weapons and the 1993 Convention on the Prohibitionof the Development, Production, Stockpiling and Use of Chemical Weapons and Their
Destruction. See 21 (3) Uh'Chronicle, 1984, p. 3 ~vithregard to the use of chemical weapons-- in the Iran-Iraq war.
I'
See Shaw, 'Conventional Weapons: Note article 1 was amended in 2001.
76 See, for example, the deliberate spillage of vast quantities of oil into the Persian Gulf by
Iraq during the 1991 Gulf \trar: see The Economist, 2 February 1991, p. 20. See also Green,
Armed Conflict, p. 138, and Rogers, Law of the Battlefield, chapter 6.

I N T E R N A T I O N A L H U M A N I T A R I A N LAW

1069

international armed conflicts,77founded upon the difference between
inter-state relations, which was the proper focus for international law,and intra-state matters which traditionally fell within the domestic jurisdiction of states and were thus in principle impervious to international
legal regulation. However, this difference has been breaking down in recent decades. In the sphere of humanitarian law, this can be seen in thegradual application of such rules to internal armed conflicts.78 The notion of an armed conflict itself was raised before the Appeals Chamberof the International Tribunal on War Crimes in Former Yugoslavia in its
decision on jurisdictional issues in the TadiC case.7' It was claimed thatno armed conflict as such existed in the Former Yugoslavia with respect
to the circumstances of the instant case since the concept of armed conflict covered only the precise time and place of actual hostilities and theevents alleged before the Tribunal did not take place during hostilities.
The Appeals Chamber of the Tribunal correctly refused to accept a narrow geographical and temporal definition of armed conflicts, whether
international or internal. It was stated that:80
an armed conflict exists whenever there is a resort to armed force bet~.veen
states or protracted armed violence between governmental authorities andorganised armed groups or between such groups within a state. International humanitarian law applies from the initiation of such armed conflicts
and extends beyond the cessation of hostilities until a general conclusion ofpeace is reached; or, in the case of internal conflicts, a peaceful settlement isachieved. Until that moment, international humanitarian law continues toapply in the whole territory of the warring states or, in the case of internal
conflicts, the whole territory under the control of a party, whether or not
actual combat takes place.

This definition arose in the specific context of the Former Yugoslavia,
where it was unclear whether an international or a non-internationalarmed conflict or some kind of mixture of the two was involved. This wasimportant to clarify since it would have had an effect upon the relevant
applicable law. The Security Council did not as such classify the nature of
the conflict, simply condemning widespread violations of international
humanitarian law, including mass forcible expulsion and deportation ofcivilians, imprisonment and abuse of civilians and deliberate attacks upon
77 See e.g. Green, Armed Coitflict, chdpter 3.

78

See further below, p. 1072.
Ibid., p. 488.

' v a s e No. IT-94-1-AR 72; 105 ILR, pp. 453,486 ff.

1070

I N T E R N A T I O N A L LAW

non-combatants, and calling for the ~essation.~'The Appeals Chamberconcluded that 'the conflicts in the former Yugoslavia have both internal and international aspects:" Since such conflicts could be classified
differently according to time and place, a particularly complex situation
was created. However, many of the difficulties that this would have created
were mitigated by an acceptance of the evolving application of humanitarian law to internal armed c ~ n f l i c t s . ~ q hdevelopment
ishas arisen partly
because ofthe increasing frequency ofinternal conflicts andpartlybecauseof the increasing brutality in their conduct. The growing interdependenceof states in the modern world makes it more and more difficult for thirdstates and international organisations to ignore civil conflicts, especiallyin view of the scope and insistence of modern communications, while theevolution of international human rights
law has contributed to the end of
the belief and norm that whatever occurs within other states is the concernof no other state or p e r ~ o n . 'Accordingly,~
the international community is
now more willing to demand the application of international humanitarian law to internal conflict^.^' In the TadiC case, the Appeals Chamber (inconsidering jurisdictional issues) concluded that article 3 of its Statute,which gave it jurisdiction over 'violations of the laws or customs ~ f w a r ' , ~ ~provided it with such jurisdiction 'regardless of whether they occurred
within an internal or an international armed ~onflict'.~'See e.g. Security Council resolution 771 (1992).See also C. Gray, 'Bosnia andHerzego~7ina:
Civil War or Inter-State Conflict? Characterisation and Consequences', 67 BYIL, 1996,
p. 155.
" Case No. IT-94-1-AR; 105 ILR, pp. 453,494.
Ibid., pp. 495 ff.
84 See e.g. General Assembly resolutions 2444 (XXV) and 2675 (XXV), adopted in 1970
unanimously.
See e.g. Security Council resolutions 788 (1992), 972 (1995) and 1001 (1995) with regard
to the Liberian civil war; Security Council resolutions 794 (1992) and 814 (1993) withregard to Somalia; Security Council resolution 993 (1993) with regard to Georgia andresolution 1193 (1998) with regard to Afghanistan.
S6 A historic term now subsumed within the concept of international humanitarian law.
Article 3 states that such violations shall include, but not be limited to, the employment of
poisonous weapons or other weapons calculated to cause unnecessary suffering; wanton
destruction of cities, towns or villages or devastation not justified by military necessity;
attack or bombardment of undefended towns, villages or buildings; seizure of or destruction or wilfi~ldamage done to institutions dedicated to religion, charity and education,
the arts and sciences, historic monuments and works of art and science; and plunder ofpublic or private property.
" Case No. IT-94-1-AR 72; 105 ILR, pp. 453, 504. See also the Ftlrundiija case, Case
No. IT-95-1711 (decision of Trial Chamber 11, 10 December 1998); 121 ILR, pp. 213,
253-4.

''

I N T E R N A T I O N A L H U M A N I T A R I A N LAW

1071

In its decision on the merits, the Appeals Chamber noted that,
It is indisputable that an armed conflict is international if it takes place
between two or more States. In addition, in case ofan internal armed conflictbreaking out o n the territory of a State, it may become international (or,depending upon the circumstances, be international in character alongside
an internal armed conflict) if (i) another State intervenes in that conflictthrough its troops, or alternatively if (ii) some of the participants in theinternal armed conflict act o n behalf of that other State.88

The Appeals Chamber concluded that until 19 May 1992 with the open
involvement of the Federal Yugoslav Army, the conflict in Bosnia had beeninternational, but the question arose as to the situation when this army
was withdrawn at that date. The Chamber examined the legal criteria
for establishing when, in an armed conflict which is prima facie internal,
armed forces may be regarded as acting on behalf of a foreign power thus
turning the conflict into an international one. The Chamber examined
article 4 of the Third Geneva Convention which defines prisoner of war
statuss9 and noted that states have in practice accepted that belligerents
may use paramilitary units and other irregulars in the conduct of hostilities only on the condition that those belligerents are prepared to takeresponsibility for any infringements committed by such forces. In orderfor irregulars to qualify as lawful combatants, control over them by a party
to an international armed conflict was required and thus a relationship ofdependence and allegiance. Accordingly, the term 'belonging to a party
to the conflict' used in article 4 implicitly refers to a test of control.90
In order to determine the meaning of 'control', the decision of theInternational Court in the Nicaragua case was examined. In that case it washeld that in order to establish the responsibility ofthe US over the 'Contra'
rebels, it was necessary to show that the state was not only in effective
control of a military or paramilitary group, but also that there was effective
control of the specific operation in the course of which breaches may havebeen committed. In order to establish that the US was responsible for 'acts
contrary to human rights and humanitarian law' allegedly perpetrated
by the Nicaraguan Contras, it was necessary to prove that the US had
specifically 'directed or enforced' the perpetration of those acts.9' The
Appeals Chamber, however, did not accept this approach and preferreda rather weaker test, concluding that in order to attribute the acts of a
Judgment of 15 July 1999, para. 84.

" See above, p. 1058.

90 Judgment of 15 July 1999, paras. 94 and 95.
91

ICJ Reports, 1986, pp. 14,64-5; 76 ILR, p. 349.

1072

I N T E R N A T I O N A L LAW

military or paramilitary group to a state, it must be proved that the state
wields overall control over the group, not onlyby equipping and financing
the group, but also by co-ordinating or helping in the general planningof its military activity. However, it was not necessary that, in addition,
the state should also issue, either to the head or to members of the group,
instructions for the commission of specific acts contrary to international
Accordingly, the line between international and internal armed conflicts may be drawn at the point at which it can be shown that a foreign stateis either directly intervening within a civil conflict or exercising 'overall
control' over a group that is fighting in that conflict.
The Appeals Chamber in the Kunarac case discussed the issue of themeaning of armed conflict where the fighting is sporadic and does notextend to all of the territory of the state concerned. The Chamber heldthat the laws of war would apply in the whole territory of the warring
states or, in the case of internal armed conflicts, the whole territory under
the control of a -party. to the conflict, whether or not actual combat takes
place there, and continued to apply until a general conclusion of peace or,in the case of internal armed conflicts, a peaceful settlement is achieved.
A violation of the laws or customs of war may therefore occur at a time
when and in a place where no fighting is actually taking place.93
Non-international armed conflict9"
Although the 1949 Geneva Conventions were concerned with international armed conflicts, common article 3 did provide in cases of noninternational armed conflicts occurring in the territory of one of theparties a series of minimum guarantees for protecting those not taking anactive part in hostilities, including the sickand ~ o u n d e d .Preciselywhere~'
this article applied was difficult to define in all cases. Non-internationalarmed conflicts could, it may be argued, range from full-scale civil wars
to relatively minor disturbances. This poses problems for the state in
92

Judgment of 15 July 1999, paras. 131 and 145.

" Decision of 12 June 2002, Case No. IT-96-23 and IT-96-2311, para. 57.

Tllc Law of Internal Arrrled Corgict, Cambridge, 2002; Green, Arrrled
Conflict, chapter 19, and T. Meron, H14rnanRights in Irlternal Strife, Cambridge, 1987.
95 Note that the Court in the Nicaragua case, ICJ Reports, 1986, pp. 3, 114; 76 ILR, pp. 349,
448, declared that coininon article 3 also applied to international arined conflicts as a'minimum yardstick, in addition to the more elaborate rules which are also to apply tointerilatioilal conflicts'.
94 See e.g. L. Moir,I N T E R N A T I O N A L H U M A N I T A R I A N LAW

lo73

question which may not appreciate the political implications of the application of the Geneva Conventions, and the lack of the reciprocity element
due to the absence of another state adds to the problems of enforcement.
Common article 3 lists the following as the minimum safeguards:
1. Persons taking n o active part in hostilities to be treated humanely
without any adverse distinction based o n race, colour, religion or faith, sex,
birth or wealth.
To this end the following are prohibited:a) violence to life and person, in particular murder, cruel treatment andtorture;b) hostage-taking;c) outrages up011 human dignity, in particular humiliating and degrading
treatment;d) the passing of sentences and the carrying out of executions in the absenceof due process.

2. The wounded and the sick are to be cared for.

Common article 396was developed by Protocol 11, 1 9 7 7 , ~which~applies by virtue of article 1 to all non-international armed conflicts whichtake place in the territory of a state party between its armed forces anddissident armed forces. The latter have to be under responsible commandand exercise such control over a part of its territory as to enable them tocarry out sustained and concerted military operations and actually implement Protocol 11. It does not apply to situations of internal disturbances
and tensions, such as riots, isolated and sporadic acts of violence andother acts of a similar nature, not being armed conflicts. The Protocol
lists a series of fundamental guarantees and other provisions calling forthe protection of non-combatants. In particular, one may note the prohibitions onviolence to the life, health and physical and mental well-being of
persons, including torture; collective punishment; hostage-taking; acts ofterrorism; outrages upon personal dignity, including rape and enforced" The International Court in the Nicaragua case stated that the rules contained in common

article 3 reflected 'elementary considerations of humanity: ICJ Reports, 1986,pp.14, 114;
76 ILR, p. 349. See also the Tadit case, Case No. IT-94-1-AR; 105 ILR, pp. 453, 506.
97 Note, of course, that by article l(4) of Protocol I, 1977, international armed conflicts are
now deemed to include wars against colonial domination, alien occupation and racist
regimes: see D. Forsyth, 'Legal Management of International War: 72 AJIL, 1978, p. 272.
Note also the UK view that 'a high level of intensity of military operations' is required
regarding Protocol I so that the Northern Ireland situation, for example, would not becovered: see 941 HC Deb., col. 237.

lo74

I N T E R N A T I O N A L LAW

prostitution; and pillage.98 Further provisions cover the protection ofchildren;99 the protection of civilians, including the prohibition of attacks on works or installations containing dangerous forces that mightcause severe losses among civilians;loOthe treatment of civilians, including their displa~ement;'~'and the treatment ofprisoners and detainees,lo2
and the wounded and sick.lo3
The Appeals Chamber in its decision on jurisdiction in the Tadii- casenoted that international legal rules had developed to regulate internal
armed conflict for a number of reasons, including the frequency of civil
wars, the increasing cruelty of internal armed conflicts, the large-scale
nature of civil strife making third-party involvement more likely andthe growth of international human rights law. Thus the distinction between inter-state and civil wars was losing its value so far as humanbeings were c ~ n c e r n e d . Indeed,'~~
one of the major themes of international humanitarian law has been the growing move towards the rules ofhuman rights
law and vice versa.lO' There is a common foundation in theprinciple of respect for human dignity.'06
The principles governing internal armed conflicts in humanitarian law
are becoming more extensive, while the principles of international humanrights law are also rapidly evolving, particularly with regard to the fundamental non-derogable rights which cannot be breached even in timesof public emergency.lo7This area of overlap was recognised in 1970 in
98 See article 4.

99

Article 6.

loo Article 15.

'O'

Article 17.

lo'Article 5.

ln3
Article 10. Note that the Rwanda l i a r Crimes Tribunal has jurisdiction to try violations ofcommon article 3 and Protocol 11. These are defined in article 4 of its Statute as including:'(a) Violence to life, health and physical or mental well-being of persons, in particularmurder as well as cruel treatment such as torture, mutilation or any form of corporalpunishment; (b) Collective punishments; (c) Taking of hostages; (d) Acts of terrorism;(e) Outrages upon personal dignity, in particdar humiliating and degrading treatment,
rape, enforced prostitution and any form of indecent assault; (f) Pillage; (g) The passingof sentences and the carrying out of executions without previous judgment pronounced
by a regularly constituted court, affording all the judicial guarantees which are recognized
as indispensable by civilised peoples; and (h) Threats to commit any of the foregoing acts.'
See also article 8(c) of the Rome Statute of the International Criminal Court, 1998.
'04 Case No. IT-94-1-AR; 105 ILR, pp. 453,505 ff. But see Moir, Internal Armed Conflict, pp.
188 ff., and Meron, 'The Continuing Role of Custom in the Formation of International
Humanitarian Law', 90 AJIL, 1996, pp. 238, 242-3.
lo5
See e.g. Moir, hlternal Armed Conflict, chapter 5, and R. Provost, International Human
Rights and Humanitariar~Laiv, Cambridge, 2002.
lo6
See the Furundiija case, 121 ILR, pp. 213,271.
lo' See e.g, article 15 of the European Convention on Human Rights, 1950; article 4 of theInternational Covenant on Civil and Political Rights, 1966; and article 27 of the InterAmerican Convention on Human Rights, 1969. See also above, chapters 6 and 7.

I N T E R N A T I O N A L H U M A N I T A R I A N LAW

lo75

General Assembly resolution 2675 (XXV) which emphasised that fundamental human rights 'continue to apply fully in situations of armed conflict', while the European Commission on Human Rights in the Cyprus
v. Turkey (First and Second Applications) case declared that in belligerent
operations a state was bound to respect not only the humanitarian law laid
down in the Geneva Conventions but also fundamental human rights.'''The Inter-American Commission of Human Rights in the La Tublada
case against Argentina noted that the most difficult aspect of common
article 3 related to its application at the blurred line at the lower end
separating it from especially violent internal dist~rbances."~It was insituations of internal armed conflict that international humanitarian law
and international human rights law 'most converge and reinforce eachother', so that, for example, common article 3 and article 4 of the InterAmerican Convention on Human Rights both protected the right to lifeand prohibited arbitrary execution. However, there are difficulties in resorting simply to human rights law when issues of the right to life arise incombat situations. Accordingly, 'the Commission must necessarily look
to and apply definitional standards and relevant rules ofhumanitarian law
as sources of authoritative guidance in its resolution' of such issues.110
The Commission returned to the issue in Coard v. U S A and notedthat there was 'an integral linkage between the law of human rights andthe humanitarian law because they share a "common nucleus of nonderogable rights and a common purpose of protecting human life anddignity", and there may be a substantial overlap in the application of thesebodies of law'.'"
However, in addition to the overlap between internal armed conflict
principles and those of human rights law in situations where the level ofdomestic violence has reached a degree of intensity and continuity, there
exists an area of civil conflict which is not covered by humanitarian law
since it falls below the necessary threshold of common article 3 and Protocol 11."~Moves have been underway to bridge the gap between this andlog Report of the Commission of 10 July 1976, paras. 509-10.

~ e ~ oNo.
r t55197, Case 11.137 and OEAISer.LIVIII.98. para. 153.
Ibid., paras. 160-1.
11' Case No. 10.951; 123 ILR, pp. 156, 169 (footnote omitted).
'I2 See A. Hay, 'The ICRC and International Humanitarian Issues: International Review of the
Red Cross, Tan-Feb 1984, p. 3. See also T. Meron, 'Towards a Humanitarian Declaration on
Internal Strife: 78 AJIL, 1984, p. 859; Meron, Human Rights in Internal Strife, and Meron,'On the Inadequate Reach of Humanitarian and Human Rights Law and the Need for a
New Instrument: 77 AJIL, 1983, p. 589, and T. Meron and A. Rosas, 'A Declaration of
Minimum Humanitarian Standards: 85 AJIL, 1991, p. 375.
'OY

'lo

1076

I N T E R N A T I O N A L LAW

the application of international human rights law."3 The International
Committee of the Red Cross has been considering the elaboration of a
new declaration on internal strife. In addition, the UN Sub-Commission
on the Prevention of Discrimination and the Protection of Minorities has~
adopted a Declaration of Minimum Humanitarian ~ t a n d a r d s , " which
is currently under consideration. This Declaration emphasises the prohibition of violence to the life, health and physical and mental well-beingof persons, including murder, torture and rape; collective punishment;
hostage-taking; practising, permitting or tolerating the involuntary disappearance of individuals; pillage; deliberate deprivation of access to necessary food, drinking water and medicine, and threats or incitement tocommit any of these acts.'15 In addition, the Declaration provides interalia that persons deprived of their liberty should be held in recognised
places of detention (article 4); that acts or threats of violence to spreadterror are prohibited (article 6); that all human beings have the inherent
right to life (article 8); that children are to be protected so that, for example, children under fifteen years of age should not be permitted to joinarmed groups or forces (article 10); that the wounded and sick should
be cared for (article 12) and medical, religious and other humanitarian
personnel should be protected and assisted (article 14).l16
Enforcement of humanitarian law1''
Parties to the 1949 Geneva Conventions and to Protocol I, 1977, undertaketo respect and to ensure respect for the instrument in question,11sand todisseminate knowledge of the principles contained therein.l19 A variety"'As to international human rights law, see generally above, chapter 6. Problems centre
upon the situation where humanitarian la~vdoes not apply since the threshold criteria
for applicability have not been reached; where the state in question is not a party to
the relevant instrument; where derogation from the specified standards is involved as aconsequence of the declaration of a state of emergency, and where the party concerned is
not a government: see A. Eide, A. Rosas and T. Meron, 'Combating Lawlessness in Gray
Zone Conflicts Through Minimum Huillanitariail Standards: 89 AJIL,1995, pp. 2 15,217.
' I 4 E1CN.41S~1b.211991155.
See also UN Sub-Commission resolution 1994126, UN Commission on Human Rights resolutioil 1995129 and ElCN.411995181 and 116.
'I5 Article 3.
'I6 See also the Declaration for the Protection of War Victims, 1993, A1481742, Annex.
See e.g. Best, War and Lmv, pp. 370 ff.
'I8 Common article 1.
'I9 See e.g, articles 127 and 144 of the Third and Fourth Geneva Conventions, article 83 ofProtocol I and article 19 of Protocol 11.

"'

I N T E R N A T I O N A L H U M A N I T A R I A N LAW

lo77

of enforcement methods also exist, although the use of reprisals has beenprohibited.lZ0One of the means of implementation is the concept of theProtecting Power, appointed to look after the interests of nationals of one
party to a conflict under the control of the other, whether as prisonersof war or occupied civilians.I2' Sweden and Switzerland performed thisrole during the Second World War. Such a Power must ensure that compliance with the relevant provisions has been effected and that the systemacts as a form of guarantee for the protected person as well as a channelof communication for him with the state of which he is a national. The
drawback of this system is its dependence upon the consent of the parties
involved. Not only must the Protecting Power be prepared to act in thatcapacity, but both the state of which the protected person is a national
and the state holding such persons must give their consent for the system
to operate.12' Since the role is so central to the enforcement and working of humanitarian law, it is a disadvantage for it to be subject to statesovereignty and consent. It only requires the holding state to refuse its cooperation for this structure of implementation to be greatly weakened,leaving only reliance upon voluntary operations. This has occurred on anumber of occasions, for example the Chinese refusal to consent to theappointment of a Protecting Power with regard to its conflict with India
in 1962, and the Indian refusal, of 1971 and subsequently, with regard to
Pakistani prisoners of war in its charge.123Protocol I also provides for an
International Fact-Finding Commission for competence to inquire into
grave breaches12%f the Geneva Conventions and that Protocol or otherserious violations, and to facilitate through its good offices the 'restoration of an attitude of respect' for these instrument^.'^' The parties to aconflict may themselves, of course, establish an ad hoc inquiry into alleged
violations of humanitarian law.'26
It is, of course, also the case that breaches of international law inthis field may constitute war crimes for which universal jurisdiction isSee e.g. articles 20 and 51(h) of Protocol I.
See e.g. Draper, 'Implementation and Enforcement: pp. 13 ff.
'" See articles 8, 8, 8 and 9 of the Four Geneva Conventions, 1949, respectively.
123 Note that the system did operate in the Falklands conflict, with Switzerland acting as
the Protecting Po~verof the UK and Brazil as the Protecting Power of Argentina: see e.g.
Levie, 'Falklands Crisis: pp. 68-9.
See articles 50, 51, 130 and 147 of the four 1949 Conventions respectively and article 85
of Protocol I, 1977.
Article 90, Protocol I, 1977.
Articles 52, 53, 132 and 149 of the four 1949 Conventions respectively.
12'

1078

I N T E R N A T I O N A L LAW

provided.12' Article 6 of the Charter of the Nuremberg Tribunal, 1945
includes as examples of war crimes for which there is to be individual
responsibility the murder, ill-treatment or deportation to slave labourof the civilian population of an occupied territory; the ill-treatment ofprisoners of war; the killing of hostages and the wanton destruction of
cities, towns and villages. Article 3 of the Statute of the Yugoslav War
Crimes Tribunal provides that violations of the laws and customs of war
include: (a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering; (b) wanton destruction of cities,
towns or villages, or devastation not justified by military necessity; (c)attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings; (d) seizure of, destruction or wilful damage
done to institutions dedicated to religion, charity and education, the artsand sciences, historic monuments and works of art and science; and (e)plunder of public or private property.'28
A great deal of valuable work in the sphere of humanitarian law has
been accomplished by the International Red
This indispensableorganisation consists of the International Committee of the Red Cross(ICRC), over 100 national Red Cross (or Red Crescent) societies with a
League co-ordinating their activities, and conferences of all these elements
every four years. The ICRC is the most active body and has a wide-ranging
series of functions to perform, including working for the application of
the Geneva Conventions and acting in natural and man-made disasters.
It has operated in a large number of states, visiting prisoners of war13'
and otherwise functioning to ensure the implementation of humanitarianlaw. It operates in both international and internal armed conflict situations. One of the largest operations it has undertaken since 1948 related to
the Nigerian civil war, and in that conflict nearly twenty of its personnel
were killed on duty. The ICRC has since been deeply involved in the Yugoslav situation and indeed, in 1992, contrary to its usual confidentialityl ? i See e.g. Draper, 'Implementation and Enforcement: pp. 35 ff. Note also that grave breaches

are to be the subject of sanction: see above, chapter 5, p. 235.

'" See also the extensive definition contained in article 8 of the Rome Statute of the In-'"

ternational Criminal Court, 1998. See further above, chapters 5, p. 235, and 12, p. 594,with regard to Tvar crimes, individual criminal responsibility and the establishment of
the Yugoslav and Rwanda War Crimes Tribunals and the International Criminal Court.
See e.g. G. MTilleminand R. Heacock, The Irzterrzational Committee of the Red Cross,
The Hague, 1984, and D. Forsythe, 'The Red Cross as Transnational Movement: 30
Internutioilal Organisution, 1967, y . 607. See also Best, Wul- und Law, pp. 347 ff.
See e.g. articles 126 and 142 of the Third and Fourth Geneva Conventions respectively.

I N T E R N A T I O N A L H U M A N I T A R I A N LAW

lo79

approach, it felt impelled to speak out publicly against the grave breachesof humanitarian law taking place. The organisation has also been involvedin Somalia (where its activities included visiting detainees held by the UNforces), Rwanda, Afghanistan, Sri ~ a n k a ' " and in Iraq. Due to circumstances, the ICRC must act with tact and discretion and in many cases
states refuse their co-operation. It performed a valuable function in theexchange of prisoners after the 1967 and 1973 Middle East wars, although
for several years Israel did not accept the ICRC role regarding the Arabterritories it o ~ c u p i e d . ' ~ ~Conclusion
The ICRC formulated the following principles as a guide to the relevant
legal rules:
1. Persons hors de c o n ~ b aandt those ~ v h do o not take a direct part in hostilities are entitled to respect for their lives and physical and moral integrity.
They shall in all circumstances be protected and treated humanely without any adverse distinctions.
2. It is forbidden to kill or injure an enemy who surrenders or who is llors
de combat.
3. The wounded and sick shall be collected and cared for by the party to
the conflict which has then1 in its power. Protection also covers medical
personnel, establishments, transports and materiel. The emblem of the
red cross (red crescent, red lion and sun) is the sign of such protection
and must be respected.
4. Captured combatants and civilians under the authority of an adverse
party are entitled to respect for their lives, dignity, personal rights andconvictions. They shall be protected against all acts of violence andreprisals. They shall have the right to correspond with their families andto receive relief.
5. Everyone shall he entitled to benefit from fundamental judicial guarantees. No one shall be held 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.
13''"

See e.g. Challenges ofthe Nineties: ICRC Special Report on Activities 1990-1995, Geneva,
1995. Between 1990 and 1994, over half a million prisoners in over sixty countries werevisited by ICRC delegates, ibid.
See generally Annual Report of the ICRC, 1982. See also 'Action by the ICRC in the Eventof Breaches of International Humanitarian Law', Iilterilutional Review ofthe Red Croxs,
March-April 1981, p. 1.

1080

I N T E R N A T I O N A L LAW

6. Parties to a conflict and members of their armed forces do not have an
unlimited choice of methods and means of warfare. It is prohibited to
employ weapons or methods ofwarfare of a nature to cause unnecessary
losses or excessive suffering.
7 . Parties to a conflict shall at all times distinguish between the civilian
population and combatants in order to spare civilian population andproperty. Neither the civilian populations as such nor civilian persons
shall be the object for attack. Attacks shall be directed solely against
military objective^.'^^In addition, the ICRC has published the following statement withregard to non-international armed conflicts:
A. General Rules
1. The obligation to distinguish between combatants and civilians is a
general rule applicable in non-international armed conflicts. It prohibits
indiscriininate attacks.
2. The prohibition of attacks against the civilian population as suchor against individual civilians is a general rule applicable in noninternational armed conflicts. Acts of violence intended primarily to
spread terror ainong the civiliail poyulatioil are also prohibited.
3. The prohibition of superfluous injury or unnecessary suffering is a general rule applicable in non-international armed conflicts. It prohibits,
in particular, the use of means of warfare which uselessly aggravate thesufferings of disabled men or render their death inevitable.
4. The prohibition to kill, injure or capture an adversary by resort to perfidy
is a general rule applicable in non-international armed conflicts; in a
non-international armed conflict, acts inviting the confidence of an
adversary to lead him to believe that he is entitled to, or obliged toaccord protection under the rules ofinternational law applicable in noninternational armed conflicts, with intent to betray that confidence, shallconstitute perfidy.
5. The obligation to respect and protect medical and religious personnel
and medical units and transports in the conduct of military operations
is a general rule applicable in non-international arined conflicts.
6. The general rule prohibiting attacks against the civilian population implies, as a corollary, the prohibition of attacks on dwellings and otherinstallatiolls which are used only by the civilian population.

'" See Inter-nutioilul Review ofthe Red Cross, Sept.-Oct. 1978, p. 247. See also Green, Arined
Conflict, pp. 355-6.

I N T E R N A T I O N A L H U M A N I T A R I A N LAW

1081

7. The general rule prohibiting attacks against the civilian population implies, as a corollary, the prohibition to attack, destroy, remove or renderuseless objects indispensable to the survival of the civilian population.
8. The general rule to distinguish between combatants and civilians and theprohibition of attack against the civilian population as such or against
individual civilians implies, in order to be effective, that all feasible
precautions have to be taken to avoid injury, loss or damage to thecivilian population.'j4

Suggestions for further reading
I. Detter, The Law of War, 2nd edn, Cambridge, 2000
L. Green, T h e Contemporary Law ofAr;ned Co~zflict,2nd edn, Manchester, 2000
A. P. V. Rogers, Law on the Battlefield, Manchester, 1996""ee

Irlterrlationnl Review of the Red Cross, Sept.-Oct. 1989, p. 404. See also Green, Armed
Conflict, p. 356. Part B of this Declaration dealing with Prohibitions and Restrictions on
the Use of Certain Weapons has been omitted. It may be found at the above references.

The United Nations

The UN system
The United Nations' was established following the conclusion of the Second World War and in the light ofAllied planning and intentions expressed. ~ purposes of the UN are set out in article 1 ofduring that ~ o n f l i c t The
the Charter as follows:
1. To maintain international peace and securit): and to that end, to takeeffective collective measures for the prevention and removal of threats tothe peace, and for the suppressioil of acts of aggression or other breachesof the peace, and to bring about by peaceful means, and in conformity withthe principles of justice and international law, adjustment or settlementof international disputes or situations which might lead to a breach of thepeace;
2. To develop friendly relations among nations based o n respect for the
principle of equal rights and self-determination of peoples, and to takeother appropriate measures to strengthen universal peace;
3. To achieve international co-operation in solving international problems of an economic, social, cultural o r humanitarian character, and inpromoting and encouraging respect for human rights and for fundamental'

See e.g. The Charter of the LTnited Nutions (ed. B. Simma), 2nd edn, Oxford, 2002; La
Charte des hrations Unies (eds. J. P. Cot and A. Pellet), Paris, 1991; B. Conforti, The Law
and Practice of the United Nations, 2nd edn, The Hague, 2000; United Nations Legal Order(eds. 0 . Schachter and C. C. Joyner), Cambridge, 2 vols., 1995; Bowett's Law o f lnternational Institutions (eds. P. Sands and P. Klein), 5th edn, London, 2001, chapter 2; Tlze
United Nations and a Just World Order (eds. R. A. Falk, S. S. Kim and S. H. Mendlovitz),
Boulder, 1991; B. Broms, United Nations, Helsinki, 1990; E . Luard, A History of the United
Nations, London, 1982, vol. I; R. Higgins, Tlze Developmerzt oflnternational Law Through the
Political Organs ofthe United Natiorzs, Oxford, 1963; United Nations, Divided M'orld (eds. A.
Roberts and B. Kingsbury), 2nd edn, Oxford, 1993; L. M. Goodrich, The United Nations in
a Char~gingWorld, New York, 1974; L. B. Sohn, Cases on United Natiorzs Law, 2nd edn,
Brooklyn, 1967; the Bertrand Report, 1985, Al401988, and L. M. Goodrich, E. Hambro and A. P. Siinons, Charter of the United Nations, 3rd edn, New York, 1969. See also
http:ll~m~w~.~~n.orgi.
See UNCIO, 15 vols., 1945.

TH E UNI TED NATIONS

1083

freedoms for all without distinction as to race, sex, language, or religion;and4. To be a centre for harmonizing the actions of nations in the attainmentof these common ends.

While the purposes are clearly wide-ranging, they do provide a useful
guide to the comprehensiveness of its concerns. The question ofpriorities
as between the various issues noted is constantly subject to controversy
and change, but this only reflects the continuing pressures and altering
political balances within the organisation. In particular, the emphasis upon decolonisation, self-determination and apartheid mirrored thegrowth in UN membership and the dismantling of the colonial empires,
while increasing concern with economic and developmental issues is now
very apparent and clearly reflects the adverse economic conditions invarious parts of the world.
The Charter of the United Nations is not only the multilateral treaty
which created the organisation and outlined the rights and obligations of
those states signing it, it is also the constitution of the UN, laying down its
functions and prescribing its limitations. Foremost amongst these is therecognition of the sovereignty and independence of the member states.
Under article 2(7) of the Charter, the UN may not intervene in mattersessentially within the domestic jurisdiction of any state (unless enforcement measures under Chapter VII are to be applikd). This provision has
inspired many debates in the UN, and it came to be accepted that colonial
issues were not to be regarded as falling within the article 2(7) restriction. Other changes have also occurred,-demonstrating that the conceptof domestic jurisdiction is not immutable but a principle of internationallaw delineating international and domestic spheres of operations. As aprinciple of international law it is susceptible of change through international law and is not dependent upon the unilateral determination ofindividual state^.^In addition to the domestic jurisdiction provision, article 2 also lays
down a variety of other principles in accordance with which both the UN
and the member states are obliged to act. These include the assertion that
the UN is based upon the sovereign equality of states and the principles
of fulfilment in good faith of the obligations contained in the Charter, thepeaceful settlement of disputes and the prohibition on the use of force.
It is also provided that member states must assist the organisation in its
activitiestaken in accordance with the Charter and must refrain fromSee above, chapter 12, p. 574.

TH E UNI TED NATIONS

1085

declared that the issue ofwhether or not a matter was procedural was itself
subject to the veto.8 This 'double-veto' constitutes a formidable barrier.
Subsequent practice has interpreted the phrase 'concurring votes of thepermanent members' in article 27 in such a way as to permit abstentions.
Accordingly, permanent members may abstain with regard to a resolutionof the Security Council without being deemed to have exercised their vetoagainst it.9
It does not, of course, follow that the five supreme powers of 1945
will continue to hold that rank. However, the complicated mechanisms
for amendment of the charter," coupled with the existence of the veto,make any change unlikely." Of the ten non-permanent seats, it is accepted that five should be allocated to Afro-Asian states, one to Eastern Europe, two to Latin America, and two to Western European andother powers.12 The Council has currently two permanent committees,
being a Committee of Experts on Rules of Procedure and a Committee on
Admission of New Members. The Council may establish ad hoc committees, such as the Committee on Council meeting away from Headquarters, the Governing Council of the United Nations Compensation
Commission established by Security Council resolution 692 (1991) andthe Counter-Terrorism Committee.'" There is also a Working Group on
General Issues on Sanctions and sanctions committees covering states
under sanction.
The Security Council acts on behalf ofthe members ofthe organisation
as a whole in performing its functions, and its decisions (but not its
Repertory ofpractice of UN Orgai~s,New York, 1955, vol. 11, p. 104. See also Simma, Charterp. 489.
See e.g. A. Stavropoulos, 'The Practice of Voluntary Abstentions by Permanent Membersof the Security Council under Article 27(3) of the Charter: 61 AJIL, 1967, p. 737. See also
the Namibia case, ICJ Reports, 1971, pp. 16,22; 49 ILR, pp. 2, 12, recognising this practiceas lawful.
l o See articles 108 and 109 of the Charter, which require inter alia the consent of all thepermanent members to any amendment to or alteration of the Charter. It may indeed besuggested that the speed with which Russia was accepted as the continuance of the former
USSR with regard to the permanent seat on the Security Council partly arose out of adesire by the Council to avoid opening up the question of membership for general debate:
see F. Kirpis, International Organisations in their Legal Seftirg, 2nd edn, St Paul, 1993, pp.
188 ff. See also above, chapter 17, p. 865.
Note, however, that the General Assembly has been considering the question of the 'equitable representation on and increase in the membership of the Security Council' and an
open-ended working group was established to consider the matter further: see e.g. General
Assembly resolution 48126. See also the Report of the Secretary-General, A1481264.
l 2 General Assembly resolution 1991 (XVIII).
l3 Established under resolution 1373 (2001). See above, chapter 20, p. 1051.

''

1086

I N T E R N A T I O N A L LAW

recommendation^)'^ are binding upon all member states." Its powers
are concentrated in two particular categories, the peaceful settlement ofdisputes and the adoption of enforcement measures. By these means, theCouncil conducts its primary task, the maintenance ofinternational peaceand security. However, the Council also has a variety of other functions. In
the case of trusteeship territories, for example, designated strategic areas
fall within the authority of the Security Council rather than the General
Assembly,'6 while the admission, suspension and expulsion of member
states is carried out by the General Assembly upon the recommendationof the Council." Amendments to the UN Charter require the ratificationof all the permanent members of the Council (as well as adoption by
a two-thirds vote of the Assembly and ratification by two-thirds of UN
members).18 The judges of the International Court are elected by the
Assembly and ~ o u n c i l . ' ~The Council has generally not fulfilled the expectations held of it in theyears following the inception of the organisation. This has basically been
because of the superpower rivalry which prevented the Council from taking action on any matter regarded as of importance by any ofthe five members, and the veto was the means by which this was achieved. However, thisdoes tend to mean that initiatives taken by the Council are fairly highly
regarded since they inevitably reflect a consensus of opinion amongst its
members, and more particularly amongst its permanent members. For
example, Security Council resolution 242 (1967)~'laid down the basis
for negotiations for a Middle East peace settlement and is regarded as themost authoritative expression of the principles to be taken into account."
Hopes for the transformation of the Security Council into the body it was
intended to be rose with the development of the glusnost and perestroika
policies in the Soviet Union in the late 1980s. Increasing co-operation
with the US ensued and this reached its highest point as the Kuwait crisisl 4 Compare, for example, article 36 of the Charter (peaceful settlement) with articles 41,42

and 44 (enforcement actions).
Article 25 of the Charter.
l6 See articles 82 and 83 of the Charter.
l 7 See articles 4, 5 and 6 of the Charter. The restoration of the rights and privileges of asuspended member is by the Council, article 5.
'"rticle108. A similar requirement operates with regard to alteration of the Charter by aGeneral Conference of Members: see article 109.
l9 Article 4 of the Statute of the International Court of J~lstice.
This resolution was reaffirmed in resolution 338 (1973).
See generally, I. Pogany, The Security Council and the Arab-Israeli Conflict, Aldershot, 1984,
chapter 5, and A. Shapira, 'The Security Co~ulcilResolution of Noveillber 22, 1967 - Its
Legal Nature and Implications', 4 Israel Law Review, 1969, p. 229.
li

''
"

TH E UNI TED NATIONS

1087

evolved and the Council adopted a series of twelve crucial and binding
resolutions, culminating in resolution 678 (1990), which authorised theuse of all necessary means in order to bring about an Iraqi withdrawal
from Kuwait and the restoration ofinternational peace and security in that
region.22Further activities ensued, including the adoption of resolutions
1368 and 1373 of 2001 concerning the attack on the World Trade Center,condemning international terrorism, reaffirming the right of self-defence
and establishing a Counter-Terrorism Committee. However, the failure of
the Council to agree upon measures consequent to resolution 1441 (2002)
concerning Iraq's possession of weapons of mass destruction contrary toresolution 687 (1991) and others precipitated a major division within theCouncil. The US and the UK commenced military operations against Iraq
in late March 2003 without express Security Council authorisation andagainst the opposition of other permanent members.23It remains to be
seen how serious a disruption this will prove to be.
The failure of the Council in its primary responsibility to preserve
world peace stimulated a number of other developments. It encouraged
the General Assembly to assume a residual responsibility for maintaining international peace and security, it encouraged the Secretary-General
to take upon himself a more active role and it hastened the development of peacekeeping operations. It also encouraged in some measure theestablishment of the military alliances, such as NATO and the Warsaw Pact,
which arose as a consequence ofthe onset of the Cold War and constituted,
in effect, regional enforcement systems bypassing the Security Council.

The General Assembly 24
The General Assembly is the parliamentary body of the UN organisationand consists of representatives of all the member states, of which there
are currently 191. Membership, as provided by article 4 of the Charter, isopen to:all other peace-loving states w h i c h accept t h e obligations contained i n t h epresent Charter a n d , i n t h e judgment o f t h e organisation, are able andwilling t o carry o u t these obligations," See below, p. 1126. See also The Kuwait Crisis: Basic Docunlents (eds. E. Lauterpacht,
C . Greenwood, M . Weller and D. Bethlehem), Cambridge, 1991.
below, p. 1137.
24 See e.g. Boivett's International Institntions, pp. 27 ff.; Nicholas, United Nations, chapter 5;
B. Finley, The Structure of the United Nations General Assembly, Dobbs Ferry, 3 vols., 1977,
and S. Bailey, The General Assembly of the United Nations, London, 1964.
" See further

1088

I N T E R N A T I O N A L LAW

and is effected by a decision of the General Assembly upon the recommendation of the Security Council.
However, in practice, the process of admitting states to membership became enmeshed in the rivalries ofthe Cold War and objections were raised
as regards states of different ideological persuasions. Despite an Advisory
Opinion bythe International Court of Justice that onlythe conditions enumerated in article 4 were to be taken into account in considering a request
for m e m b e r ~ h i pthe
, ~ ~practice continued until 1955, when a package deal
was concluded and a group of sixteen new members was admitted.26On
occasions, applications for membership to the UN have been the subjectof veto in the Security ~ o u n c i l . ~Other'changes do take place. For example in 1991, Byelorussia informed the UN that it had changed its name to
Belarus, while the Czech and Slovak Federal Republic ceased to exist on
31 December 1992 to be replaced by two new states (the Czech Republicand Slovakia), who were accepted as UN members on 19 January 1993.
The former German Democratic Republic ceased to exist and its territory
was absorbed into the Federal Republic of Germany as from 3 October
1990, while 'The Former Yugoslav Republic of Macedonia' was admitted
to the UN on 8 April 1993 under that unusual appellation. In November
2000, the Federal Republic of Yugoslavia was admitted as a new member
and in February 2003 it changed its name to Serbia and Montenegro.
Membership of the UN may be suspended under article 5 of the Charter by the General Assembly, upon the recommendation of the Security
Council, where the member state concerned is the object of preventive or
enforcement action by the Security Council. Article 6 allows for expulsion of a member by the General Assembly, upon the recommendationof the Security Council, where the member state has persistently violated
the Principles contained in the
A rather different situation
arose with regard to Yugoslavia. In 1992, the General Assembly decided
upon a Security Council recommendation that the Federal Republic of
Conditions of Admission of a State to Membership of the United Nations case, ICJ
Reports, 1948, p. 57; 15 AD, p. 333. See also the Competence of the General Assenibly for
the Admission of a State to the United Nations case, ICJ Reports, 1950, p. 4; 17 ILR, p. 326,
where the Court held that the General Assembly alone could not effect membership in theabsence of a recommendation by the Security Council.
26 See e.g. Luard, History, chapter 19. See also Simma, Charter, p. 179, and L. Gross, 'Progress
Towards the Universality of Membership in the UN', 50 AJIL, 1956, p. 808.
" For example the vetoes cast by China against Bangladesh in 1972 and by the US against
Angola and Vietnam in 1976: see Kirgis, Intei.nationa1 Organisations, pp. 144 ff. These
vetoes were not renewed, so that Bangladesh, Angola and Vietnam became members of
the UN in 1974, 1976 and 1977 respectively.
See article 2.

"'heTHE UNITED NATIONS

1089

Yugoslavia (Serbia and Montenegro) could not simply take over the UN
membership of the Former Yugoslavia, but would have to apply anew formembership.29This was achieved on 1 November 2000.~'
Certain situations may fall below suspension or expulsion and controversies have arisen. The question of refusal of credentials to General
Assembly delegations has occasionally arisen in a context beyond mere
examination of formalities as envisaged by article 9 of the Charter andRule 27 of the Rules of Procedure of the General ~ s s e m b l and~ ~ 'problems caused by disputed governments.32In 1974, the credentials of theSouth African representative were not accepted33and this was interpretedby the President of the General Assembly as meaning that South Africa
could not participate in the work of the Assembly. This approach, which
differed from that adopted in previous years, was approved by the General~ssembl~.'~Voting in the Assembly is governed by article 18, which stipulates thateach member has one vote only and that decisions on 'important questions', including- the admission of new members and recommendations
relating to international peace and security, are to be made by a two-thirds
majority of members present and voting. Other decisions may be taken
by a simple majority. This system of one state-one vote, although logicalin view of the sovereign equality of states, has given rise to considerable
criticism, especially when it is realised that in many cases the combined
populations of two-thirds of the member states may be far less than thatof the remaining one-third. Many members of the UN have populationsof under two million, whereas China has a population well over 1 billion, India has a population approaching that figure and the USA has a
See General Assembly resolution 4711 and Security Council resolution 777 (1992). See
also above, chapter 17, p. 866.
' O See resolution 55112.
See e.g. Simma, Charter, pp. 253 ff.; D. Ciobanu, 'Credentials of Delegations and Representation of Member States at the United Nations: 25 ICLQ, 1976, p. 35 1, and M. Halberstam,'Excluding Israel from the General Assembly by a Rejection of its Credentials', 78 AJIL,
1984, p. 179.
Where e.g. the General Assembly has been accepted as having the right to choose between
rival claimants seeking accreditation as representatives of a particular member state: see
Ciobanu, 'Credentials', p. 368.
" See Ciobanu, 'Credentials:"'eee.g. Simma, Charter, p. 255. The legality of this has been challenged, ibid. Note also
the view of the UN Legal Counsel in 1970 that 'participation in the meetings of theGeneral Assembly is quite clearly one ofthe important rights and privileges ofinembership.
Suspension of this right through the rejection of credentials would not satisfy the foregoing
requirements [i.e, of article 5 of the Charter] and would therefore be contrary to theCharter', LTnited Nations Juridical Yearbook, New York, 1970, pp. 169-70.
'9''10510I N T E R N A T I O N A L LAW

population in the region of 250 million. This has led to complaints at theapparent inequity of having hostile Assembly resolutions adopted by whatamounts to a minority of the world's population, even though somethingover ninety states may be involved." The position has been underlinedby the emergence of bloc voting, whereby, for example, the Afro-Asianstates agree to adopt a common stance on particular issues. This meansthat on a number of occasions resolutions have been passed against thewishes of those states that alone have the actual resources to carry out theterms of such resolutions.
Accordingly, a degree of unreality has pervaded the General Assemblyon occasions, as resounding majorities have been accumulated by statesthat are, in essence, weak in both population and means. On the other
hand, this is probably the most effective way in which the developing
nations of the Third World can assert their views. In any event, no acceptable alternative has been proposed and the interests of the five permanent
members of the Security Council, at least, are safeguarded by the existenceof the veto in the Council.
Except for certain internal matters, such as the budget,36 the Assembly
cannot bind its members. It is not a legislature in that sense, and its resolutions are purely recommendatory. Such resolutions, of course, may bebinding if they reflect rules of customary international law and they are
significant as instances of state practice that may lead to the formationof a new customary rule, but Assembly resolutions in themselves cannot
establish binding legal obligations for member states3' The Assembly isessentially a debating chamber, a forum for the exchange of ideas andthe discussion of a wide-ranging category of problems. It meets in annual sessions, but special sessions may be called by the Secretary-Generalat the request of the Security Council or a majority of UN members.38
Such special sessions have been held, for example, to discuss the issuesof Palestine in 1947-8, Namibia (South West Africa) in 1967, 1978 and1986, and to debate the world economic order in 1974, 1975 and 1990.
Other issues covered include financing the UN Interim Force in Lebanon
in 1978, apartheid in 1989, disarmament in 1978, 1982 and 1988, drug
abuse in 1990 and again in 1998, small island developing states in 1999,
women in 2000, HIVIAIDS in 2001 and children in 2002. Emergency
G. Clarke and L. B. Sohn, World Peace Tl~roughWorld Law, Cambridge, 1958, pp.
19-30; Thestrategy of World Order (eds. R. A. Falk and S. H. Mendlovitz), New York, 1966,
vol. 111, pp. 272 ff., and Sohn, Cases, pp. 248 ff.
36 Art~cle17 of the Charter.
37 See further above, chapter 3, p. 108.
i8 Art~cle20 of the Charter.
ii See e.g.

TH E UNI TED NATIONS

1091

sessions may also be called by virtue of the Uniting for Peace machinery.39Ten such sessions have been convened, covering situations ranging
from various aspects of the Middle East situation in 1956, 1958, 1967,
1980 and 1982 and a continuing session in 1997-2002 to Afghanistan in1980 and Namibia in 1981.
The role of the Assembly has increased since its inception, due not only
to the failure of the Security Council to function effectively in the lightof East-West hostility, but also to the enormous growth in membershipsince the advent of decolonisation. These states are jealous of their independence and eager to play a significant part in world affairs, and theGeneral Assembly is the ideal stage. In the sphere of peacekeeping, theinfluence and activity of the Assembly have proved vital in the creationand consolidation of a new method of maintaining international peace.40
To aid it in its work, the Assembly has established a variety of organs
covering a wide range of topics and activities. It has six main committees that cover respectively disarmament and international security; economic and financial; social, humanitarian and cultural; special politicaland decolonisation; administrative and budgetary; and legal matters.41In
addition, there is a procedural General Committee dealing with agenda
issues and a Credentials Committee. There are also two Standing Committees dealing with inter-sessional administrative and budgetary questions
and contributions, and a number of subsidiary, ad hoc and other bodies
dealing with relevant topics, including an Investments Committee anda Board of Auditors. The more well known of such bodies include theInternational Law Commission, the UN Commission on International
Trade Law, the UN Institute for Training and Research, the Council for
Namibia and the UN Relief and Works Agency.42

The Economic und Social Council43
Much ofthe work of the United Nations in the economic and social spheresof activity is performed by the Economic and Social Council, which is a
See below, p. 1 152.
40 See below, p. 1 153.
See e.g. Broms, United Nations, pp. 198 ff. Note that in 1993, the Special Political Committee was merged with the Fourth Committee on Decolonisation: see General Assembly
resolution 471233.
See e.g. 2001 United Nations Handbook, Wellington, 2001, pp. 27 ff.
4' See e.g. ibid., pp. 83 ff., and Broms, United Nationc, chapter 11. See also Boivett's International Institutions, p. 55; M! R. Sharp, The C'NEconornic C o ~ ~ n c New
i l , York, 1969, andabove, chapter 6, p. 282.
j9

4'

"

1092

I N T E R N A T I O N A L LAW

principal organ of the UN. It has the capacity to discuss a wide rangeof matters, but its powers are restricted and its recommendations are notbinding upon UN member states. It consists of fifty-four members electedby the Assembly for three-year terms with staggered elections, and eachmember has one vote.44The Council may, by article 62, initiate or makestudies upon a range of issues and make recommendations to the General
Assembly, the members of the UN and to the relevant specialised agencies.
It may prepare draft conventions for submission to the Assembly and callinternational conferences. The Council has created a variety of subsidiaryorgans ranging from nine functional commissions (including the Statistical Commission, the Commission on Human Rights, the Commission on
the Status of Women and the Commission on Sustainable Development)
to five regional commissions (on Africa, Asia and the Pacific, Europe,
Latin America and the Caribbean, and Western Asia) and a number ofstanding committees and expert bodies (including the Commission on
Transnational Corporations; the Commission on Human Settlements; theCommittee on Natural Resources; the Committee on Economic, Social
and Cultural Rights and the Committee on New and Renewable Sourcesof Energy and on Energy for Development). The Council also runs a variety of programmes including the Environment Programme and the Drug
Control Programme, and has established a number of other bodies suchas the Office of the UN High Commissioner for Refugees and the UN
Conference on Trade and Development. Its most prominent function has
been in establishing a wide range of economic, social and human rights
bodies.

The Trusteeship Council 45
The Trusteeship Council was established in order to supervise the trust
territories created after the end ofthe second world
Such territories
were to consist of mandated territories, areas detached from enemy states
as a result ofthe Second World War and other territories voluntarily placed
Article 61 ofthe Charter. Note that under article 69, any member of the UN may be invited
to participate in its deliberations without a vote.
4' See e.g. Broms, United Nationx, chapter 12; Bowett's Iuternatiorzal Ir~stitutions,p. 63, andC. E. Toussaint, The Trusteeship System of the United hrations, New York, 1956.
46 By article 83 of the Charter, the fi~nctionsof the UN relating to strategic areas were to be
exercised by the Security Council (where each permanent member has a veto) rather than,as ilorrnal for trust territories, under article 85 by the General Assembly with the assistanceof the Trusteeship Council. The last trust territory was the strategic trust territory of the
Pacific Islands, administered by the US.
44

THE UNITED NATIONS

lo93

under the trusteeship system by the administering authority (of which
there have been none)." The only former mandated territory which was
not placed under the new system or granted independence was South West
Africa.48With the independence of Palau, the last remaining trust territory, on 1 October 1994, the Council suspended operation on 1 Novemberthat year.4y

The secretariat"'

The Secretariat of the UN consists of the Secretary-General and his staff,
and constitutes virtually an international civil service. The staff are appointed by article 101 upon the basis of efficiency, competence and integrity, 'due regard' being paid 'to the importance of recruiting the staff
on as wide a geographical basis as possible'. All member states have undertaken, under article 100, to respect the exclusively international characterof the responsibilities of the Secretary-General and his staff, who are neither to seek nor receive instructions from any other authority but the UN
organisation itself. This provision has not always been respected.
Under article 97, the Secretary-General is appointed by the General
Assembly upon the unanimous recommendation of the Security Council and constitutes the chief administrative officer of the UN. He (orshe) must accordingly be a personage acceptable to all the permanent
members and this, in the light of effectiveness, is vital. Much depends
upon the actual personality and outlook of the particular office holder,
and the role played by the Secretary-General in international affairs has
47 Article 77 of the Charter.
48

See above, chapter 5, p. 203.

'' See e.g. BasicFactsAbout the U~litedNations,E.95.1.3.1and Press Release ORGl121llRev.1.
Note that the UN Secretary-General has called for its formal termination, but this would
require an amendment of the Charter: see Al4911. See also C. L. \\rillson, 'Changing theCharter: The UnitedNations Prepares for the Twenty-First Century: 90 AJIL, 1996, pp. 115,
121-2.
See e.g. S. Bailey, 'The United Nations Secretariat' in The Evolution oflnternational Organisations (ed. E . Luard), London, 1966, p. 92, and Bailey, The Secretariat of the UN, London,
1962; T. Meron, The UN Secretariat, Lexington, 1977; S. Schwebel, The Secretary-Generalo f t k e United Nations, Cambridge, M A , 1952, and Schwebel, 'The International Characterof the Secretariat of the United Nations' and 'Secretary-General and Secretariat' in Justicein Ir~terrlationalLaw, Cambridge, 1994, pp. 248 and 297 respectively; A. \V, Rovine, The
First Fifty I'eurs: The Secretary General in World Politics, 1920-1970, Leiden, 1970, andgenerally Public Papers ofthe Secretaries-General of the United Nations (eds. A. It'. Cordier
Cordier and M. Harrelson), New York, 8 vols., 1969-77. See also
and W. Foote, and A. Mr.
Simma, Charter, pp. 1191 ff., and below, p. 1106.

lo94

I N T E R N A T I O N A L LAW

tended to vary according to the character of the person concerned. An
especially energetic part was performed by Dr Hammerskjold in the late
1950s and very early 1960s until his untimely death in the Congo," butsince that time a rather lower profile has been maintained by the occupants of that position. The current holder of the office is Kofi Annan of
Ghana.
Apart from various administrative functions,j2 the essence of theSecretary-General's authority is contained in article 99 of the Charter,
which empowers him to bring to the attention of the Security Council any matter which he feels may strengthen the maintenance of international peace and security, although this power has not often beenused.j3 In practice, the role of Secretary-General has extended beyond
the various provisions of the Charter. In particular, the Secretary-General
has an important role in exercising good offices in order to resolve orcontain international crises.54 Additionally, the Secretary-General is in
an important position to mark or possibly to influence developments.
The publication of Aiz Agenda for ~ e a c $ jby Dr Boutros-Ghali, the then
Secretary-General, for instance, constituted a significant point in the evolution of the organisation, with its optimistic and challenging ideas for the
future.
In many disputes, the functions assigned to the Secretary-General by
the other organs of the United Nations have enabled him to increase theinfluence of the organisation.jGOne remarkable example of this occurredin the Congo crisis of 1960 and the subsequent Council resolution authorising the Secretary-General in very wide-ranging terms to take action5'
Another instance of the capacity of the Secretary-General to take action
See e.g. Bailey, 'United Nations Secretariat:~hese~includ'e
servicing a variety of organs, committees and conferences; co-ordinating
the activities of the secretariat, the specialised agencies and other inter-governmentalorganisations; the preparation of studies and reports and responsibility for the preparationof the annual budget of the UN. Note that the Secretary-General also acts as depositary
for a wide range of multinational treaties, and under article 98, submits an annual reporton the work of the organisation.
iz Article 99 was invoked, for example, in 1950 in the Korean war crisis, in 1960 in the Congo
crisis and in 1979 with regard to the Iranian hostage issue: see Yearbook of the U N , 1979,
pp. 307-12. See also S113646 and S. Sch~vebel,'The Origins and Development of Article
99 of the Charter' in Justice in International Law, 17. 233.
j4 See further below, p. 1106.
j5 The Report of the Secretary-General Pursuant to the Statement Adopted by the Summit
Meeting of the Security Council on 31 January 1992, New l'ork, 1992.
j6 Article 98. See also J. Perez de Cuellar, 'The Role of the UN Secretary-General' in Roberts
and Kingsbury United Nations, Divided World, p. 125.
j7 See below, p. 1109.
j1'
jTHE UNITED NATIONS

lo95

was the decision of 1967 to withdraw the UN peacekeeping force in the
Middle East, thus removing an important psychological barrier to war,and provoking a certain amount of criticism.''
The sixth principal organ ofthe UN is the International Court of Justice,established in 1946 as the successor to the Permanent Court of International ~ustice."

T h e specialised agencies 60
This is the term used to define those organisations established by intergovernmental agreement and having wide international responsibilities
in economic, social, cultural and other fields that have been brought
into relationship with the United ~ a t i o n s . 'This~ task is performed by
the Economic and Social Council which also co-ordinates their activities
with the approval of the General Assembly, and the agreements madeusually specify the sending of regular reports by the agencies to the Economic and Social Council and provide for exchange of information in
general.62
Specialised agencies are founded upon an international treaty between
states that establishes the basic parameters of the organisation and deals
inter alia with membership, purposes and s t r ~ c t u r e Upon
. ~ ~ signing anagreement with the UN under articles 57 and 63 of the Charter, such anorganisation will become a specialised agency. Most constituent instruments distinguish between original and subsequent members, while several agencies provide for associate m e m b e r ~ h i pfor
~ ~non-self-governing
territories, as for instance Namibia prior to its independence in 1990.
Voting powers are variable, although most of the organisations operateon the basis of equal votes for all member states. However, the financial"'eebelo~'t7,p. 1111.

j9

See above, chapter 19, p. 959.

'"See e.g. Broms, LTnited Nations, chapter 14; Simma, Charter, pp. 947 ff.; Bowett's International hlstitutions, chapter 3; C . Mr.
Alexandrowicz, The Law-Making Fz~nctionsof theSpecialised Agencies of the United &'ations, Sydney, 1973, and E. Luard, Interriatiotlal Agencies: The Emerging Frarneivork of Interdependence, London, 1977.
Article 57 of the Charter.
62 See articles 62-6 of the Charter.
See e.g. Harrod, 'Problems of the United Nations Specialised Agencies at the Quarter
Century', 28 YBWA, 1974, p. 187, and Klein, in Encyclopedia of Pt~blicInternational Law(ed. R. Bernhardt), Amsterdam, 1983, vol. \', pp. 349-69. See also A. El Erian, 'The Legal
Organisation of International Society' in Manl~alof Pl~blicInternational Laiv (ed. M.
Sarensen), London, 1968, pp. 55,96-106.
64 See e.g. the UN Educational, Scientific and C u l t ~ ~ rOrganisation
al(UNESCO) and theWorld Health Organisation.

1096

I N T E R N A T I O N A L LAW

organisations have weighted voting systems linked to different contribution quotas. Withdrawal is possible, as for example the United States'
withdrawal from the International Labour Organisation between 1977
and 1980 and from UNESCO between 1984 and 2002. The usual structure of a specialised agency is based upon the plenary body, in which
all members are represented. This organ elects a smaller executive council in which membership may be determined not only by geographicaldistribution but also by functional conditions.
For instance, of the members of the Council of the International Maritime Organisation, ten must be governments of states with the largest
interest in providing international shipping services, ten must be governments of other states with the largest interest in international seaborne
trade, while the remaining twenty have to be governments of states (notalready elected) with special interests in maritime transport or navigation whose election will ensure an equitable geographical representat i ~ n . Similarly,~'
the composition of the Council of the International Civil
Aviation Organisation is weighted in favour of those states most active inthe fields of air transport and the provision of facilities for international
air navigation,@ while the unique structure of the ILO has already been
noted.67
Most of the specialised agencies have devised means whereby the decisions of the particular organisation can be rendered virtually binding
upon members. This is especially so with regard to the International
Labour Organisation, UNESCO and the World Health Organisation.
Although such institutions are not able to legislate in the usual sense, they
are able to apply pressures quite effectively to discourage non-compliancewith recommendations or conventions. In the case of the ILO, treaties
are submitted to member governments for ratification and within twelve
or eighteen months must be laid before the state's legislative organs. The
governments, in putting the convention before their parliaments, are required to outline their proposed line of action. Although no obligations
are imposed, considerable pressures often build up in favour of ratifying
the ILO Convention and this is reinforced by the comprehensive system" See e.g. The Irzterizatio~zalMaritime Organi~atioiz(ed. S. Mankabady), London, 1984. See
also http://~m~r~v.ii~~o.org/hoi~~e.asp.
" See e.g. J. Shenkmann, International Civil Aviation Organisation, Geneva, 1955; Fitzgerald, 'The Interilatioilal Civil Aviation Organisation' in The Effectiveness of Iriterlzational
Deci.cions (ed. S. Schwebel), Leiden, 1971, p. 156, and Binaghi, 'The Role of ICAO' in The
Freedorn of the Air (ed. E. Mcilihinnep), 1968, p. 17.
67 See above, chapter 6, p. 312.

THE UNITED NATIONS

lo97

of reporting back to the organisation that exists. Similarly, sanctions andenforcement procedures in the specialised agencies show much subtlety
and sophistication and operate, on the whole, beyond the normal confinesof strict legal obligations.68
The International Labour O q a n i ~ a t i o nwas
~ ~set up in 1919 with theaim of protecting and extending the rights of workers throughout
the world. It has adopted well over 100 conventions in pursuance of this,the vast majority of which are in force, which cover such topics as the general conditions of employment, rights to protect the interests of womenand children, social security, industrial relations, safety regulations andprovisions protecting the right to organise.
The World Health ~ r g a n i s a t i o nwas
~ ~established in 1946 with the aimof unifying the standards of health care and it performs a variety of usefulfunctions dedicated to this purpose. These range from the exchange of
information to proposals for international treaties and the promotionof research and study in relevant areas. The plenary organ is the World
Health Assembly, with equal voting for member states. This body elects
representatives to the Executive Board. There is a secretariat and a directorgeneral and it is based in Geneva.
The UN Educational, Scientific and Cultural Organisation( u N E S C O ) ~was~ established to further the increase and diffusion ofknowledge by various activities including technical assistance andco-operative ventures with national governments. It also operates as acentral bank of information. In the mid-1970s, however, the entranceof political considerations (mainly related to the Middle East, but also
concerning suggestions for 'a new world information and communication order') somewhat weakened the authority of UNESCO, which wasnever intended as a political arena, and brought intellectual and financialpressures to bear.72The plenary organ is the General Conference, whichelects representatives to the Executive Board. There is a secretariat anddirector-general and it is based in Paris.

" See e.g. Alexandrowicz, Law-LVlakirzgFunctions,and I. Detter, Law Making by lnternatioizal
Organisations, Norstedt, 1965.
" See above, chapter 6, p. 312. See also http://~~.w.ilo.org/.
See e.g. C. 0.Pannenborg, A New 1ntel.national Health Order, Alphen aail den Rijn, 1979.
See also http://wwru.u,ho.int/en/.
See above, chapter 6, p. 315.
7 2 Note that at the end of 1984, the United States withdrew from UNESCO: see 34 ILM, 1985,
pp. 489 ff., returiliilg in 2002. The UK withdrew in 1985 and returned in 1997. See also
http://~nw.unesco.orgi.
'O

"

1098

I N T E R N A T I O N A L LAW

The Food and Agriculture 0rganisation7' was created in 1943 andworks to collect and distribute information related to agricultural andnutritional matters. A World Food Programme was established in 1963
and in 1974 a World Food Conference was held in Rome. This called for theestablishment of a World Food Council as an organ within the UN system
to co-ordinate policies concerning food production, nutrition and otherconnected topics. It also suggested the creation of an international fund for
agricultural development and urged support for the FAO's international
fertiliser supply scheme. The increased attention devoted to agriculturalissues is due to a growing awareness of the danger of world hunger andstarvation, as well as a realisation ofthe extent to which rural development
has been neglected in attempts to industrialise and urbanise in the Third
World. The plenary organ is the Conference, which elects the Council.
There is a secretariat and director-general and it is based in Rome.74
Economic and financial specialised agencie~'~
There are a number of international organisations concerned with economic and financial affairs. The International Bank for Reconstruction
and Development (IBRD - the World Bank) emerged from the Bretton
Woods Conference of 1944 to encourage financial investment, and it works
in close liaison with the International Monetary Fund, which aims to assist monetary co-operation and increase world trade. A state can only
become a member of the World Bank if it is an IMF member. The plenary organ of these agencies is the Board of Governors and the executive
organs are the Executive Directors. These agencies, based in Washington DC, are assisted by the International Development Association (IDA)
and the International Finance Corporation (IFC), which are affiliated to
the World Bank and encourage financial investment and the obtaining ofPhillips, FAO, Its Origins, Fornzation and Et,olutiotl 1945-1981, Rome, 1981.
See also http://wwcv.fao.orgi.
i4 The following specialised agencies should also be noted in passing: the International
Civil Aviation Organisation (as to which see above, chapter 10, p. 466); the Universal
Postal Union; the International Telecommunication Union; the World MeteorologicalOrganisation; the International Maritime Organisation; the Mrorld Intellectual Property
Organisation; the International Fund for Agricultural Development; the UN Industrial
Development Organisation and the International Fund for Agricultural Development.
The International Atomic Energy Agency exists as an autonomous organisation within
the UN. See e.g. International Law Cases and Materials (eds. L. Henkin, R. C. Pugh, 0 .
Schachter and H. Smit), 3rd edn, St Paul, 1993, chapter 18.
j' Ibid., chapter 17, and S. A. L'oitovich, International Economic Organisations in the International Legal Process, London, 1994.
" See e.g. R. 7\.

THE UNITED NATIONS

lo99

loans on easy terms. These financial organisations differ from the rest of
the specialised agencies in that authority lies with the Board of Governors, and voting is determined on a weighted basis according to the levelof subscriptions made. Very important decisions require the consent of
70 to 85 per cent of the votes. The IBRD, IDA and IFC together with theMultilateral Investment Guarantee Agency constitute the 'World Bank
Gro~p'.~'The peaceful settlement of disputes7'

The League of N~ztions78
The provisions set out in the UN Charter are to a large degree based upon
the terms of the Covenant of the League of Nations as amended in thelight of experience. Accordingly, in order to be able better to understandthe background of the UN system a brief summary of the procedures
provided for within the League for solving disputes is necessary. Article
12 of the Covenant declared that any dispute likely to lead to a conflict
between members was to be dealt with in one of three ways: by arbitration,
by judicial settlement or by inquiry by the Council of the League. Article
15 noted that the Council was to try to effect a settlement of the dispute inquestion, but if that failed, it was to publish a report containing the factsof the case and 'the recommendations which are deemed just and properin regard thereto'. This report was not, however, binding upon the parties,
but if it was a unanimous one the League members were not to go to war'with any party to the dispute which complies with the recommendationsof the report'. If the report was merely a majority one, League members
e.g. Bo~vett'sInternational Institutiorls, pp. 87 ff. See also W. M. Scammell, 'The International Monetary Fund' in Luard, Evoltrtion oflnternational Organisations, chapter 9; A.
Shonfield, 'The World Bank: in Luard, Evolution of International Organisations, chapter
10; R. Townley, 'The Economic Organs ofthe UnitedNations', in Luard, Evoltltion oflnterrlational Organisations, chapter 11, and Alexandro~vicz,Law-~MakingFunctions, chapter 9.
See also http://~~mv.~~orldbank.org/.
" See e.g. M. Raman, Dispute Settlement through the United Nations, Oxford, 1977; J. G.
Merrills, International Dispute Settlenzent, 3rd edn, Cambridge, 1998, chapter 10; United
Nations, Handbook on the Peaceful Settlen~entof Disputes Between States, New York, 1992;
N. Bar-Yaacov, The Handling of International Disputes by Means of blqtriry, London, 1974,
chapter 8; B. S. Murty, 'Settlement of Disputes' in Snrensen, Manual ofpublic blternationalLaw, p. 673; E. Luard, A History of the United Nations, London, 1982, vol. I; Falk andMendlovitz, Strategy of World Order, vol. 111; The United Nations (eds. R. A. Falk and S.
Mendlovitz), New York, 1966; N. D. White, Keeping the Peace, 2nd edn, Manchester, 1998.
See generally, e.g. G. Scott, The Rise and Fall of the League of Nations, London, 1973, andFalk and Mendlovitz, Strategy of World Order, chapter 1.

"'ee

1100

I N T E R N A T I O N A L LAW

reserved to themselves 'the right to take such action as they shall consider
necessary for the maintenance of right and justice', In other words, in thelatter case the Covenant did not absolutely prohibit the resort to war bymembers. Where a member resorted to war in disregard of the Covenant,then the various sanctions prescribed in article 16 might apply, althoughwhether the circumstances in which sanctions might be enforced had
actually arisen was a point to be decided by the individual members andnot by the League itself. Sanctions were in fact used against Italy in 1935-6,
but in a half-heartedmanner due to political considerations by the leadingstates at the time.79

The United Nations system
The UN system is founded in constitutional terms upon a relatively clear
theoretical distinction between the functions of the principal organs of
the organisation. However, due to political conditions in the international order, the system failed to operate as outlined in the Charter andadjustments had to be made as opportunities presented themselves. The
Security Council was intended to function as the executive ofthe UN, with
the General Assembly as the parliamentary forum. Both organs could contribute to the peaceful settlement of disputes through relatively traditional
mechanisms of discussion, good offices and mediation. Only the Security
Council could adopt binding decisions and those through the means of
Chapter VII, while acting to restore international peace and security. But
the pattern of development has proved rather less conducive to clear categorisation. An influential attempt to detail the methods and mechanisms
available to the UN in seeking to resolve disputes was made by the UN
Secretary-General in the immediate aftermath of the demise of the Soviet
Union and the unmistakable ending of the Cold War.
In An Agenda for peace," the Secretary-General, while emphasisingthat respect for the fundamental sovereignty and integrity of states constituted the foundation-stone of the ~rganisation,~'noted the rapid changes
affecting both states individually and the international community as
a whole and emphasised the role of the UN in securing peace. The
Report sought to categorise the types of actions that the organisation was'' See e.g. Scott, Rise and Fall, chapter 15.
80 This was welcomed by the General Assembly in resolution 471120. See also the Reportof the Secretary-General o n the Implementation of the Recominendations in the 1992
Report, A1471965.
Ibid., p. 9.

THE UNITED NATIONS

1101

undertaking or could undertake. Preventive Diplomacywas action to prevent disputes from arising between states, to prevent existing disputes
from escalating into conflicts and to limit the spread of the latter when
they occur. This included efforts such as fact-finding, good offices andgoodwill missions.82Peacemaking involves action to bring the hostile parties to agreement, utilising the peaceful means elaborated in Chapter VIof thePeacekeepingis the deployment of a UN presence in thefield.84 Peace-building is action to identify and support structures thatwill assist peace.85 Peace Enforcement is peacekeeping not involving theconsent of the parties, which would rest upon the enforcement provisionsof Chapter VII of the
However, major traumatic events have occurred in very recent years.
The attack on the World Trade Center on 11 September 2001 'dramatised
the global threat of terrorism', while focusing attention upon 'reconstructing weak or collapsed states:" The Secretary-General has also emphasised
the need to replace the culture of reaction by one of prevention and by
developing inter alia a thirty to ninety-day deployment capability.88The
taking of military action by the US and the UK against Iraq in March 2003
in circumstances of profound division amongst the members, particularly
the permanent members, of the Security Council has raised fundamental
questions as to the future of the UN's work in settling disputes.
The Security Council
The primary objective of the United Nations as stipulated in article 1 of
the Charter is the maintenance of international peace and security anddisputes likely to endanger this are required under article 33 to be solved'by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or other peacefulmeans: Indeed, the Charter declares as one of its purposes in article 1, 'tobring about by peaceful means and in conformity with the principles ofjustice and international law, adjustment or settlement of international
disputes or situations which might lead to a breach ofthe peace: By article
Ibid., pp. 13 ff.
Ibid., pp. 20 ff
Iflid., pi?. 28 ff.
Ibid., pp. 32 ff.
86 See Report of the Secretary-General o n the Work of the Organisation, New York, 1993,
p. 96.
" See Report of the Secretary-General o n the Work of the Organisation, A/5711,2002, p. 1.
See also the Secretary-General's Agenda for Further Change, A1571387,9 September 2002.
See the Road map Toivards Implementation of the United Nations millennium Declaration, A1561326, 6 September 2001. The Millenilium Report may be found at
http:il~~v.ui~,orglmillei~niumlsgireporti.
84

1102

I N T E R N A T I O N A L LAW

24,89the members of the UN conferred on the Security Council primary
responsibility for the maintenance of international peace and security,and by article 2590 agreed to accept and carry out the decisions of theg1
Security Council. The International Court in the Namibia case drewattention to the fact that the provision in article 25 was not limited to
enforcement actions under Chapter VII of the Charter but applied to"'decisions of the Security Council" adopted in accordance with theCharter'. Accordingly a declaration of the Council taken under article
24 in the exercise of its primary responsibility for the maintenance ofinternational peace and security could constitute a decision under article 25 so that member states 'would be expected to act in consequenceof the declaration made on their behalf'.9' Whether a particular resolution adopted under article 24 actually constituted a decision binding all
member states (and outside the collective security framework of Chapter~ 1 1was) ~a matter~for analysis in each particular case, 'having regard
to the terms of the resolution to be interpreted, the discussions leading
to it, the Charter provisions invoked and, in general, all circumstancesthat might assist in determining the legal consequences of the resolutionof the Security
Under the Charter, the role of the Security
Council when dealing with the pacific settlement of disputes specificallyunder Chapter VI differs from when the Council is contemplating action
relating to threats to or breaches of the peace, or acts of aggression under
Chapter VII. In the former instance there is no power as such to makebinding decisions with regard to member states.
In pursuance of its primary responsibility, the Security Council may,by article 34, 'investigate any dispute, or any situation which might leadto international friction or give rise to dispute, in order to determine
whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security'. In addition tothis power of investigation, the Security Council can, where it deems
Ibid., pp. 452 ff,
49 ILR, pp. 1,42-3.
92 This approach is controversial and has not, for example, been accepted by Western states:
see e.g. Simma, Charter, pp. 457. See also R. Higgins, 'The Advisory Opinion on Namibia.
Which UN Resolutions are Binding under Article 25 of the Charter?', 21 ICLQ, 1972,
p. 270.
" See below, p. 1119.
9"C~ Reports, 1971, pp. 16, 53; 49 ILR, p. 43. The question as to whether relevant Security
Council resolutions on East Timor could be regarded as binding was raised in the East
Tirnor case, ICJ Reports, 1995, pp. 90, 103; 105 ILR, p. 226, but the Court concluded thatthe resolutions cited did not go so far as to impose obligations. But cf. the Disseiltiilg
Opinion by Judge \Veeramantry, ICJ Reports, 1995, pp. 205-8.
89 see e.g. Simma, C/?arter,pp. 442 ff.
91 ICJ Reports, 1971, pp. 16,52-3;

TH E UNI TED NATIONS

1103

necessary, call upon the parties to settle their dispute by the means elaborated in article 33.95The Council may intervene if it wishes at any stageof a dispute or situation, the continuance of which is likely to endanger international peace and security, and under article 36(1) recommend
appropriate procedures or methods of adjustment. But in making such
recommendations, which are not binding, it must take into consideration
the general principle that legal disputes should be referred by the parties
to the International Court of Justice. This process was involved when the
Security Council recommended that the UK and Albania should take theircase regarding the Corfu Channel incident to the International
Nevertheless, this example proved to be e x ~ e p t i o n a lWhere. ~ ~ the parties
to a dispute cannot resolve it by the various methods under article 33, theyshould refer it to the Security Council by article 37. The Council, where it
is convinced that the continuance of the dispute is likely to endanger international peace and security, may recommend not only procedures andadjustment methods, but also such terms of settlement as it may consider
appropriate.
Once the Council, however, has determined the existence of a threat to,or a breach of, the peace or act of aggression, it may make decisions which
are binding upon member states of the UN under Chapter VII, but untilthat point it can under Chapter VI issue recommendations
Under
article 35(1) any UN member state may bring a dispute or a situation
which might lead to international friction or give rise to a dispute before the Council, while a non-member state may bring to the attention of
the Council any dispute under article 35(2) provided it is a party to thedispute in question and 'accepts in advance, for the purposes of the
dispute, the obligations of pacific settlement provided in the present
Charter'. It is also possible for third parties to bring disputes to the attention of the Council. The General Assembly may make recommendations
to the Council regarding any questions or issues within the scope of the'' Note that under article 38, the Security Council may make recommendations to the parties
with regard to the peaceful settlement of disputes generally if all the parties to the disputeso request.
96 Sec~~rityCouncil resolution 22 (1947). See SCOR, 2nd yr, 127th meeting, 9 April 1947,
p. 727. See also Luard, History, pp. 209-12.
97 See also Security Council resolution 395 (1976) calling for negotiations between Turkey
and Greece over the Aegean Sea continental shelf dispute and inviting the parties to refer
the question to the International Court.
However, note that under article 37(2) if the Couilcil deems that a continuance of a disputeis likely to endanger international peace and security, it 'shall decide whether to take action
under article 36 [i.e. recommend appropriate procedures or methods of adjustment] orto recomnlend such terms of settlement as it may consider appropriate'.

"

1104

I N T E R N A T I O N A L LAW

Charter or relating to the maintenance of international peace, so long as
the Council itself is not already exercising its functions with regard to
the same question. The Assembly has the power, under article 11, to callthe attention of the Council to situations likely to endanger international
peace and security. Similarly, the Secretary-General of the UN may, by article 99, bring to the Council's attention any matter which in his opinion
may threaten the preservation of international peace and security.
In practice, the Security Council has applied all the diplomatic techniques available in various international disputes. This is in addition to
open debates and the behind-the-scenes discussions and lobbying thattake place. On numerous occasions it has called upon the parties to a dispute to negotiate a settlement and has requested that it be kept informed.
The Council offered its good offices in the late 1940s with regard to the
Dutch-Indonesian dispute99and has had recourse to mediation attempts
in many other conflicts, for example with regard to the ~ a s h m i r "and~~ ~ p r u s questions.lo2'~'
However, the cases where the Council has recommended procedures or methods of adjustment under article 36 havebeen comparatively rare. Only in the Corfu Channel and Aegean Sea disputes did the Council recommend the parties to turn to the International
Court.
Probably the most famous Security Council resolution recommending a set of principles to be taken into account in resolving a particular
dispute is resolution 242 (1967) dealing with the Middle East. This resolution pointed to two basic principles to be applied in establishing a justand lasting peace in the Middle East: first, Israeli withdrawal 'from territories occupied in the recent conflict' (i.e. the Six Day War) and, secondly,
the termination of all claims of belligerency and acknowledgement of theright of every state in the area to live in peace within secure and recognised
frontiers. Various other points were referred to in resolution 242, including the need to guarantee freedom of navigation through international
waterways in the area, achieve a just settlement of the refugee problem
and reinforce the territorial inviolability of every state in the area throughmeasures such as the use of demilitarised zones. As well as listing thesefactors, deemed important in any Middle East settlement by the Security
99 See e.g. Luard, History, chapter 9, and Sl1156. See also S1514 and S11234, and Murty,

loo
lo'
lo'

'Settlement: p. 721.
Ibid. See also Luard, History, chapter 14.
See e.g. M r t y , 'Settlement: p. 721. See also T. Ehrlich, Cyprzls 1958-1967, Oxford, 1974.
Note also the appointment of Count Bernadotte and Dr Jarring as UN mediators in the
middle East in 1948 and 1967 respectively. See Luard, History, chapters 10 and 11, and
The Arab-Israeli Corlflict (ed. 1. N . Moore), Princeton, 3 vols., 1974.

TH E UNI TED NATIONS

1105

Council, the Secretary-General of the UN was asked to designate a special
representative to mediate in the dispute and keep the Council informedon the progress of his efforts. Thus, in this instance the Security Council proposed that a dispute be tackled by a combination of prescribedproposals reinforced by mediation.''"The General
Although the primary responsibility with regard to the maintenance ofinternational peace and security lies with the Security Council, this should
not be taken a> meaning that the General Assembly,'comprising all member states of the UN organisation, is denied a role altogether. It may discuss any question or matter within the scope of the Charter, including themaintenance of international peace and security, and may make recommendations to the members of the UN or the Security Council, provided
the Council is not itself dealing with the same matter.l0Wnder similar
conditions, the Assembly may under article 14 'recommend measures forthe peaceful adjustment of any situation regardless of origin, which itdeems likely to impair the general welfare or friendly relations among
nations'.'06 In practice, the resolutions and declarations of the General
Assembly (which are not binding) have covered a very wide field, fromcolonial disputes to alleged violations of human rights and the need forjustice in international economic affairs. The Assembly has also asserted
its right to deal with a threat to or breach of the peace or act of aggression
if the Security Council fails to act because of the exercise of the veto by apermanent member.'''
The role of the General Assembly has increased since 1945 due to two
factors: first, the existence of the veto in the Security Council renderedthat organ powerless in many important disputes since the permanent
members (USA, UK, USSR, France and China) rarely agreed with respect
to any particular conflict; and secondly the vast increase in the membership of the UN, which has had the effect of radicalising the Assembly andits deliberations.
lo3 Resolution 242 (1967) was reaffirmed in Security Council resolution 338 (1973).

See e.g. White, Keepiilg the Peace, part 11, and M. J. Peterson, The Geneml Assembly ill
World Politics, Boston, 1986.
lo' Articles 10, 11 and 12 of the UN Charter.
ln"otee.g. the General Assembly resolution 181(II) of 1947, recommending the partitionof Palestine into Jewish and Arab states and an international area around Jerusalem. Since
the territory was a mandated territory, there is room for argument that this resolution
was more than recominendatory only.
lo' Resolution 377(V),the 'Uniting for Peace' resolution. See further below, p. 1152.
'04

1106

I N T E R N A T I O N A L LAW

The Secretary-General'08
Just as the impotence of the Security Council stimulated a growing awareness of the potentialities of the General Assembly, it similarly underlined
the role to be played by the United Nations Secretary-General. By article
99 of the Charter, he is entitled to bring to the attention of the Security Council any matter which he thinks may threaten the maintenanceof international peace and security and this power is in addition to his
function as the chief administrative officer ofthe UnitedNations organisation under article 79.1°9In effect, the Secretary-General has considerable
discretion and much has depended upon the views and outlook of theperson filling the post at any given time, as well as the general politicalsituation.
The good offices role of the Secretary-General has rapidly expanded."'In exercising such a role, Secretaries-General have sought to act independently of the Security Council and General Assembly, in the former
case, in so far as they have not been constrained by binding resolutions(as for example in the Kuwait situation of 1990-1). The assumption ofgood offices and mediation activity may arise either because of independent action by the Secretary-General as part of the exercise of his
inherent powers1'' or as a consequence of a request made by the Security~ o u n c i l "or~ General ~ s s e m b l y . "In~ some cases, the Secretary-General
has acted upon the invitation of the parties thernselve~,"~and on otherlo8 See e.g. Rovine, First Fifty Years, and Cordier et al., Public Papers.
ln9 Under article 98, the Secretary-General also performs such other functions as are en-trusted to him by the General Assembly, Security Council, Economic and Social Council
and the Trusteeship Council.
See e.g. T. M. Franck, Fairness in International Latv and Institutions, Oxford, 1995, chapter
6; Perez de Cukllar, 'Role of the UN Secretary-General: p. 125, and T. M. Franck and
G. Nolte, 'The Good Offices Function of the UN Secretary-General' in Roberts andKingsbury, United Nations, Divided M'orld, p. 143.
"I See e.g. with regard to Abkhazia, Franck, Fairness, p. 207, and Central America, ibid.
See e.g. Security Council resolutions 242 (1967) regarding the Middle East; 367 (1975)
regarding Cyprus; 384 (1975) regarding East Timor; 435 (1978) regarding Namibia and713 ( 1991) regarding Yuposla\~ia.
See e.g. with regard to Afghanistan, General Assembly resolution ES-612, 1980, and The
Geneva Accords published by the United Nations, 1988, DPIl935-40420. As to Cambodia,
see Franck, Fairness, p. 184.
' I 4 See e.g. the General Peace Agreement of Rome between the Mozambique government
and RENAMO rebels in 1992, which called upon the UN to monitor its in~plen~entation.
The President of Mozambique called upon the Secretary-General to chair the key impleinelltation commissions and assist in other ways including the dispatch of monitors: see
Report of the Secretary-General, S124635,1992, and Franck, Fairnexs, p. 188. Note that in
his Report oil the Work of the Organisation, Ai5711, 2002, the Secretary-General noted"'TH E UNI TED NATIONS

1107

occasions, the Secretary-General has acted in concert with the relevant regional organisation."' In many cases, the Secretary-General will appointa Special Representative to assist in seeking a solution to the particular
The development of good offices and mediation activities first arose
as a consequence of the severe restrictions imposed upon UN operations
by the Cold War. The cessation of the Cold War led to greatly increased
activityby the UN and as a consequence the work of the Secretary-Generalexpanded as he sought to bring to fruition the wide range of initiatives
undertaken by the organisation. The experiences of Somalia and Bosnia inthe mid- 1990s and Iraq from 1991 to the 2003 war have been disappointing
for the organisation.
Peacekeeping and observer missions117
There is no explicit legal basis for peacekeeping activities in the UN Charter. They arose in the absence of the contribution of armed forces andfacilities to the UN as detailed in article 43. Accordingly, a series of arrangements and operations have evolved since the inception of the organisation, which taken together have established a clear pattern of acceptable
reaction by the UN in particular crisis situations. The broad bases for suchactivities lie in the general provisions in the Charter governing the powersof the Security Council and General Assembly. The Security Council, forexample, may establish such subsidiary organs as it deems necessary forthe performance of its functions (article 29) and those functions are laid
down in articles 34 (powers of investigation); 36, 37 and 38 (powers torecommend appropriate procedures or methods of dispute settlement);and 39 (powers of recommendation or decision in order to maintain or
restore international peace and security). The Security Council may, inthat he had used his good offices to facilitate national reconciliation and democratisation
in Myanmar (at p. 5),while stating that if requested he 'u~ouldpositively consider the useof my good offices' in seeking a peaceful solution in Nepal (at p. 4).
'I5 See e.g. with regard to the Secretary-General of the Organisation of American Statesconcerning the Central American peace process from the mid-1980s, Report of the UN
Secretary-General, A1421127 - S118688, 1987.
'I6 See, for the full list, http:llwcvcv.un.org/Deptsldpaiprev~dipift~prev~dip.htm.
' I 7 See e.g. D. W. Bowett, CTN Forces, London, 1964; United Nations, The Blue Helmets: A
Review of United Nations Peacekeeping, 2nd edn, New York, 1990; The Evolution of UN
Peacekeeping (ed. Tl'. 1. Durch), London, 1994; IVhite, Keeping the Peace; R. Higgins,
United Nations Peacekeeping Oxford, 4 rols., 1969-81; S. Morphet, 'UN Peacekeeping
and Election Monitoring' in Roberts and Kingsbury, United Nationz, Divided World,
p. 183; A. James, Peacekeepingin InternationalPolitic.c, London, 1990, and Simma, Charter,
pp. 648 ff.

1108

I N T E R N A T I O N A L LAW

particular under article 42, take such action by land, sea or air forces as
may be necessary to maintain or restore international peace and security. This is the basis for action explicitly taken under Chapter VII of theCharter.'''However, the majority of peacekeeping activities have not been so authorised and it is unlikely that article 42 can be seen as the legal basis
for all such activities. The Security Council can entrust functions to theSecretary-General under article 98 and this mechanism has proved significant in practice. The General Assembly has wide powers under articles 10 and 11 to discuss and make recommendations on matters within
the scope of the UN Charter, including recommendations concerning themaintenance of international peace and ~ecurity."~
Under article 14, theAssembly may recommend measures for the peaceful adjustment of any
situation regardless of origin which it deems likely to impair the general welfare or friendly relations among nations. It can, however, takeno binding decision in such matters.120The Assembly may also establish
such subsidiary organs as it deems necessary for the performance of its
functions (article 22) and entrust functions to the Secretary-General (article 98). It is because such operations fall somewhat between Chapter VI(peaceful settlement) and Chapter VII (enforcement) of the Charter, thatthe term 'Chapter Six and a Half' has been used.12'
Essentially peacekeeping involves the deployment of armed forces under UN control to contain and resolve military conflicts. Although originally intended to deal with inter-state conflicts, more recently peacekeeping forces have been used with respect to civil wars and other intra-state
conflicts. Again, primarily military deployments have expanded to include civilian personnel as more and more civil functions have been entrusted to such forces. There have been fifty-five peacekeeping missions
to date and there are currently thirteen in 0 ~ e r a t i o n .Peacekeepingl~~andobserver missions operate upon a continuum of UN activities and it is
The power of the Security Council to resort to force under article 42 is dealt with belo~v,
p. 1133.
'I9 Ho~vever,under article 11(2),~vhereaction is necessary on any question relating to themaintenance of international peace and security, the matter must be referred to the
Security Council.
See further below, p. 1151.
See e.g. T. Franck, Recoilrse to Force, Cambridge, 2002, p. 39. It seems to havebeen first used by Secretary-General Hammarskjold, see http://~vccw.un.org/Depts/
dpko/dpko/intro/ 1.htm.
See http://wwcv.un.org/peaceibnote010101.pdf (January 2003).

'I8

'"
'"
'"

THE UNITED NATIONS

1109

helpful to consider these operations together. Indeed, that continuum
has in recent years been extended to incorporate elements of enforcementa~ti0n.l~~
The origin of peacekeeping by the UN may be traced to truce supervision activities. The first such activity occurred in Greece, where
the UN Special Committee on the Balkans (UNSCOB) was created in
1 9 4 7 . ' ~ ~he UN Truce Supervision Organisation (UNTSO) was established in 1948 to supervise the truce in the 1948 Middle East
peacekeeping12' as such arose as a direct consequence of the problems
facing the Security Council during the Cold War. The first peacekeeping activity took place in 1956 as a result of the Suez crisis. The UN
Emergency Force (UNEF) was established by the General ~ s s e m b lto~ ' ~ ~position itself between the hostile forces and to supervise the withdrawalof British and French forces from the Suez Canal and Israeli forces fromthe Sinai peninsula. It was then deployed along the armistice line until
May 1967.
The second crucial peacekeeping operation took place in the Congo
crisis of 1960, which erupted soon after Belgium granted independence
to the colony and resulted in mutinies, insurrections and much confusedSee below, p. 1138 ff.
See General Assembly resolution 109. The operation lasted until 1954. See also K.
Birgisson, 'United Nations Special Committee on the Balkans' in Durch, Evolutiorl of
UAT Peacekeeping, chapter 5.
125 See Security Council resolution 50 (1948), and M. Ghali, 'The United Nations Truce
Supervision Organisation' in Durch, Evolution of UN Peacekeeping, chapter 6 . It has
expanded to supervise the armistice agreerneiits of 1949 and ceasefire arrangements ofJune 1967. See also the UN Military Observer Group in India and Pakistan (UNMOGIP)
established by Security Council resolutioli 47 (1948) to supervise the ceasefire in Jainmu
and Kashmir: see K. Birgisson, 'United Nations Military Observer Group in India andPalustan' in Durch, Evolution of LrNPeacekeeping, chapter 16.
This has been defined by the Secretary-General as 'the deployment of a United Nations
presence in the field, hitherto with the consent of all the parties concerned, normally
involvilig United Nations military alidior police personnel and frequently civilians as
well: A n Agenda for Peace, p. 11. Another definition was put forward by a former UN
Legal Counsel, who noted that peacekeeping operations were 'actions involving the useof military personnel in international conflict situations on the basis of the consent of allparties concerned and without resorting to armed force except in cases of self-defence',
E. Suy, 'Peacekeeping Operations' in A Harzdbook on International Orgallisations (ed.
R. J. Dupuy), Dordrecht, 1988, p. 379.
'" See General Assembly resolutions 997, 998 and 1000 (ES-1). The Security Council was
unable to act as two perinaiient inembers (the UK and France) were directly involved i11
the crisis and had vetoed draft resolutions. See e.g. M. Ghali, 'United Nations Emergency
Force I' i11 Durch, Evolution of UN Peacekeeping, chapter 7.
12'

'"

1110

I N T E R N A T I O N A L LAW

fighting. The Security Council adopted a resolution permitting theSecretary-General to provide military assistance to the Congo government.12' This was interpreted by Dr Hammarskjold, the SecretaryGeneral, as a mandate to set up a peacekeeping force on an analogy with
UNEF. The exercise of the veto in the Council left the Secretary-Generalwith little guidance as to how to proceed in the situation. Accordingly,
he performed many of the tasks that had in 1956 been undertaken by theGeneral Assembly with respect to the Middle ~ a s t .The' ~ development~
ofthe Congo crisis from mutiny to civil war meant that the United Nations
force (known as ONUC from the French initials) was faced with manydifficult decisions and these had in the main to be taken by the SecretaryGeneral. The role that could be played by the Secretary-General was emphasised in the succeeding crises in Cyprus (1964)'" and the Middle East
(1973)lj1and in the consequent establishment of United Nations peacekeeping forces for these areas under the general guidance of the SecretaryGeneral.
The creation of traditional peacekeeping forces, whether in the Middle
East in 1967 and again in 1973, in the Congo in 1960 or in Cyprus in
1964, was important in that such forces tended to stabilise particular situations for a certain time. Such United Nations forces are not intended to'" S14387, 14 July 1960. By resolution S14405, 22 July 1960, the Council requested all states
to refrain from action which might impede the restoration of law and order or iuldermine the territorial integrity and political independence of the Congo. By resolution
S14426, 9 August 1960, the Council confirmed the authority given to the SecretaryGeneral by earlier resolutions and called on member states to carry out the decisionsof the Security Council. See e.g. G. Abi-Saab, The United Nations Operation in theCongo 1960-1964, Oxford, 1978; C. Hoskyns, The Congo Since Independence, Oxford,
1965; L. Miller, 'Legal Aspects of UN Action in the Congo: 55 AJIL, 1961, p. 1, and W.
J. Durch, 'The UN Operation in the Congo' in Durch, Evolution of U N Peacekeeping,
chapter 19.
See Abi-Saab,Congo, pp. 15 ff.
' O See Secmity Council resolution 186 (1964). See also Ehrlich, Cyprus 1958-1967, J. A.
Stegenger, The United Nations Force in Cyprus, Columbus, 1968, and K. Birgisson, 'United
Nations Peacekeeping Forces in Cyprus' in Durch, Evolution uf ULNPeacekeeping,chapter
13. The force is known as the UN Force in Cyprus (UNICYP).
"IThe Security Council established the UN Emergency Force (UNEF 11) to monitor the
Israel-Egyptian disengagement process in 1973: see resolution 340 (1973), and a Disengagement Observer Force with respect to the Israel-Syria disengagement process: see
resolution 350 (1974). See generally Pogany, Arab-Israeli Conflict, and M. Ghali, 'United
Nations Emergency Force 11' in Durch, Evolution of LrN Peacekeeping, chapter 8. Notealso the creation of the UN Interim Force in the Lebanon (UNIFIL) established by theCouncil in resolution 425 (1978) after Israel's incursioil into the Lebanon in 1978: seee.g. M. Ghali, 'United Nations Interim Force in Lebanon' in Durch, The Evolution of UN
Peacekeeping, chapter 10.

THE UNITED NATIONS

1111

take enforcement action, but to act as an influence for calm by physicallyseparating warring factions. They are dependent upon the consent of thestate upon whose territory they are stationed and can in no way preventa determined aggression. The various United Nations peacekeeping operations have met with some limited success in temporarily preventing
major disturbances, but they failed to prevent the 1967 Arab-~sraeliwar1j2
and the 1974 Turkish invasion of
One has to be careful not tooverestimate their significance in difficult political situations. In addition
to the consent of the host state, such forces also require the continuing
support of the Security Council and if that is lost or not provided suchforces cannot operate.'j4 Just as crucial as these factors is the provisionof sufficient resources by the UN and its member states in order to fulfil
the agreed mandate. Recent events in Bosnia, for example, have demonstrated that the absence of adequate resources impacts severely upon theprospects of such operations.
Nevertheless, peacekeeping and observer operations do have a roleto play, particularly as a way of ensuring that conflict situations in theprocess of being resolved do not flare up as a result of misunderstandings
or miscalculations. Some recent UN operations in this area demonstratethis.13"he
UN Good Offices Mission in Afghanistan and Pakistan wasestablished in the context of the Geneva Accords of 14 April 1988 dealing, ' ~ ~the UN
with the withdrawal of Soviet forces from ~ f ~ h a n i s t a nwhile
Iran-Iraq Military Observer Group was created the same year following
the acceptance by the belligerent states of Security Council resolution 598
In fact the hasty ~vithdrawalof the UNEF in May 1967 by the Secretary-General following
an Egyptian request did much to precipitate the conflict. See generally Special Report of
the Secretary-General on Removal of UNEF from Egyptian territory, A16669, 1967, andT. M. Franck, Nation Against Nation, Oxford, 1985.
See e.g. Security Council resolution 359 (1974) criticising the Turkish invasion.
' j 4 The Israel-Egypt Peace Treaty of 1979 envisaged the deployment of a UN force suchas UNEF to supervise the limited forces zones established by the parties but, due toSoviet action, the mandate of UNEF I1 expired in July 1979: see e.g. M. Akehurst, 'The
Peace Treaty Between Egypt and Israel', 7 International Relations, 1981, pp. 1035,1046, and
M. N. Sham., 'The Eg~ptian-IsraeliPeace Treaty, 1979: 2 Jewish LatvAnnual, 1980, pp. 180,
185. As a result, a special Multinational Force and Observers unit was established by theparties and the United States, independently of the UN: see 20 ILM, 1981, pp. 1190 ff. See
also M. Tabory, The Multinational Force and Observers in the Sinai, Boulder, 1986, andJames, Peacekeeping pp. 122 ff.
13' See generally White, Keeping the Peace.
136 See Sl19836 and Security Council resolution 622 (1988). This activity continued until
1990: see Morphet, 'UN Peacekeeping: p. 213. See also K. Birgisson, 'UnitedNations Good
Offices Mission in Afghanistan and Pakistan' in Durch, Evolilfion of UN Peacekeeping,
chapter 18.

13'

"'

1112

I N T E R N A T I O N A L LAW(1987) calling for a ceasefire.13' In 1989, in the context of the resolution of
the Namibian problem, the UN Angola Verification Mission (UNAVEM I)
commenced operation in order to verify the withdrawal of Cuban forcesfrom ~ n g o l a while, ~ ~ ~the UN Transition Assistance Group, althoughoriginally established in 1978 in Security Council resolution 435 (1978),in fact commenced operations with the Namibian independence process
on 1 April l989.lj9
In 1992, the UN Operation in Mozambique (ONUMOZ) was established in order to monitor the peace agreement between the Government
and RENAMO rebels,I4Owhile a UN Observer Group for the Verificationof Elections in Nicaragua (ONUVEN) were sent to monitor elections inthat country following the 1987 Esquipulas Agreement. This mission isof some interest in being the first electoral observer mission to monitor elections in an independent state. It was also established by virtueof an agreement between Nicaragua and the Secretary-General, which
was noted by the Security Council and endorsed by the General Assembly.141 A UN Observer Group in Central America (ONUCA) was alsoestablished in November 1989 in order to observe and verify regional
peacemaking arrangements.'" In 1990, the UN set up a mission to su~
to hold a referendum inpervise elections in Haiti ( O N U V E H ) . ' ~Efforts
This was to monitor the ceasefire and lasted until February 1991: see e.g. Morphet, 'UN
Peacekeeping', p. 213, and B. Smith, 'United Nations Iran-Iraq Military Observer Group'in Durch, Evolution of UNPeacekeeping, chapter 14.
Security Council resolution 626 ( 1988). This was completed in 1991. The Security Council then established UNAVEM I1 to monitor the implementation of the peace accords
bet~veenthe Angolan government and the UNITA rebels: see Security Council resolution
696 (1991), and V. P. Fortna, 'United Nations Angola Verification Mission I' in Durch,
Evolution of UNPeacekeeping, chapter 21, and Fortna, 'UnitedNations Angolaverification
Mission 11' in Durch, Ezlolution of UNPeacekeeping, chapter 22. This ended in February
1995.
' j 9 Security Council resolution 632 (1989). UNTAG monitored the withdrawal of South
African troops, confined SWAP0 forces to their bases in Angola and Zaire and assisted
in the election process. The operation ended in March 1990. See V. P. Fortna, 'United
Nations Transition Assistance Group in Namibia' in Durch, Evolution of LTNPeacekeeping,
chapter 20.
'40 See Security Council resolution 797 (1992) and above, p. 1106. The mission ended in
December 1994.
14' See Security Council 637 (1989). See also Morphet, 'UN Peacekeeping', pp. 216 ff.,andFranck, Fairness, pp. 105 ff.
See Security Council resolution 644 (1989), which endorsed the Secretary-General's efforts to create ONUCA. The mission ended in January 1992. See B. Smith and Mr.J.
Durch, 'UN Observer Group in Central America' in Durch, Evol~~tionofUNPeacekeeping,
chapter 24.
14' See A1441965 and General Assembly resolution 4512. See also Franck, Fairness, pp. 106 ff.

THE UNITED NATIONS

1113

Western Sahara are being assisted by the UN Mission for the Referendum~ ~ ~ the UN Observer Mission in El
in Western Sahara ( M I N U R S O ) ,while
Salvador was established to verify that the government and rebels in the El
Salvador civil war complied with the 1990 peace accord, including human rights provision^.'^^ In addition, the UN Iraq-Kuwait Observer Mission (UNIKOM) was set up to monitor the demilitarised zone between
these two states following the Gulf
The UN Advance Mission in
Cambodia ( U N A M I C ) ' ~was~ established pursuant to peace efforts in thecivil war in that country and was followed by the UN Transitional Authority in Cambodia (uNTAc).'~~This body was unlike other peacekeeping
operations since it was intended to exercise governmental functions pending elections in the country. Until it ended in September 1993, UNTAC
not only exercised important administrative functions, it also organised
the whole election process and played a part in securing human rights
and repatriation.
Further examples of crucial and complex peacekeeping and/or observer activities include observing Eritrea's plebiscite on secession fromand South Africa's elections in 1994,'" supervising the demilitarisation of Eastern Slavonia, Baranja and Western Sirmium (Croatia)
and inter alia overseeing the return of refugees, training a police force, organising elections and facilitating the removal of mines from the area,151
monitoring the demilitarisation of the Prevlaka Peninsula in ~ r o a t i a , ' ~ ~assisting the Haitian government in the professionalisation of the policeand maintaining a secure environment.lj3
144 See e.g. Security Council resolution 690 (1991). See also W. J. Durch, 'United Nations

Mission for the Referendum in Western Sahara' in Durch, Evolution of UNPeacekeeping,
chapter 23.
1 4 5 See Security Council resolution 693 (1991). This mission ended in April 1995.
See Security Council resolution 689 (1991).
14'
Security Council resolution 717 (1991). This lasted until March 1992.
' I S Secmity Council resolution 745 (1992). See also Morphet, 'UN Peacekeeping', p. 223.
This was the first peacekeeping body to be voted for by Russia, upon the demise of the
USSR, and also the first to include Japanese personnel, ibid., p. 224.
149 See General Assembly resolution 471114, 1992, and A1471544.
Is0 See Security Council resolution 894 (1994). Over 1,800 electoral observers were sent: seeFranck, Fairness, 17. 107.
l S 1 The UN Transitional Administration for Eastern Slavonia, Baranja and Western Sirmium(UNTAES):see Security Council resolution 1037 (1996). This mission has both a military
and a civilian component.
Is'
The UN Mission of Obser~rersin Prevlaka (UNMOP), Security Council resolution 1038
(1996).
l S 3 The UN Support Mission in Haiti (UNSMIH): see Security Council resolution 1063
(1996). In Tune 1996, this mission succeeded the UN Mission in Haiti (UNMIH) created1114

I N T E R N A T I O N A L LAW

The UN Mission in Ethiopia and Eritrea is a more traditional operation, aimed at overseeing a ceasefire between the two states and assistingthem in delimiting and demarcating the boundary.'j4 The UN Observer
Mission in Georgia has since 1993 been trying to resolve the Abkhaz conflict in Georgia. Its mandate has been expanded and extended since thattime.I5"heUN played an extensive role in the move to Timor-Leste
independence. The establishment of the UN Mission in East Timor in1999 provided a mandate to oversee a transition period pending implementation of the decision of the people of that territory under Indonesian
occupation as to their future. After the elections and the vote for independence, pro-Indonesian militias commenced a campaign of violence
and, after an agreement with Indonesia, the UN adopted resolution 1264
(1999) establishing a multinational force under Australian command torestore peace and security. The UN Transitional Administration in East
Timor was established by resolution 1272 (1999) with powers to administer the territory until independence. At the time of the independence ofthe territory of Timor-Leste in May 2002, the UN Mission of Support in
East Timor was established to replace UNTAET."~
The legal framework for the actual conduct of peacekeeping and observer activities reflects their status as UN organs, so that they are, forexample, subject to the law governing the UN organisations as a whole,such as that concerning the privileges and immunities of UN personnel'57
and responsibility.158The UN would be liable for breaches of law committed by members of peacekeeping and observer forces and groups andwould, on the other hand, be able to claim compensation for damage andl''by resolution 867 (1993) to assist the military and police forces in that state. Ho~vever,it
was prevented from deploying. In resolution 940 (1994) the Security Council authorised
the creation of a Multi-National Force (MNF): see below, p. 1122, and extended the
mandate and scope of UNMIH. After the restoration of the ousted President and thesubsequent holding of elections, UNMIH took over responsibility from the MNF (March
1995). See also e.g. the UN Observer Mission in Georgia, Security Council resolution 858(1993); the UN Aouzou Strip Observer Group, Security Council resolution 915 (1994)
and the UN Mission of Observers in Tajikistan, Security Council resolution 968 (1994).
See further below, p. 1139, for the Yugoslav missions.
See e.g. Security Council resolutions 1312 (2000), 1320 (2000), 1344 (2001), 1369 (2001),
1398 (2002), 1430 (2002), 1434 (2002) and 1466 (2003).
See e.g. Security Council resolutions 849 (1993), 881 (1993), 1077 (1996), 1364 (2001)
1393 (2002), 1427 (2002) and 1462 (2003).
See resolution 1410 (2002). See also, with regard to the UN administration of East Timorand Kosovo, above, chapter 5, p. 209 ff.
See in particular the General Convention on the Privileges and Immunities of the United
Nations, 1946.
See also Simma, Charter, pp. 694 ff.

THE UNITED NATIONS

1115

injuries caused to its personnel. Where forces are stationed on the territory of a state, the usual practice is for formal agreements to be enteredinto between that state and the UN concerning, for example, facilities,
logistics, privileges and immunities of persons and property, and disputesettlement procedures. In 1990, the Secretary-General produced a Model
Status of Forces Agreement for Peacekeeping Operations,'" which covers
such matters. It notes, for instance, that the peacekeeping operation andits members are to respect all local laws and regulations, while the government in question undertakes to respect the exclusively international
nature of the operation. Jurisdictional and military discipline issues arealso dealt with. The UN has also adopted the Convention on the Safety ofUnited Nations and Associated Personnel, 1994 in order to deal with thesituation where the UN operation is not an enforcement operation authorised under Chapter VII of the Charter, in combat with local forces andoperating under the laws of armed conflict. The Convention lays downthat the UN and the host state should conclude as soon as possible anagreement on the status of the UN operation and all personnel engaged
in the operation, including privileges and immunities issues (article 4),
and stipulates that the UN and its personnel shall respect local laws andregulations and refrain from any action or activity incompatible with theimpartial and international nature of their duties (article 6). The Convention provides that the intentional commission of activities such as themurder or kidnapping of UN or associated personnel, attacks on official
premises or private accommodation or means of transportation, are to bemade criminal offences under national law (article 9), while states parties
must take such measures as are necessary to establish jurisdiction in suchcases when the crime is committed within their territory (or on board aship or aircraft registered in that state) or when the alleged offender is anational (article 10). In addition, states parties may establish jurisdiction
when the crime has been committed by a stateless person whose habitualresidence is in the state concerned or with regard to a national of that state
or in an attempt to compel that state to do or abstain from doing any act(article 10).l6'
The question as to whether UN forces are subject to the laws of armed
conflict161has proved controversial. Since the UN is bound by general international law, it is also bound by the customary rules concerning armed
15'
16'

Al451594.
The Convention also deals with extradition (articles 13-15) and the fair treatment ofalleged offenders (article 17).
See above, chapter 21, p. 1063.

1116

I N T E R N A T I O N A L L AW

conflict, although not by the rules contained only in treaties to which the
UN is not a party. Can the United Nations in its various operations involving military personnel in either an enforcement or peacekeeping capacity
within states be regarded as subject to international humanitarian law?
The problem has arisen in the light of whether such UN activities may
be properly classified as 'armed conflict^'.'^^ The question of the application of international humanitarian law to operations has been a matter ofsome concern and a model agreement was put forward in 1991. While theissue proved little of a problem with regard to UN enforcement actions,where it has long been accepted that the rules of humanitarian law applied,163althoughthere may be a countervailing pressure since article 2(2)of the Convention on the Safety of United Nations Personnel provides that
the Convention will not apply to a UN enforcement operation 'to which
the law of international armed conflict applies', difficulties have arisen
where the UN has become involved in operations of a mixed peacekeepinglenforcement character. However, the Model Agreement prepared by
the Secretary-General in May 1991 specified that 'United Nations peacekeeping operations shall observe and respect the principles and spirit of
the general international conventions applicable to the conduct of military operation^"^^ and status of forces agreements signed by the UN
with host countries usually contain a provision that humanitarian law
applies.165
On 6 August 1999, the UN Secretary-General addressed the difficulty
and issued a statement declaring that
The fundamental principles and rules of international huinanitarianlaw. . . are applicable to United Nations forces when in situations of armed
conflict they are actively engaged therein as combatants, to the extent and'" See L. Green, The Contetnporary Law of Armed Conflict, 2nd edn, Manchester, 2000,
chapter 20.
'" See e.g. D. Mi.Bowett, United Nations Forces, London, 1964, p. 56.
'64

These conventions would include the 1949 Geneva Conventions and the 1977 Protocols
as well as the Convention on the Protection of Cultural Property, 1954: see Green, Artned
Conflict, p. 344; C. Greenwood, 'International Humanitarian Law and United Nations
Military Operations: 1 Yearbook of International Ht~tnanitarianLaw, 1998, p. 3, and
D. Shraga, 'UN Peacekeeping Operations: Applicability of International Humanitarian
Responsibility for Operations-Related Damage: 94 AIIL, 2000, p. 406.
See e.g. the agreement with Rwanda in 1993 on the status of the UN Mission in thatcountry, Shraga, 'UN Peacekeeping Operation', p. 325, footnote 16, and S126927, 1993,
para. 7. Note also the resolutions adopted by the Institut de Droit International statingthat the laws of armed conflict apply to the UN, 54 (11) Annuaire de l'lnstitut de Droit
International, 1971, p. 465, and 56 Annuaire de l'lnxtitut de Droit International, 1975,
p. 540.

THE UNITED NATIONS

1117

for the duration of their engagement. They are accordingly applicable inenforcement actions, o r in peacekeeping operations when the use of force
is permissible i n self-defence.'66

Conclusion
The functioning of the United Nations system for the preservation andrestoration of world peace has not been a tremendous success in the
broadest strategic sense. It constitutes merely one additional factor ininternational disputes management and one often particularly subject topolitical pressures. The United Nations has played a minimal part in someof the major conflicts and disputes since its inception, whether it be the
Cuban missiles crisis of 1962 or the Vietnam war, the Soviet intervention
in Czechoslovakia and Afghanistan or the Nigerian and Angolan civil
wars.
Nevertheless, the position of the United Nations improved with theending of the Cold War and the substantial changes in the approachof the USSR, soon to be Russia, in particular.'" More emphasis was laid
upon the importance ofthe UN in the context of an increased co-operation
with the US. This began to have a significant impact upon the work andachievements ofthe UN. The new co-operative approach led to the agreements leading to the independence of Namibia, while substantial progress
was made by the five permanent members ofthe Security Council in working out a solution to the Cambodian problem. The long-running disputewith Iraq and how to deal with its failure to comply fully with Security
Council resolution 687 (1991) appeared to mark a further moment ofachievement with the adoption of resolution 1441 (2002). However, theunanimity of the Council fractured and, amid deep division, the US andthe UK commenced a military action against Iraq in March 2 0 0 3 . ' ~ ~The range and extent of activities engaged in by the UN is startling by
past experience. UN missions may not onlybe used now to stabilise a tense
166 STlSGBl1999113. But see P. Rowe, 'Maintaining Discipline in United Nations Peace Sup-port Operations', 5 Journal of Conflict and Sectlrity Latv, 2000, pp. 45, 52 ff. See also
A. J. T. Dorenberg, 'Legal Aspects of Peacekeeping Operations: 28 The Military Latv andLaw o f War Review, 1989, p. 113, and F. Hampson, 'States' Military Operations Authorisedby the United Nations and International Humanitarian Law' in The United Nations andIr~terr~ational
Hurnarlitarian Law (eds. L. Condorelli, A. M. LaRosa and S. Scherrer), Paris,
1996, p. 371.
16' See e.g. A. Roberts and B. Kingsbury, 'The UN's Role in International Society since 1945'
in Roberts and Kingsbury, United Nations, Divided World, p. 1.
See further below, p. 1137.

1118

I N T E R N A T I O N A L L AW

situation in the traditional exposition of the peacekeeping approach, they
may also be utilised in order to carry out key administrative functions;verify peace agreements both international and internal; monitor the implementation of human rights accords; supervise and monitor elections;train and oversee police forces; oversee withdrawal and demilitarisation
arrangements, and assist in demining operations.
The Secretary-General has recently emphasised that there are three particularly important principles of peacekeeping.'(j9 These are the consent
ofthe parties, impartiality and the non-use of force. While these three may
characterise traditional peacekeeping and observer missions, even as thesehave extended during the 1990s, they do not apply necessarily to a newform of peacekeeping that is mandated under Chapter VII of the Charter.17' TO seek to revitalise the structure, the Secretary-General mandated
a Panel on UN Peace Operations to conduct a thorough review. In the
Panel Report, a series of recommendations were made.171These included
encouraging a more frequent use by the Secretary-General of fact-finding
missions to areas of tension in support of short-term crisis-preventive
action and a doctrinal shift in the use of civilian police and related rule oflaw elements in peace operations that emphasises an increased focus on,
and team approach to, upholding the rule of law and human right^."^
The Panel reaffirmed that consent of the local parties, impartiality andthe use of forces only in self-defence constitute the 'bedrock principles ofpeacekeeping', but noted that consent could sometimes be manipulated
and that impartiality must take into account adherence to UN principles.
Equal treatment where one party is violating such principles could not
be a~ceptable."~The Panel also called for improved standby arrangements to enable forces to 'meet the need for the robust peacekeeping
forces that the Panel has advocated"74 and 'robust rules of engagement
against those who renege on their commitments to a peace accord orotherwise seek to undermine it by ~ i o l e n c e ' . 'A~ ~variety of other recommendations have also been made and the implementation process~ommenced.'~~S u p p l e ~ n e n tot a n Agenda for Peace, Al50160, 1995, para. 33.
See below, p. 1138.
171 See Al551305-Sl20001809,21 August 2000 and 39 ILM, 2000, p. 1432. The Report is also
termed the Brahimi Report after its chair.
17' Ibid., paras. 29 ff.
L73 Ibid., paras. 48 ff.
Ibid., paras. 86 ff.
1 7 j Ibid., para. 55.
176 See e.g. the Secretary-General's Report o n Implementation of 20 October 2000, A1551502
and the Implementation Reports of 1 June and 21 December 2001, A1551977 and1561732.

'61

THE UNITED NATIONS

1119

The collective security system"7
The system established by the United Nations for the maintenance ofinternational peace and security was intended to be comprehensive in its
provisions and universal in its application. It has often been termed acollective security system, since a wronged state was to be protected byall, and a wrongdoer punished by all. The history of collective security
since 1945 demonstrates how flexibility and textual interpretation have
prevented the system from failing completely.

The Security Council
The original scheme by which this was achieved laid great stress upon
the role of the Security Council, although this has been modified to someextent in practice. By article 24 ofthe United Nations Charter, the Council
was granted primary responsibility for the inaintenailce of international
peace and security, and its decisions are under article 25 binding upon
all member states. It was thus intended to fulfil a dynamic, executivefunction.
While actions adopted by the Security Council in pursuance of Chapter
VI ofthe Charter, dealing with the pacific settlement of disputes, are purely
recommendatory, matters concerning threats to, or breaches of, the peaceor acts of aggression, under Chapter VII, give rise to decision-making
powers on the part of the Council. This is an important distinction andemphasises the priority accorded within the system to the preservationof peace and the degree of authority awarded to the Security Council toachieve this. The system is completed by article 103 which declares thatobligations under the Charter prevail over obligations contained in otherinternational agreement^."^"' See e.g. Franck, Fairness, chapter 9; R. Higgins, Problems and Process, Oxford, 1994,''''Securite Collective et Organisation de la Paix: 97 RGDIP, 1993,
chapter 15; P. M. DLI~LI)~
p. 617; G. Gaja, 'Reflexions sur le RBle du Conseil de Securite dans le Nouvel Ordre
Mondial', ibid., 17. 297; T. M. Franck and F. Patel, 'UN Police Action in Lieu of War:"The Older Order Changeth" ', 85 AJIL, 1991, p. 63; Nguyen Quoc Dinh, P. Daillier and
A. Pellet, Droit International Public, 7th edn, Paris, 2002, p. 989, and Simma, Charter,
pp. 701 ff.
See the Lockerbie case, ICJ Reports, 1992, p. 3; 94 ILR, p. 478. But see the discussion ofge
in the second provisional measures order in the Genocide
article 103 by J ~ ~ dLauterpacht(Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)) case, ICJ Reports, 1993,
pp. 325,440; 95 ILR, pp. 43, 158, and by Judge Bedjaoui in the Lockerbiecase,ICJ Reports,
1992, pp. 3,47; 94 ILR, pp. 478,530.

1120

I N T E R N A T I O N A L LAW

Determination of the situation
Before the Council can adopt measures relating to the enforcement ofworld peace, it must first 'determine the existence of any threat to thepeace, breach of the peace or act of aggression'. This is the key to thecollective security system. Once such a determination has been made, in
accordance with article 39 of the Charter, the way is clear for the adoptionof recommendations or decisions to deal with the situation. In particular,
the adoption of Chapter VII enforcement action constitutes an exception
to the principle stated in article 2 ( 7 ) of the Charter according to which
the UN is not authorised 'to intervene in matters which are essentiallywithin the domestic jurisdiction of any state'.
The question is thus raised at this juncture as to the definition of a threat
to, or breach of, the peace or act of aggression. The answer that has emergedin practice is that it depends upon the circumstances of the case.179It also
depends upon the relationship of the five permanent members of theCouncil (United Kingdom,
United States of America, Russia, China andFrance) to the issue under consideration, for a negative vote by any of thepermanent members is sufficient to block all but procedural resolutions' ~ ~ veto has been one of the major causes of the failureof the C o ~ n c i l .Thisof the Council in its appointed task of preserving international peace andsecurity.
Threat to the peace is the broadest category provided for in article 39
and the one least susceptible to precise definition. In a sense it constitutes
a safety net for Security Council action where the conditions needed for abreach of the peace or.act of aggression do not appear to be present. It isalso the category which has marked a rapid evolution as the perception
as to what amounts to a threat to international peace and security has
broadened. In particular, the concept has been used to cover internalsituations that would once have been shielded from UN action by article
2 ( 7 ) of the Charter.
A threat to the peace was first determined in the 1948 Middle East War,when in resolution 54 ( 1948),the Security Council found that the situation
created by the conflict in the former mandated territory of palestine where
neighbouring Arab countries had entered the territory in order to conduct
hostilities against the new state of Israel constituted 'a threat to the peace
within the meaning of article 39' and demanded a ceasefire. In resolution
See M%ite, Keepiilg the Peuce.
lS0 Article 27 of the UN Charter.

THE UNITED NATIONS

1121

221 (1966) the Council determined that the situation of the minority
white regime in Rhodesia constituted a threat to the peace."'
With the cessation of the Cold War, the Security Council has been able
to extend its activities under Chapter VII to a remarkable extent. In resolution 713 (1991) the Council determined that the situation in former~ u ~ o s l a v i constituteda'~~a threat to the peace and in resolution 733(1992), it was held that the situation in Somalia amounted to a threat topeace. In resolution 794 (1992), the Council underlined that 'the magnitude ofthe human tragedy caused by the conflict in Somalia, further exacerbated by the obstacles being created to the distribution of humanitarianassistance, constitutes a threat to international peace and security'.'83 In
resolution 788 (1992) the Council decided that the deteriorating civil war
situation in Liberia constituted a threat to international peace, while inresolution 955 (1994), it was determined that the genocide in Rwanda
constituted a threat to international peace and security. The latter threecases were clearly internal civil war situations and it could be said that thesituation in Yugoslavia at the time of the adoption of the 1991 resolution
was also a civil war situation, although this is more complex. Further resolutions with regard to former Yugoslavia determined that threats to thepeace were involved.1s4In another move of considerable importance, theCouncil has also determined that 'widespread violations of international
humanitarian law' constitute a threat to peace.''' Resolutions concerning~that the civil war in that country constituted
Sierra ~ e o n e "affirmeda threat to international peace, while resolutions concerning the mixed
civil warlforeign intervention conflicts in the Democratic Republic of theCongo affirmed that there existed a 'threat to international peace andsecurity in the region:lS7
A further expansion in the meaning in practice of a threat to international peace and security took place with regard to Libya. In resolution 748 (1992) the Council determined that 'the failure by the Libyan
See also Security Council resolution 217 (1965).
This situation was characterised by fighting 'causing a heavy loss of human life andmaterial damage, and by the consequences for the countries in the region, in particularin the border areas of neighbouring countries: ibid.
la3 See also Security Council resolution 751 (1992).
18"ee e.g. Security Council resolutions 743 (992), 757 (1992), 787 (1992) and 827 (1993).
See Security Council resolutions 808 (1993), with regard to former Yugoslavia, and 955(1994), with regard to Rwanda.
la6 See further below, p. 1145.
la' See further below, p. 1146.
18'

1122

I N T E R N A T I O N A L LAW

Government to demonstrate by concrete actions its renunciation ofterrorism and in particular its continued failure to respond fully and effectively
to the requests in resolution 731 (1992),ls8constitute a threat to international peace and security'. Again, in resolution 1070 (1996), the Council
determined that the failure of Sudan to comply with earlier resolutions
demanding that it act to extradite to Ethiopia for prosecution suspects on
its territory wanted in connection with an assassination attempt against
the President of ~ ~ y p tconstituted, ' ~ ~ a threat to international peace andsecurity. In both cases references to 'international terrorism' were madein the context of a determination of a threat to the peace. This constitutes
an important step in combating such a phenomenon for it paves the way
for the adoption of binding sanctions in such circumstances. This has
been reinforced by resolutions 1368 (2001) and 1373 (2001) adopted in
the wake of the 11 September bombings of the World Trade Center in
New York and of the pentagon.lg0
The Haiti situation similarly marked a development in the understanding by the Council as to what may amount to a threat to international
peace and security. UN observers monitored an election in that country in 1990, but on 30 September 1991 the elected President Aristide
was ousted. In a process which demonstrates the growing interaction between UN organs in crisis situations, the Secretary-General appointed aSpecial Representative for Haiti on 11 December 1991, the General Assembly authorised a joint UN-Organisation of American States civilian
mission on human rights (MICIVIH) on 20 April 1993,191and on 16 June
1993, the Security Council imposed an arms and oil embargo on Haiti
with sanctions to enter into force on 23 June unless the Secretary-Generaland the OAS reported that such measures were no longer ~ a r r a n t e d . " ~The Security Council referred to the fact that 'the legitimate Governmentof President Jean-Bernard Aristide' had not been reinstated and noted'the incidence of humanitarian crises, including mass displacements of
population, becoming or aggravating threats to international peace andsecurity'.'93 The Council determined therefore that 'in these unique andWhich called for the extradition of alleged bombers of an airplane over Lockerbie in 1988
to the US or UK.
l a y Security Council resolutions 1044 (1996) and 1054 (1996).
lyO See above, chapter 20, p. 1048.
l9' See General Assembly resolution 47120 B.
'" Security Council resolution 841 (1993).
l y 3 Note that in Security Council resolution 688 (1991), it had been determined that theconsequences of the Iraqi repression of its civiliail populatioil in different parts of thecountry, iilcluding areas populated by Kurds, involving considerable refugee flows overthe borders of Turkey and Iran threatened international peace and security.

TH E UNI TED NATIONS

1123

exceptional circumstances', the continuation of the situation constituted
a threat to international peace and security. Thus although the Security
Council did not go so far as to declare that the removal of a legitimate
government constituted of itself a threat to peace, it was clearly the precipitating factor that taken together with other matters could enable adetermination to be made under article 39 thus permitting the adoption of binding sanctions. The sanctions were suspended following theGovernors Island Agreement of 3 July 1993.19"owever, in resolution 873( 1 993), the Council determined that the failure by the military authorities
in Haiti to fulfil obligations under that agreement constituted a threat tointernational peace and security, and sanctions were reimposed.lg5As the
Appeal Chamber declared in the Tadii-case:Indeed, the practice of the Security Council is rich with cases of civil war
or internal strife which is classified as a 'threat to the peace' and dealt
with under Chapter VII . . . It can thus be said that there is a common
understanding, manifested by the 'subsequent practice' of the membershipof the United Nations at large, that the 'threat to the peace' of article 39
may include, as one of its species, internal armed conflicts.19h

After several decades of discussion and deliberation, a definition of
aggression was finally agreed upon by the United Nations General Assembly in 1 9 7 4 . ' ~Article~
1 provides that aggression is the use of armed
force by a state against the sovereignty, territorial integrity or politicalindependence of another state, or in any other manner inconsistent with
the United Nations Charter. A number of examples of aggressive acts are
given in article 3 and these include the use of weapons by a state against
the territory of another state, the blockade of the ports or coasts of a stateby the armed forces of another state,198and attack by the armed forces ofa state on the land, sea or air forces of another state and the sending by, oron behalf of, a state of armed bands to carry out acts of armed force against
another state.199This elucidation of some of the features of the conceptof aggression might prove of some use to the Security Council, but theCouncil does retain the right to examine all the relevant circumstances,
194 Security Council resolution 861 (1993).

'" Security Council resolution 873 (1993). Further sanctions were imposed in resolution
917 (1994). Sanctions were finally lifted by resolution 944 (1994), upon the restorationof President Aristide following a US-led operation in Haiti.
lY6 105 ILR, pp. 419,466.
19' General Assembly resolution 3314 (XXIX).
As, for example, the blockade of the Israeli port of Eilat in May 1967, above, chapter 20,
p. 1029.
See the Nicaragua case, ICJ Reports, 1986, pp. 14, 103-4; 76 ILR, pp. 349,437.

'"
'"

1124

I N T E R N A T I O N A L LAW

including the gravity of any particular incident, before deciding on thedetermination to make pursuant to article 39.200
Findings as to actual breaches of the peace have occurred four times. In
1950, as a result ofthe invasion of South Korea by North Korea, the Security
Council adopted resolutions determining that a breach of the peace had
occurred and calling upon member states to assist South ~ o r e a , ~while" inresolution 502 (1982) the Council determined that a breach of the peacein the Falkland Islands region had taken place following the Argentine
invasion. The third situation which prompted a finding by the Security
Council of a breach of the peace was in resolution 598 (1987) dealing
with the Iran-Iraq war, while the fourth occasion was in resolution 660(1990) in which the Council determined that there existed 'a breach ofinternational peace and security as regards the Iraqi invasion of Kuwait'.
Chapter VII measures202
Measures not involving the use of force203 Once the Security Council
has resolved that a particular dispute or situation involves a threat tothe peace or act of aggression, the way is open to take further measures.
Such further measures may, however, be preceded by provisional action
taken to prevent the aggravation of the situation. This action, provided
for by article 40 of theis without prejudice to the rights or
claims of the parties, and is intended as a provisional measure to stabilise
a crisis situation. Usual examples of action taken by the Security Council
under this provision include calls for ceasefires (as in the Middle Eastin 1967 and 1 9 7 3 ) ~ and' ~ calls for the withdrawal of troops from foreign
territory.206However, the adoption ofprovisionalmeasures by the Council
often has an effect ranging far beyond the confines of a purely temporary
The first finding as to aggression by the Security Council was in 1976 with regard to South
African action against Angola, Security Council resolution 387 (1976). See also Security
Council resolution 667 (1990) condemning aggressive acts by Iraq against diplomatic
premises and personnel in Kuwait.
'01 Security Council resolution Sl1501.
'02 See e.g. P. Conlon, 'Legal Problems at the Centre of United Nations Sanctions', 65 Nordic
Joinrnul of blternatioilal Law, 1996, p. 73.
'03 See e.g. M. Doxey, Econonlic Sanctions and Iizternational Enforcelllent, London, 1980;
J. Combacau, Le Pouvoir de Sanction de I'ONU, Paris, 1974; N . Schrijver, 'The Use of
Economic Sanctions by the UN Security Council: An International Perspective' in Interilational Econoiilic Law and Arined Coilflict (ed. H . Post), Dordrecht, 1994, and Economic
Sanctions: Panacea or Peace-Building in a Post-Cold War World (eds. D. Cortright and
G. Lopez), Boulder, 1995.
'04 See Simma, Charter, p. 729.
'05 See Security Council resolutions 234 (1967) and 338 (1973).
""eee.g.Security Council resolution 509 ( 1982),with regard to Israel's invasion ofLebanon.
"OTH E UNI TED NATIONS

1125

action. They may induce a calmer atmosphere leading to negotiations toresolve the difficulties and they may set in train moves to settle the dispute
upon the basis laid down in the Security Council resolution which called
for the provisional measures.
The action adopted by the Council, once it has decided that there exists
with regard to a situation a threat to the peace, breach of the peace or actof aggression, may fall into either of two categories. It may amount to theapplication of measures not involving the use of armed force under article
41, such as the disruption of economic relations or the severance of diplomatic relations, or may call for the use of such force as may be necessary
to maintain or restore international peace and security under article 42.
The Council has not until recently utilised the powers it possesses
under article 41 to any great extent. The first major instance of action notincluding the use of force occurred with respect to the Rhodesian situation
following upon the Unilateral Declaration of Independence by the whitelninority government of that territory in 1965.207In two resolutions in
1965, the Council called upon member states not to recognise or assist theillegal regime and in particular to break all economic and arms relations
with it.208The next year, the Council went further and imposed selective
mandatory economic sanctions upon ~ h o d e s i a , 'which~ ~ were extended
in 1968 and rendered c ~ m p r e h e n s i v e ,although~'~several states did act indefiance of these resolutions."' Sanctions were terminated in 1979 as aresult of the agreement leading to the independence of zimbabwe.'12
See e.g. Simma, Charter p. 735; Nguyen Quoc Dinh et al., Droit international Public,
p. 997; R. Zacklin, Tlie United Nutions and Rhodesia, New York, 1974; J. E. S. Fawcett,'Security Council Resolutions on Rhodesia: 41 RYIL, 1965-6, p. 103; M. S. McDougal
and It'. M. Reisman, 'Rhodesia and the United Nations: The Lawfulness of International
Concern', 62 AJIL, 1968, p. 1, and J. Nkala, The United Nations, lnternatioizal Law and
the Rhodesia Independence Crisis, Oxford, 1985. See also V. Gorvlland-Debbas, Collective
Responses to Illegal Acts in Internatioi~alLaw, Dordrecht, 1990, and Gowlland-Debbas,'Security Council Enforcement Action and Issues of State Responsibility', 43 ICLQ, 1994,
p. 55.
Security Council resolutions 216 (1965) and 217 (1965).
'09 Security Council resolution 232 (1966). Note that under Security Council resolution 221(1966) the Council interaliacalled upon the UK 'to prevent by the use offorce if necessary'
the arrival in Mozambique of vessels believed to be carrying oil for Rhodesia.
'lo Security Council resolution 253 (1968).See also Security Council resolution 409 (1977).
'I1 See N. Polakas, 'Economic Sanctions: An Effective Alternative to Military Coercion?', 6
Brooklyri Jouriial of lnter~iationalLaw, 1980, p. 289. Note also the importatioil by theUnited States of Rhodesian chrome and other minerals under the Byrd Amendment
between 1972 and 1977: see DUSPIL, 1977, 1lrashington, pp. 830-4.
"'Security Council resolution 460 (1979).See also 19 ILM, 1980, pp. 287 ff. Note in addition
Security Council resolutioil 418 (1977), which imposed an arms embargo upoil South
Africa.
'07

1126

I N T E R N A T I O N A L L AW

However, the most comprehensive range of economic sanctions thus
far imposed by the Security Council was adopted in the wake of the inva~ ~ ~ Council resolution
sion of Kuwait by Iraq on 2 August 1 9 9 0 . Security
661 (1990), noting that Iraq had failed to withdraw immediately and unconditionally from Kuwait2'%nd acting specifically under Chapter VIIof the Charter, imposed a wide range of economic sanctions upon Iraq,
including the prohibition by states of all imports from and exports to
Iraq and occupied ~ u w a i t ,and
~ ' ~the transfer of funds to Iraq and Kuwait
for such purposes. Additionally, the Security Council decided that statesshould not make available to the Government of Iraq or to any commercial, industrial or public utility undertaking in Iraq or Kuwait any funds
or any other financial or economic resources and should prevent theirnationals and persons within their territories from remitting any other,~~~anyfunds to persons or bodies within Iraq or ~ u w a i tnotwithstanding
existing contract or licence.
The Security Council also established a Committee consisting of all
members of the Council to oversee the implementation of these meas u r e ~ . ~Under~'
Security Council resolution 666 (1990), the Committee was instructed to keep the situation regarding foodstuffs in Iraq andKuwait under constant review and to bear in mind that foodstuffs (aspermitted under the terms of the previous resolutions) should be provided through the UN in co-operation with the International Committeeof the Red Cross or other appropriate humanitarian agencies and distributed by them or under their supervision. The Committee was additionally given the task of examining requests for assistance under article
50 of the Charter2'' and making recommendations to the President of the"' See Lauterpacht et al., Kuwait Crisis: Basic Documents; The K~livaitCrijis: Sanctioils andtheir Econonlic Consequences (ed. D. Bethlehem), Cambridge, 1991.
As required in Security Council resolution 660 (1990).
""partfrom supplies intended strictly for medical purposes and, 'in humanitarian circumstances: foodstuffs, paragraph 3(c).
" 6 Except payments exclusively for strictly medical or humanitarian purposes and, in humanitarian circumstances, foodstuffs, ibid., paragraph 4.
'I7 See e.g. M. Koskenniemi, 'Le Comite des Sanctions Cree par la Resolution 661 (1990) duConseil de Securite', AFDI, 1991, p. 121, and P. Conlon, 'Lessons from Iraq: The Functionsof the Iraq Sanctions Committee as a Source of Sanctions Implementation Authority andPractice', 35 Va. JIL, 1995, p. 632.
*I8 Article 50 provides that if preventive or enforcement measures against any state aretaken by the Security Council, any other state which finds itself confronted with special
economic problems arising from the carrying out of those measures shall have the rightto coilsult the Security Council with regard to a solution to those problems. Note also
the reference to article 50 in Security Council resolution 748 (1992), iinposing sanctions"4

TH E UNI TED NATIONS

1127

Security Council for appropriate action.219The binding economic sanctions imposed on Iraq because of its invasion and purported annexationof Kuwait were tightened in Security Council resolution 670 (1990), in
which the Council decided that all states, irrespective of any international
agreements or contracts, licences or permits in existence, were to denypermission to any aircraft to take off from their territory if the aircraft
was carrying cargo to or from Iraq or ~ u w a i t . ~In~addition,'states were
to deny permission to any aircraft destined to land in Iraq or Kuwait to
overfly their territory.22'
The economic sanctions were reinforced under Security Council resolution 665 (1990) which authorised those UN member states deploying maritime forces in the area in co-operation with the legitimate government of Kuwait 'to use such measures commensurate to the specificcircumstances as may be necessary under the authority of the Security
Council' in order to enforce the naval blockade on Iraq. The states concerned were requested to co-ordinate their actions 'using as appropriate
mechanisms of the Military Staffs
and after consultation
with the UN Secretary-General to submit reports to the Security Council
and the Committee established under resolution 661 (1990). It is unclear
whether given a substantial period of operation, this impressive range ofsanctions would have sufficed to compel Iraq to withdraw from Kuwait,
for on 16 January 1991 force was employed.
Having once established a comprehensive set of economic and financial sanctions together with mechanisms of supervision, it has become
easier to put in place similar responses to other situations. On 31 March
1992, the Security Council imposed a relatively restricted range of sanctions upon Libya due to the latter's refusal to renounce terrorism andrespond fully and effectively to the call in Security Council resolution 73 1
(1992) to extradite suspected bombers to the UK or
These sanctions imposed a mandatory arms and air embargo upon Libya. It also
called upon states to reduce significantly the number and the level of staff
upon Libya. See e.g. J. Carver and J. Hulsmann, 'The Role ofArticle 50 of the UN Charterin the Search for International Peace and Security', 49 ICLQ, 2000, p. 528.
'I9 Securitv Council resolution 669 (1990).
~,
220 Other than food in humanitarian circumstances subject to authorisation by the Council
or the Committee or supplies intended strictly for medical purposes.
221 Unless the aircraft was landing for inspection or the flight had been approved by theCommittee or the flight was certified by the UN as solely for the purposes of the UN
Iran-Iraq Military Observer Group (UNIIMOG).
--- See below, p. 1133.
22' Security Council resolution 748 (1992).
73,

1128

I N T E R N A T I O N A L LAW

at Libyan diplomatic missions and diplomatic posts. A Committee was
set up to monitor compliance with the sanctions. Resolution 1192 (1998)
provided inter alia for the suspension of the sanctions upon the certification by the Secretary-General of the arrival of the accused bombers in
the Netherlands for trial. This duly o ~ c u r r e d ~ ~ %then d President of theCouncil issued a statement on 9 July 1999 noting therefore the suspensionof the sanctions.225
On 30 May 1992, the Security Council in resolution 757 (1992) imposed a wide range of economic sanctions upon the Federal Republic of
Yugoslavia (Serbia and Montenegro), having imposed an arms embargo
upon all states within the territory of the former Yugoslavia in resolution
713 ( 1 9 9 1 ) . The~ ~ ~resolution, adopted under Chapter VII, prohibited theimportation of goods from the Federal Republic ofYugoslavia (Serbia andMontenegro) and the export or trans-shipment of such goods by states ortheir nationals and the sale or supply of any commodities or products toany person or body in the Federal Republic of Yugoslavia or to any person
or body for the purposes of any business carried on in or operated from it.
In addition, paragraph 5 of this resolution prohibited states from making
available to the authorities in the Federal Republic of Yugoslavia (Serbia
and Montenegro) or to any commercial, industrial or public utility undertaking there, any funds or any other financial or economic resources.
States were also to prevent their nationals and any persons within their territories from providing to anyone within the Federal Republic any funds
or resources at all, except for payments exclusively for strictly medical or
humanitarian purposes and foodstuffs. The sanctions were tightened inresolution 787 (1992), which decided that any vessel in which a majority or a controlling interest was held by a person or undertaking in or
operating from the Federal Republic was to be considered for the purpose of the sanctions regime as a Yugoslav vessel, irrespective of the flag
flown. Further maritime control measures were also adopted under thisresolution.
These sanctions were essentially extended by Security Council resolution 820 (1993) to areas of Croatia and Bosnia controlled by the Bosnian
Serb forces. In addition, the Danube River was included within the sanctions control system and the transport of all goods (apart from medical
supplies and foodstuffs) across the land borders to or from the ports oftheFederal Republic was prohibited. Resolution 820 also decided that states"4'26

See S119991726.
"5 See SlPRSTl1999122.
A Sanctioils Committee was established under Security Couilcil reaolutioi~724 (1991).

THE UNITED NATIONS

1129

were to impound all vessels, freight vehicles, rolling stock and aircraft intheir territories in which a majority or controlling interest was held bya person or undertaking in or operating from the Federal Republic. It
was further decided to prohibit the provision of services, both financial
and non-financial, to any person or body for purposes of any businesscarried on in the Federal Republic, except for telecommunications, postal
services, legal services consistent with resolution 757, and, as approved
on a case-by-case basis by the Sanctions
services whose
supply may be necessary for humanitarian or other exceptional purposes.
Paragraph 21 of the resolution provided for states to freeze funds of theauthorities in the Federal Republic or of commercial, industrial or public
utility undertakings there, and of funds controlled directly or indirectly
by such authorities or undertakings or by entities, wherever located ororganised, owned or controlled by such authorities or undertakings. Resolution 942 (1994) extended sanctions to cover economic activities carriedon within states by any entity owned or controlled, directly or indirectly,
by any person or entity resident in areas of Bosnia under the control of
the Bosnian Serb forces.
As negotiations progressed, the sanctions against the Federal Republicof Yugoslavia were progressively eased.228After the Dayton peace agreement was initialled, the arms embargo was lifted229and sanctions weresuspended indefinitely by resolution 1022 (1995) on 22 November 1995,
except with regard to Bosnian Serb forces. The resolution also provided forthe release of frozen assets, 'provided that any such funds and assets thatare subject to any claims, liens, judgments, or encumbrances, or which are
the funds of any person, partnership, corporation, or other entity foundor deemed insolvent under law or the accounting principles prevailingin such state, shall remain frozen or impounded until released in accordance with applicable law: Sanctions were fully lifted by resolution 1074
(1996) following the holding of elections in Bosnia as required under thepeace agreement and the Sanctions Committee was dissolved. Arms sanctions were reimposed in 1998 due to the Kosovo situation, but lifted in
2001.~~~'" See e.g. M. Scharf and J. Dorosin, 'Interpreting UN Sanctions: The Rulings and Role of
the Yugosla\~Sanctions Committee: 19 Brooklyrl Journal of Ir~ternationalLaw, 1993, p.
771.
22s

"'

'"

See e.g. Security Council resolutions 943 (1994), 988 (1995), 992 (1995), 1003 (1995)
and 1015 (1995).
Securlty Council resolution 1021 (1995).
See resolutioils 1160 (1998) and 1367 (2001).

1130

I N T E R N A T I O N A L LAW

Arms sanctions have also been imposed upon ~ o m a l i a , ~ ~w' a n d a , ~ ~ ~~ i b e r i aand
~ ~ Ethiopia~
and ~ r i t r e a An
. ~ ~arms~ embargo on Sierra~eone"' was extended to cover the import of rough-cut diamonds otherthan those controlled by the government under the certificate of origin
scheme.236An air embargo and a freezing of assets was imposed on the
Taliban regime in Afghanistan in 1 9 9 9 . ~ ~While'measures taken underarticle 41 have traditionally been economic sanctions, other possibilities
exist. The Council may, for example, call for action to be taken to reduce
the number and level.of diplomatic staff of the target state within otherstates.238More dramatically, the Council has on two occasions established international tribunals to prosecute war criminals by the adoptionof binding resolutions under Chapter ~ 1 1Further,. ~ ~the~ Council may
adopt a series of determinations concerning legal responsibilities of statesthat will have considerable consequences.
Security Council Resolution 687 (1991) constitutes the supreme illustration of such a situation. This laid down a series of conditions forthe ending of the conflict in the Gulf and the resolution was adopted
under Chapter VII of the Charter. The resolution demanded that Iraq
and Kuwait respect the inviolability of the international boundary as laid
down in the Agreed Minutes signed by Iraq and Kuwait on 4 October
1963. The Council then proceeded to guarantee the inviolability of thisinternational boundary, a development of great significance in the historyof the UN. The resolution also provided for the immediate deploymentof a UN observer unit to monitor a demilitarised zone to be establishedextending 10 kilometres into Iraq and 5 kilometres into Kuwait from the
See Security Council resolutions 733 (1992), 751 (1992), 1356 (2001), 1407 (2002) and
1425 (2002).

"'See resolutions 918 (1994), 1005 (1995), 1011 (1995), 1013 (1995), 1053 (1996) and 1161
(1998).
" See resolutions 788 (1992) and 985 (1995). Sanctions were terminated by resolution 1343

(2001).

See resolution 1298 (2000). Sanctions were terminated in pursuance of Presidential Statement SlPRSTl2001114 of 15 May 2001. Note that this was the first time that sanctions
had been imposed on both sides in a conflict: see C. Gray, 'From Unity to Polarisation:
International Law and the Use of Force against Iraq: 13 EJIL, 2002, pp. 1, 3.
235 See resolutions 1132 (1997) and 1171 (1998).
2'6 See resolutions 1306 (2000), 1385 (2001) and 1446 (2002).
*" See resolution 1267 (1999).
'38 See e.g. Security Council resolution 748 (1992), with regard to Libya.
*'"eeSecurity Council resolutions 808 (1992) and 827 (1992) with regard to former
Yugoslavia, and 955 (1994) with regard to Rwanda. See also the Milutinovic case before
the Yugoslav War Crimes Tribunal, IT-99-37-PT, 6 May 2003.
'j4

TH E UNI TED NATIONS

1131

international boundary.240Iraq was called upon to accept the destruction or removal of all chemical and biological weapons and all ballistic
missiles with a range greater than 150 kilometres. A special commission
was provided for to ensure that this happened.241Iraq was to agree unconditionally not to acquire or develop nuclear weapons. The Security
Council resolution reaffirmed that Iraq was liable under internationallaw for any direct loss, damage, including environmental damage and thedepletion of natural resources, or injury to foreign governments, nationals
and corporations, as a result of Iraq's unlawful invasion and occupation of
Kuwait. In a further interesting but controversial provision, the resolution'decides that all Iraqi statements made since 2 August 1990, repudiating
its foreign debt, are null and void, and demands that Iraq scrupulously
adhere to all of its obligations concerning servicing and repayment of its
foreign debt'.
The scope and extent of this binding resolution amounts to a considerable development of the Security Council's efforts to resolve disputes. The
demands that Iraq give up certain types ofweapons and the requirementthat repudiation of foreign debt is invalidated would appear to mark a
new departure for the Council. In this category would also fall the guarantee given to the inviolability of an international border which is still thesubject of dispute between the two parties concerned. In addition to theprovisions noted above, the Council established a fund to pay compensation for claims242and created a UN Compensation C o m m i ~ s i o n . ~ ~ "Sanctions continued after the ceasefire as the Security Council determined that Iraq had failed to comply fully with resolution 687 (1991).
Concern centred upon the failure to destroy weapons of mass destruction. In particular, paragraph 8 of this binding resolution244required
Iraq to 'unconditionally accept the destruction, removal, or rendering
See further above, p. 1113.
See also Security Council resolutions 707 (1991) and 715 (1991) requiring the SecretaryGeneral to report to the Council every six months on the implementation of the Special
Commission's plan for ongoing monitoring and verification of Iraq's compliance with its
responsibilities in this area. See also the Reports of the Special Commission, e.g. S123165;
S123268; S124108 and Corr.1; S124984; S125977; Sl26910; Sl19941750; S1199411138;
S1199411422 and Sl199411422lAdd.l. Security Council resolution 1051 (1996) approved
proposals for an exportlimport monitoring mechanism based upon a joint unit constituted by the Special Commission and the Director General of the International Atomic
Energy Agency.
242 See paragraph 18 of resolution 687 (1991).
24' Ibid., paragraph 16 and see Security Council resolution 692 (1991). See further above,
chapter 18, p. 947.
244 Also specifically accepted by Iraq: see S122456, 6 April 1991.
'40

1132

I N T E R N A T I O N A L LAW

harmless, under international supervision, of (a) all chemical and biological weapons and all stocks of agents and all related subsystems andcomponents and all research, development, support and manufacturing
facilities; (b) all ballistic missiles with a range greater than 150 kilometres
and related major parts, and repair and production facilities'. Iraq was
also required to place all of its nuclear-weapon-usable materials underthe exclusive control of the International Atomic Energy Agency (IAEA)
and unconditionally agree not to acquire or develop nuclear weapons or
nuclear-weapon-usable materials.245The United Nations Special Commission (UNSCOM) was created to implement the non-nuclear provisions of the resolution and to assist the IAEA in the nuclear areas.
Iraq ceased its partial co-operation with UNSCOM in October 1998.
The Security Council adopted resolution 1205 (1998) condemning this as
a 'flagrant violation' of resolution 687 (1991). The UNSCOM inspectors
were withdrawn in December 1998 and the conclusion of its final report
was that Iraq had not provided it with the necessary declarations and notifications as required under Security Council resolution.246In resolution
1284 (1999), noting that Iraq hadnot fully carried out Council resolutions
so that sanctions could not be lifted, the Security Council established the
UN Monitoring, Verification and Inspection Commission (UNMOVIC)
to replace U N S C O M . ~In~resolution~
1441 (2002), adopted unanimously,
the Security Council pointed to Iraq's failures to comply with resolution
687 (1991) and decided that Iraq remained in 'material breach' of its
obligations under Council resolutions.
The sanctions regime that continued in force was mitigated by the
adoption of the 'oil-for-food' programme instituted under resolution 986(1995) and administered by the U N . ~ ~was
" ~ further modified in resolutions 1284 (1999) and 1409 ( 2 0 0 2 ) . *The~ ~ issue generally of the efficacy
of sanctions remains open, but the economic damage that sanctions canParagraph 12.
See Sl199911037. See also Sl1999194 detailing the problems faced by UNSCOM and Iraq's
partial destruction of proscribed weapons coupled with 'a practice of concealment ofproscribed items, including weapons, and a cover up of its activities in contravention ofCouncil resolutions: ihid., para. 5.
See e.g. C. de ronge Oudraat, 'UNSCOM: Between Iraq and a Hard Place: 13 ErIL, 2002,
p. 139.
*" See Sl19961356 and, most recently, S1200211239. Note that Security Council resolution
1472 (2003), adopted eight days after the military operation against Iraq began, provided for the temporary extension of the oil-for-food arrangements under the changed
conditions.
'4"eefurther below, p. 1137.
245

'46

'"

THE UNITED NATIONS

1133

do to the general population of a state, particularly where the government concerned does not operate in good faith, may be immense, andthis has opened a debate as to whether sanctions may be better focusedand targeted or made 'smarter'.250
Measures involving the use of force Where the Council feels that themeasures short of armed force as prescribed under article 41 have been or
would be inadequate, it may take 'such action by air, sea or land forces as
may be necessary to maintain or restore international peace and security'.
Article 42 also provides that such action may extend to demonstrations,blockades and other armed operations by members of the United Nations.
In order to be able to function effectively in this sphere, article 43 provides
for member states to conclude agreements with the Security Council tomake available armed forces, assistance and facilities, while article 45
provides that member states should hold immediately available national
air-force contingents for combined international enforcement action inaccordance with article 43 agreements. In this manner it was intended tocreate a United Nations corps to act as the arm of the Council to suppress
threats to, or breaches of, the peace or acts of aggression.
Article 47 provides for the creation of a Military Staffs Committee,
composed of the Chiefs of Staff of the five permanent members or theirrepresentatives, to advise and assist the Security Council on militaryrequirements and to be responsible for the strategic direction of any
armed force placed at the disposal of the Security Council. Indeed, article 46 provides that plans for the application of armed force 'shall bemade by the Security Council with the assistance of the Military Staffs
Committee'. However, during the Kuwait crisis of 1990-1, the Military
Staffs Committee played an important co-ordinating role, while under
Security Council resolution 665 (1990) it was given a more general coordination function.
Because of great power disputes and other factors, none of the projectedagreements has been signed and article 43 remains ineffective. This has
weakened article 42 to the extent that the envisaged procedure for its

250 See e.g. UKMIL, 70 BYIL, 1999, p. 549. Resolution 1483, adopted on 22 May 2003, sup-ported the formation of an "interim administration" for Iraq, following the occupationof that state by the UK and the USA, by the people of Iraq with the help of "the Authority"(the UK and USA). The Authority was called upon to promote the welfare of the Iraqi
people in terms of effective administration and security. A UN Special Representative wasauthorised and all economic sanctions lifted (apart from arms).

1134

I N T E R N A T I O N A L LAW

implementation has had to be abandoned. This has meant that the UN
through a process of interpretation by subsequent conduct has been able
to reconfigure the collective security regime.
The first example of enforcement action in practice was the United Nations' reaction to the North Korean invasion of the South in 1950,~"andthis only occurred because of a fortuitous combination of circumstances.
In June 1950 North Korean forces crossed the 28th Parallel dividing North
from South Korea and thus precipitated armed conflict. ~lmost-immediately the Security Council debated the issue and, after declaring that abreach ofthe peace had taken place, called upon member states to assist theUnited Nations in achieving a North Korean withdrawal. Two days later,
another resolution was adopted which recommended that United Nations
members should furnish all necessary assistance to the South Koreanauthorities, while the third in the trio of Security Council resolutions on
this issue authorised the United States to designate the commander ofthe unified forces established for the purpose of aiding the South Koreansand permitted the use of the United Nations flag by such forces.252
The only reason that these resolutions were in fact passed by the Council
was the absence of the USSR in protest at the seating of the Nationalist~ ~ ' prevented the exercise of the veto by the Soviet
Chinese d e l e g a t i ~ n . This
Union and permitted the creation of an authoritative United Nations
umbrella for the US-commanded forces combating the North Koreanarmies. The USSR returned to the Council at the start of August 1950
and effectively blocked further action by the Council on this issue, butthey could not reverse what had been achieved, despite claims that theresolutions were not constitutionally valid in view of the Soviet
However, although termed United Nations forces, the contingents fromthe sixteen states which sent troops were under effective United States
control, pursuant to a series of agreements concluded by that country witheach of the contributing states, and were not in any real sense directedby the United Nations other than operating under a general Security
Council authorisation. This improvised operation clearly revealed the
deficiencies in the United Nations system of maintaining the peace since"' See e.g. Y. Dinstein, War, Aggression and Self-Defence, 3rd edn, Cambridge, 2001, p. 257;
C. Gray, hlterrlational Law and the Use of Force, Oxford, 2000, chapter 6, and Franck,
Fairness, p. 223.
'j2 Security Council resolutions 82 (1950), 83 (1950) and 84 (1950).
*"7 - See e.g. L. Sohn, Cases on United Nations Law, 2nd edn, Brooklyn, 1967, pp. 479 ff.
-'4
Ibid., pp. 481 ff. See also ibid., pp. 509 ff. with regard to the situation following the Chinese
involvement ill the conflict.

THE UNITED NATIONS

1135

the Charter collective security system as originally envisaged could notoperate, but it also demonstrated that the system could be reinterpreted
so as to f ~ n c t i o n . ~ "The second example occurred following the invasion of Kuwait by Iraq
on 2 August 1990.~"Resolution 660 (1990), adopted unanimously thesame day by the Security Council, condemned the invasion and called for
an immediate and unconditional withdrawal. Resolution 662 (1990) declared that the purported Iraqi annexation of Kuwait had no legal validity
and was null and void. States and international organisations were called
upon to refrain from any action or dealing that might be interpreted as
an indirect recognition of the annexation. The Council, specifically acting under Chapter VII of the UN Charter, demanded in resolution 664(1990) that Iraq permit the immediate departure of the nationals of third
countries25' and in resolution 667 (1990) condemned Iraqi aggressive
acts against diplomatic premises and personnel in Kuwait, including theabduction of foreign nationals present in those premises, and demanded
the protection of diplomatic premises and personnel.258Eventually, theSecurity Council, feeling that the response of Iraq to all the foregoing resolutions andmeasures adopted hadbeen unsatisfactory, adopted resolution
678 (1990) on 29 November 1990. This allowed Iraq a further period ofgrace within which to comply with earlier resolutions and withdraw from
Kuwait. This 'final opportunity' was to end on 15 January 1991. After
this date, member states co-operating with the Government of Kuwait
were authorised to use all necessary means to uphold and implement
Security Council resolution 660 (1990) and to restore international peaceand security in the area. All states were requested to provide appropriate
support for the actions undertaken in pursuance of this resolution. The
armed action commenced on 16 January 1991 by a coalition of states259"' Franck has written, referring to the 'adaptive capacity' of the UN, that the 'gradualemancipation of article 42 as a free-standing authority for deploying collective force,ad hoc, had prevented the collapse of the Charter system in the absence of the standby
militia envisioned by article 43: Recourse, p. 23.
256 See Lauterpacht et al., Ktl~vaitCrisis: Basic Doctlmenrs. See also 0 . Schachter, 'United
Nations Law in the Gulf Conflict', 85 AJIL, 1991, p. 452.
257 See also Security Council resolution 674 (1990).
See generally Keesing's Record o f World Events, pp. 37631 ff. and pp. 37694 ff (1990).
259 The following states supplied armed forces andlor warships or aircraft for the enforcement of the UN resolutions: USA, UK, France, Egypt, Syria, Saudi Arabia, Morocco,
the Netherlands, Australia, Italy, Spain, Argentina, Belgium, Canada, Pakistan, Norway,
Denmark, USSR, Bangladesh, Senegal, Niger, Czechoslovakia and the Gulf Co-operation
Council (Kuwait, Qatar, Bahrain, Oman and the United Arab Emirates): see Sunday Times'War ill the Gulf' Briefing, 27 ranuary 1991, p. 9.

1136

I N T E R N A T I O N A L LAW

under the leadership of the United States can thus be seen as a legitimate
use of force authorised by the UN Security Council under its enforcement
powers elaborated in Chapter VII of the UN Charter and binding upon
all member states of the UN by virtue of article 25. This is to be seen in thecontext of the purposes laid down by the Council in binding resolutions,that is the immediate and unconditional withdrawal of Iraq from Kuwait
and the restoration of international peace and security in the area, andwithin the framework of the exercise of enforcement action in the lightof the absence of article 43 arrangements.
However, the question has arisen whether the process of reinterpreting
the Charter by subsequent conduct has moved beyond the authorisationby the Council to member states to take action in the absence of specifically designated UN forces operating under the aegis of the Military Staffs
Committee. In particular, is it possible to argue that in certain situations
such authorisation may be implied rather than expressly granted? Following the Gulf War, revolts against the central government in Iraq led
to widespread repression by Iraqi forces against the Shias in the south
and the Kurds in the north of the country. Security Council resolution
688 (1991))which was not adopted under Chapter VII and did not authorise the use of force, condemned such repression 'the consequencesof which threaten international peace and security' and insisted that Iraq
allow immediate access by international humanitarian organisations tothose in need in the country. In the light of the repression, the US, UK
and France sent troops into northern Iraq to create a safe haven for humanitarian operations. They were speedily withdrawn and replaced bya small number of UN Guards operating with the consent of ~ r aIn ~ . ~addition, the Western states declared a 'no-fly' zone over southern Iraq
in August 1992, having established one over northern Iraq in April 1991.
The justification of these zones was argued to be that of supporting resolution 688.2" Further, it was maintained that the right of self-defence'" See e.g. Tl%ite, Keepiizg the Peace, p. 192 and F. L. Kirgis, Ir~ternationalOrpnisatioizs intheir Legal Settii~g,2nd edn, St Paul, 1993, pp. 854 ff.
261 See e.g. the statement of the Minister of State at the Foreign Office on 27 January 1993,

UKMIL, 64 BYIL, 1993, p. 739, and see also ihid., at p. 728 and UKMIL, 65 BYIL, 1994,
p. 683. See also the statement of President Bush of the US cited in Kirgis, Ivlternatiorzal
Organisations, p. 856. Note that on 3 September 1996, in response to the entry of Iraqi
troops and tanks into the northern 'no-fly' Kurdish zone in order to aid one of theKurdish groups against another, US aircraft launched a series of air strikes against Iraq
and extended the southern 'no-fly' zone from the 32nd to the 33rd parallel. 111 so doing
the US government cited Security Council resolution 688 (1991): see The Economist,
7 September 1996, pp. 55-6. See also Gray, 'Unity to Polarisation: p. 9.

THE UNITED NATIONS

1137

existed with regard to flights over the zones, thus permitting proportionate responses to Iraqi a~tions.~~"ether resolution 688 can indeed be sointerpreted is unclear. What is clear is that such actions were not explicitly mandated by the UN. It is also to be noted that the UK in particular
has also founded such actions upon the need to prevent a humanitariancrisis as supported by resolution 688. In March 2001, for example, it wasnoted that the no-fly zones were established 'in support of resolution 688'
and 'are justified under international law in response to a situation of
overwhelming humanitarian necessity'.263
More dramatically, the use of force based impliedly on Security Council
resolutions occurred in March 2003, when the UK and the US commenced
military action against ~ r a qThe
. ~legal~ ~ basis for this action was deemed
to rest upon the 'combined effect ofresolutions 678,687 and 1441:~~'
Resolution 1441 ( 2 0 0 2 ) ~inter~ ~ alia recognised that Iraq's non-compliancewith Council resolutions and proliferation of weapons of mass destruction posed a threat to international peace and security and recalled that
resolution 678 authorised member states to use all necessary means to
restore international peace and security. Citing Chapter VII, the resolution decided that Iraq was and remained in material breach of resolutions
including 687, decided to afford that state a 'final opportunity to comply
with its disarmament obligations under relevant resolutions of the Council' and established an enhanced inspection regime. The Council called
for declarations from Iraq detailing all aspects of its programmes withregard to weapons of mass destruction and ballistic missiles, noting that"' UKMIL, 64 BYIL, 1993,pp. 728 and 740 with regard to Western air raids against Iraqi
targets on 13 Tanuary 1993.See also UKMIL, 69 BYIL, 1998,p, 592 and UKMIL, 70 BYIL,
1999,pp. 565,568and 590.
See UKMIL, 72 BYIL, 2001,p. 694.See also a b o ~ echapter,
20,p. 1046.
Note that in December 1998,UK and US airplanes attacked targets in Iraq in responseto the withdrawal by that state of co-operation with UN weapons inspectors and based
this action on resolutions 1154 (1998) and 1205 (1998) adopted under Chapter VII.
The resolutions did not authorise force, but the former noted that any violation by
Iraq of its obligations to accord 'immediate, unconditional and unrestricted access' to
UNSCOM and the IAEA would have 'severest consequences' and the latter declared that
Iraq's decision to end co-operation with UNSCOM was 'a flagrant violation' of resolution
687(1991): see UKMIL, 69 BYIL, 1998, pp. 589 ff., and Gray, 'Unity to Polarisation',pp. 11 ff.
265 See the Attorney General, Hansard, House of Lords, vol. 646,Written Answer, 17 March
2003.This UK position was referred to without demur by the US Secretary of State,
Briefing, 17 March, 2003:see http://www.state.govisecretary/rm/2003/1877l.htm. See
also the letters dated 21 March 2003 sent to the President of the Security Council fromthe Permanent Representatives of the UK, US and Australia, S120031350-2.
266 See, as to resolutions 678(1990) and 687 (1991),above, pp. 1135 and 1130.

'"

'"

1138

I N T E R N A T I O N A L LAW

false statements or omissions would constitute a further material breach.
It decided that Iraq was to provide UNMOVIC and the IAEA with immediate, unimpeded, unconditional and unrestricted access to all relevantsites, records and officials. The Council decided to convene further to 'consider the situation and the need for full compliance with all of the relevantCouncil resolutions in order to secure international peace and security'
and recalled in that context that 'the Council has repeatedly warned Iraq
that it will face serious consequences as a result of its continued violationsof its obligations'. This resolution was adopted unanimously.
Subsequent events, however, revealed Iraqi deficiencies in complying
with the r e s ~ l u t i o n . ~The
~ ' Security Council was divided on the need fora follow-up resolution to 1441 in order for force to be used and a draft
resolution drawn up by the UK, US and Spain was withdrawn on 17 Marchonce it became clear that one or more permanent members would exercise
a veto.268On 20 March the military operations commenced. The Security
Council can authorise member states to resort to force in order to maintaininternational peace and security, as in the Kuwait conflict of 1990-1, andthe Council did affirm that Iraq's failure to comply with its obligations inresolution 687 to divest itself ofweapons ofmass destruction constituted athreat to international peace and security. Resolution 1441 was intended asa final opportunity and it was provided that serious consequences would
ensue upon Iraq's failure to comply. However, whether this amounts toa justification in international law for the UK and the US to use force inthe face of the opposition of other Security Council members remains
c~ntroversial.~~~The use of force in non-enforcement situations
In some recent peacekeeping situations, missions established without reference to Chapter VII of the Charter have later been expanded with mandates wholly or partly referring specifically to Chapter VII and in somecases this has led to the application of force by the UN. The results arevariable. In both Bosnia and Somalia the temptation to resort to more
267 See e.g. UNMOVIC Report of28 February 2003, S120031232, pp. 3,12-13 andUNhIOVIC

Working Document on Unresolved Disarmament Issues: Iraq's Proscribed Weapons
Programme ('Cluster Document'), 6 March 2003.
26S See US Secretary of State, Briefing, 17 March 2003, http://www.state.govisecretary/
rm/2003/18771 .htm.
'6'
See e.g. the diverse views expressed in the Guardian of 17 and 18 March 2003. See also D.
Sarooshi, The United Nations and the Development of Collective Security, Oxford, 1999,
chapter 4 and pp. 174 ff. with regard to delegation of Chapter LrII powers to member
states and the limitations thereupon.

THE UNITED NATIONS

1139

robust tactics (often for the best of humanitarian reasons) involving theuse of force, but without adequate political or military resources or support, led to severe difficulties.
Former Yugoslavia The outbreak of hostilities in Yugoslavia led the Security Council in resolution 713 (1991), adopted on 25 September 1991,
to impose an arms embargo on that country. As the situation deteriorated,the decision was taken to establish a peacekeeping force (the UN Protection Force or UNPROFOR) in order to ensure the demilitarisation ofthreeprotected areas in Croatia (inhabited by Serbs).270This resolution did notrefer to Chapter VII and did specifically note the request of the Government of Yugoslavia for a peacekeeping ~ p e r a t i o n . ~The" full deploymentof the force was authorised by resolution 749 (1992).During the following
months the mandate of UNPROFOR was gradually extended. By resolution 762 (1992), for example, it was authorised to monitor the situationin areas of Croatia under Yugoslav army
while by resolution
779 (1992) UNPROFOR assumed responsibility for monitoring the demilitarisation of the Prevlaka peninsula near ~ u b r o v n i kAt. ~the~ ~sametime, the situation in Bosnia and Herzegovina deteriorated. Both Croatia
and the Federal Republic of Yugoslavia (Serbia and Montenegro) were
' ~ sanccriticised for their actions in Bosnia in resolution 757 ( 1 9 9 2 ) ~ andtions were imposed upon the latter. In resolution 758 (1992), the Council
approved an enlargement of UNPROFOR's mandate and strength andauthorised the deployment of military observers and related personnel
and equipment to Sarajevo, the capital of ~ o s n i a . ~ "In a further measure responding to the dire situation, the Security Council, acting under Chapter VII, adopted resolution 770 (1992)
calling on all states to 'take nationally or through regional agencies or
Security Council resolution 743 (1992). See also the Report of the Secretary-General,
S123592 and Security Council resolutions 721 (1991) and 724 (1991).
'7' The resolution, however, did mention article 25.
See also Security Council resolution 769 (1992).
273 Note also Security Council resolution 802 (1993) criticising Croatia for its attacks withinor adjacent to the UN protected areas and upon UNPROFOR personnel.
274 The Security Council in this resolution was explicitly acting under Chapter VII. See also
resolution 752 (1992) also criticising outside interference in Bosnia, which did not refer
to Chapter VII.
27' Additional elements were deployed to ensure the security of the airport by resolution 76 1
(1992).Note that neither ofthese resolutions referred to ChapterL711.See also Sl19941300,
with regard to UNPROFOR's mandate relating to Sarajevo airport. The airlift of h~uinanitarian supplies into this airport was the longest lasting such airlift in history and wellover 150,000 tons were delivered: see Sll9951444, para. 23.
'70

"'

1140

I N T E R N A T I O N A L LAW

arrangements all measures necessary' to facilitate, in co-ordination with
the UN, the delivery of humanitarian assistance to and within Bosnia. The
phrase 'all necessary measures', it will be recalled, permits in UN terminology the resort to force.276The mandate of UNPROFOR was augmented
by resolution 776 (1992) to incorporate support for the humanitarian relief activities of the UN High Commissioner for Refugees (UNHCR) and,in particular, to provide protection where requested. It was noted in the
Secretary-General's Report, approved by this resolution, that the normal
peacekeeping rules of engagement would be followed, so that force could
be used in self-defence, particularly where attempts were made to preventthe carrying out of the mandate.277However, resolution 776 (1992) madeno mention of either Chapter VII or 'all necessary measures',
A further stage in the evolution of UNPROFOR's role occurred withthe adoption of the 'no-fly' ban imposed on military flights over Bosnia
by Security Council resolution 781 (1992). UNPROFOR was given thetask of monitoring compliance with this ban.278The ban 011 air activity
was expanded in resolution 816 (1993) to cover flights by all fixed-wing
and rotary-wing aircraft. The resolution also authorised member states
to take 'under the authority of the Security Council and subject to close
co-ordination with the Secretary-General and UNPROFOR, all necessary
measures' to ensure compliance with it. Both of these resolutions wereadopted under Chapter VII. At the request of the Secretary-General, theno-fly zone was enforced by aircraft from N A T O . ~A~'dual~ key' system
was put into operation under which decisions on targeting and execution
in the use of NATO airpower were to be taken jointly by UN and NATOcommanders and the principle of proportionality of response to violations
was affirmed.280
In order to protect certain Bosnian Moslem areas under siege from
Bosnian Serb forces, the Security Council established a number of 'safe
areas'.281Although Chapter VII was referred to in these resolutions, it
was cited only in the context of resolution 815 (1993), which dealt with
2'6

'"
*"

"'
*"

The Secretary-General was, however, careful to state that this resolution created no
additional mandate for UNPROFOR: see S119951444, para. 25.
See S124540. Note that a number of resolutions extended the application of Chapter VII
to UNPROFOR's freedom of movement, e.g. resolutions 807 (1993) and 847 (1993), andforce was used on a number of occasions in self-defence: see e.g. S119951444, para. 55.
See also Security Council resolution 786 (1992).
See e.g. the Report of the Secretary-General, S119951444, para. 30.
See e.g. Joint Press Statement of 29 October 1994, PK0132.
See resolutions 819 (1993) and 824 (1993). These were Srebrenica, Sarajevo, Tuzla, Zepa,
Gorazde and Bihac.

THE UNITED NATIONS

1141

the security of UNPROFOR personnel. The enforcement of the 'safe areas' was therefore to be attained by UNPROFOR personnel authorised touse force only to protect themselves.282Although the Secretary-Generalstated that approximately 34,000 extra troops would be necessary, only
an additional 7,000 were a ~ t h o r i s e d . ~At' ~the request of the SecretaryGeneral, NATO established a 3-kilometre 'total exclusion zone' and a 20kilometre 'military exclusion zone' around Gorazde and a 20-kilometre'heavy weapons exclusion zone' around Sarajevo. These zones were to be
enforced by air strikes if necessary, although no Security Council resolutions referred to such zones or created any special regime with regard
to them.'8%elelations between UNPROFOR and the Bosnian Serbs led toa series of incidents in the spring of 1995. The latter breached the Sarajevo no-heavy-weapons arrangement. This precipitated NATO airstrikes
which provoked the taking hostage of several hundred UNPROFOR soldiers. The 'safe area' of Srebrenica was then captured by Bosnian Serb
forces in July 1995, involving major human rights abuses against the population. After incidents involving other 'safe areas' and Sarajevo, NATOwith UN approval launched a series of airs trike^.^^' At the same time,
Bosnian and Croat forces captured areas held by the Bosnian Serbs. A
ceasefire agreement came into force on 12 October 1 9 9 5 . ~ ' ~UN peacekeeping missions in former Yugoslavia were reorganised in
March 1995, following the capture by Croatian forces of three of the four
protected areas inhabited by Serbs in Croatia. The UN missions therefore~ ' UN Confidence Restoration
comprised UNPROFOR in ~ o s n i a , ~theOperation in Croatia (uNCRO)~" and the UN Preventive Deployment
Force (UNPREDEP) in the former Yugoslav Republic of ~ a c e d o n i a . ~ ' ~"'See also Security Council resolution 836 (1993).
la' Secmity Council resolution 844 (1993). See also S125939. Note that the Secretary-Generalcalled for the demilitarisation of the 'safe areas', S1199411389. At the request of the Secretary, UNPROFOR was also given the task of monitoring the ceasefire agreement between
the Bosnian and Croatian armies, see Security Council resolution 908 (1994), and given
additional responsibilities with regard to Sarajevo, see Security Council resolution 900
284(1994).
Sl19951444, paras. 48-9.

285 See also Security Council resolution 998 (1995) regarding the proposal to establish a rapid

reaction force.
See S119951987.
"'See also Security Council resolution 1026 (1995).
288 See also Security Council resolutions 990 (1995) and 994 (1995).
28"ecurity Council resolutions 981 (1995), 982 (1995) and 983 (1995). The Security Council
had authorised deployment of a preventive force in Macedonia in resolution 795 (1992).
See also S124923, annex.

1142

I N T E R N A T I O N A L LAW

As a consequence of the Dayton peace agreement initialled in November 1995, UNPROFOR was replaced by a multinational implementation) ~ ~ ' primarily of troops from NATO countries. In
force ( 1 ~ 0 ~composed
addition, it was proposed to set up a UN International Police Task Forceto carry out a variety of police-related training and assistance m i ~ s i o n s . ~ ~ 'The evolution of the UN role in the complex Yugoslav tragedy may
be characterised as a series of impromptu actions taken in response totraumatic events. UNPROFOR was never authorised to use force beyond
that required in self-defence while performing their rapidly expanding
duties. The UN sought to fulfil its fundamental mandated responsibilities
with respect to Sarajevo and the transportation ofhumanitarian aid in cooperation with the warring parties based on the peacekeeping principles
of impartiality and consent. But the situation was far from a normal
peacekeeping situation of separating hostile forces that consent to suchseparation. The use of air power was subsequently authorised both inorder to defend UNPROFOR personnel and to deter attacks upon the'safe areas', which had been proclaimed as such with little in the way of
initial enforcement means. Eventually air strikes by NATO were resorted
to in the face of fears of further Bosnian Serb capture of 'safe areas'.
Whether a peacekeeping mission in the traditional sense can ever reallybe mounted in the conditions then faced in Bosnia must be seriously indoubt, although the humanitarian efforts undertaken were important.
Only a meaningful enforcement mandate could have given the UN achance to put an end to the fighting. But that required a major politicalcommitment and substantial resources. These states are rarely willing toprovide unless their own vital national interests are at stake.
~ o r n a l i a ~The~ ~Somali situation marked a similar effort by the UN
to resolve a humanitarian crisis arising out of civil war conditions andone that saw a peacekeeping mission drifting into an enforcement one.
Following a prolonged period of civil war, the Security Council urged
all parties to agree to a ceasefire and imposed an arms embargo. The
Secretary-General was requested to organise humanitarian a s ~ i s t a n c e . ~ ' ~'" See Security Council resolution 1031 (1995).
291 See e.g. Sl199511031 and Security Council

'92

'"

resolution 1026 (1995). The International
Police Task Force was established under resolution 1035 (1995).
See e.g. Franck, Fairness, pp. 301 ff., and I. Lewis and Mayall, 'Somalia' in The New
Interventionism 1991-1994 (ed. J.Mayall), Cambridge, 1996, p. 94. See also J. M. Sorel,'La Somalie et les Nations Unies: AFDI, 1992, p. 61.
Security Council resolution 733 (1992). See also S123829, 1992.

r.

THE UNITED NATIONS

1143

A UN technical mission was then established to look at mechanisms toprovide such aid and to examine peacekeeping option~.~~"heUN Operation in Somalia (UNOSOM) was set up shortly thereafter,295but thismodest operation (of fifty ceasefire observers and a security force) was
deemed insufficient to ensure the delivery of humanitarian assistance,
and the deployment of additional UN security units in order to protect
the distribution centres and humanitarian convoys was a ~ t h o r i s e d . ~ ~ ~However, the situation continued to deteriorate and few humanitarian
supplies arrived where needed due to constant attacks."' Accordingly,
after the Secretary-General had concluded that Chapter VII action was
required,298the Security Council determined that the 'magnitude of thehuman tragedy caused by the conflict in Somalia, further exacerbatedby the obstacles being created to the distribution of humanitarian assistance, constitutes a threat to international peace and security'. The use of'all necessary means to establish as soon as possible a secure environment
for humanitarian relief operations' was authorised and the Unified Task
Force was created (uNITAF)."~ This comprised troops from over twenty
states, including some 30,000 from the US.^''This operation was expanded the following spring and UNOSOM I1
was established with an enlarged mandate with enforcement powers under Chapter V I I . ~ ' UNOSOM~
I1 was given the humanitarian mandateof UNITAF, together with 'responsibility for the consolidation, expansion and maintenance of a secure environment throughout Somalia' andthe provision of security to assist the repatriation of refugees and the assisted resettlement of displaced persons. The force was also to complete
the disarmament of factions, enforce the Addis Ababa agreement of January 1 9 9 3 ~ 'and~ help rebuild the country. The authorisation to take allnecessary measures was reiterated in resolution 837 (1993), following an
attack upon UNOSOM I1 forces. This authorisation was stated to include
taking action against those responsible for the attacks and to establish the"4

Security Council resolution 746 (1992).

295 Security Council resolution 751 (1992). This was not originally a Chapter \'I1

operation.

'" Security Council resolution 775 (1992). See also S1244480, 1992. Under resolution 767(1992) Somalia was divided into four operational zones for the delivery of food aid andceasefire purposes.
297 See Sl24859, 1992.
298 S124868, 1992.
2yy Security Council resolution 794 (1992).
300 The operation was termed 'Operation Restore Hope' and it arrived in Somalia in December 1992: see Sl24976, 1992 and Si25168, 1993.
301 Security Council resolution 814 (1993). See also S125354, 1993.
See S125168, annex 111.

'"

1144

I N T E R N A T I O N A L LAW

effective authority of UNOSOM I1 throughout the country. A seriesof military incidents then took place involving UN forces.303Security
Council resolution 897 (1994), while condemning continued violence inthe country especially against UN personnel, authorised a reduction in
UNOSOM 11's force levels to 22,000."' And in resolution 954 (1994),theCouncil decided to terminate the mission at the end of March 1995 andauthorised UNOSOM I1 to take actions necessary to protect the mission
and the withdrawal of personnel and assets and to that end called upon
member states to provide assistance to aid the withdrawal process. The
Secretary-General concluded his report of 14 October 1994 noting that thevacuum of civil authority and of governmental authority severely hampered the work of the UN, while 'the presence of UNOSOM I1 troops has
had limited impact on the peace process and limited impact on security
in the face of continuing interclan fighting and banditry'.305~ w a n d a ~ Following'~
a civil war between government forces and RPF
rebels, the Security Council authorised the deployment of the UN Observer Mission Uganda Rwanda (UNOMUR) on the Ugandan side of theborder.307A peace agreement was signed between the parties at Arusha
and the UN set up the UN Assistance Mission for Rwanda (UNAMIR)
with a mandate to ensure the security of the capital, Kigali, monitor theceasefire agreement and monitor the security situation generally up to theinstallation ofthe new go~ernment.~"
However, the projected transitional
institutions were not set up and the security situation deteriorated. Following the deaths of the Presidents of Rwanda and Burundi in an airplanecrash on 5 April 1994, full-scale civil war erupted which led to massacresof Hutu opposition leaders and genocidal actions against members of theTutsi minority. Faced with this situation, the Security Council rejected
the option of strengthening UNAMIR and empowering it under Chapter
VII in favour of withdrawing most of the mission from the country.309
As the situation continued to deteriorate, the Council imposed an arms
embargo on the country, authorised the increase ofUNAMIR to 5,500 and
See e.g. Sl26022, 1993, and Security Council resolutions 865 (1993), 878 (1993), 885(1993) and 886 (1993).
"O" See also Security Council resolutions 923 (1994) and 946 (1994).
'05 Sl199411166, Part 2, para. 22.
'06 See e.g. Franck, Fairnexs, pp. 300 ff.
307 See Security Council resolution 846 (1993). See also resolutions 812 (1993) and 891(1993). This mission was terminated in resolution 928 (1994).
308 Sec~~rityCouncil resolution 872 (1993). See also resolutions 893 (1994) and 909 (1994).
'O"ecurity
Council resolution 912 (1994).
"O'

THE UNITED NATIONS

1145

its redeployment in Rwanda and expanded its mandate to include the establishment and maintenance of secure humanitarian areas.310However,delays in implementing this led to a proposal from France to establish a
French-commanded force to act under Chapter VII of the Charter andsubject to Security Council authorisation in order to protect displaced
persons and civilians at risk. This was accepted in resolution 929 (1994)
in which the Council, acting under Chapter VII, authorised a two-month
operation (Operation Turquoise) until UNAMIR was up to strength.
Member states were authorised to use all necessary measures to achieve
their humanitarian objectives. The force, therefore acting as the 1990-1
Gulf War Coalition had on the basis of Security Council authorisation
under Chapter VII, established a humanitarian protected zone in southwestern Rwanda. Gradually UNAMIR built up to strength and it began
deploying troops in the protected zone on 10 August 1994, taking over
responsibility from the French-led force shortly thereafter and deploying
in areas throughout the country. UNAMIR's mandate ended on 6 March
1996.~"
Sierra Leone After prolonged fighting, a military junta took power andthe Security Council imposed an oil and arms embargo which was terminated upon the return of the democratically electedThis
was followed by the establishment of the UN Observer Mission in Sierra
Leone with the function of monitoring the disarmament process and restructuring the security forces.313This mandate was increased following
further vi~lence.~l"n October 1998, the Security Council, noting thesigning of the Lomi. Agreement the previous July, set up the UN Missionin Sierra Leone (UNAMSIL) with an initial 6,000 military personnel toreplace the previous mission with an enhanced mandate, including establishing a presence at key locations in the country, monitoring the ceasefire and facilitating humanitarian assistance. Specifically acting under
Chapter VII, paragraph 14 ofresolution 1270 (1999), the Council decided
that 'in the discharge of its mandate UNAMSIL may take the necessary
action to ensure the security and freedom of movement of its personnel
and. . . to afford protection to civilians under imminent threat of physicalviolence'. The force was increased and the mandate revised in resolution
1289 (2000) to include in paragraph 10, specifically citing Chapter VII,
310 Security Council resolution 918 (1994). See also resolutions 925 (1994) and 935 (1994).

"' See Security Council resolution 1029 (1995).
31'"4

See resolutions 1132 (1997) and 1156 (1998).
See resolution 1181 (1998).
See resolutioils 1220 (1999),1231 (1999), 1245 (1999) and 1260 (1999).

1146

I N T E R N A T I O N A L LAW

the provision of security at key locations and at other sites and to assist
the Sierra Leone law enforcement authorities in the discharge of their
responsibilities. UNAMSIL was further authorised to 'take the necessary
action' to fulfil the additional tasks.315
The Democratic Republic of the Congo The Security Council has also
concerned itselfwith the civil war and foreign interventions in the Democratic Republic of the Congo (the former Zaire). Following fighting involving both internal and external forces, the Lusaka Ceasefire Agreement
was signed in July 1999.~' This was welcomed by the Security Council andthe deployment of a small UN military liaison force was authori~ed.~"This force was designated the UN Organisation Mission in the Democratic
Republic of the Congo ( M O N U C ) . ~The' ~ Mission was expanded and extended with a mandate inter alia to include monitoring the ceasefire andto supervise and verify the disengagement arrangement^.^^' paragraph 8of the resolution, specifically citing Chapter VII, states that the Council
has decided that MONUC 'may take the necessary action.. . t o protect
United Nations and co-located JMC [Joint Military Commission] personnel, facilities, installations and equipment, ensure the security andfreedom of movement of its personnel, and protect civilians under imminent threat of physical violence'. During the summer of 2000, fighting
broke out between Ugandan and Rwandan forces in the Congo and the
Security Council in resolution 1304 (2000), acting under Chapter VII,
demanded that Uganda and Rwanda withdraw all their forces from theCongo and that all other foreign military presence and activity, direct
and indirect, be brought to an end. MONUC was asked to monitor the
cessation of hostilities and the disengagement of forces and withdrawal offoreign forces.320This demand was repeated in resolutions 1341 (2001)
and 1355 (2001),again acting under Chapter VII."' Invirtually all oftheseresolutions, the situation was characterised as a 'threat to international
peace and security in the region'.
The mission was further extended and expanded: see e.g. resolutions 1299 (2000), 1346
(2001), 1400 (2002) and 1436 (2002). See also, as to the role of ECOLIAS, below,
p. 1157.
'I6 See Sl19991815. See also resolution 1234 (1999).
'I7 Resolution 1258 (1999).
3 L S Resolution 1279 (1999).
31' Resolution 1291 (2000).
120 M O N U C was further extended 111 resolutions 1316 (2000) and 1332 (2000).
3" See also resolutions 1376 (2001), 1399 (2002), 1417 (2002), 1457 (2003) and 1468 (2003).
"?

THE UNITED NATIONS

1147

The range of UN actions from humanitarian assistance toenforcement - conclusions
The UN has not been able to operate Chapter VII as originally envisaged.
It has, however, been able to develop a variety of mechanisms to fill the
gap left by the non-implementation of article 43. First and foremost, theCouncil may delegate its enforcement powers to member states. This occurred in Korea, the GulfWar and to some extent in R~wanda.However, theevents concerning Iraq have shown uncertainty as to the extent to which,if at all, such authorisation may be implied from resolutions adopted. The
UN has also been able to create peacekeeping forces, whose mandate has
traditionally been to separate hostile forces with their consent, such as in
the Middle East and in Cyprus. The evolution of peacekeeping activities
to include confused civil war situations where fighting has not ended andno lasting ceasefire has been put into operation, although prefigured in
the Congo crisis of the 1960s, has really taken place in the last few years.
It has brought attendant dangers for, as has been seen, the slippage frompeacekeeping to self-defence activities more widely defined and thence tode facto enforcement action is sometimes hard to avoid and complicatedto justify in legal terms. Consent is the basis of traditional peacekeeping
and irrelevant in enforcement activities. In the mandate drift that has been
evident in some situations elements of both consent and imposition havebeen present in a way that has confused the role of the UN. Nevertheless,behind the difficulties of the UN have lain a dearth of both political will
demonstrated by, and material resources provided by, member states forthe completion of complex enforcement actions.
Developments that have been seen in recent years have demonstrated
an acceptance of a far broader conception of what constitutes a threat tointernational peace and security, so that not only external aggression but
certain purely internal convulsions may qualify, thus constraining further
the scope of article 2 ( 7 ) and the exclusive jurisdiction of states. Secondly,
the range of actions taken by the Security Council under Chapter VII
has increased to cover a wide variety of missions and the creation ofinternational criminal tribunals to prosecute alleged war criminals forcrimes occurring within particular states arising out of civil wars. Not
only that, but with regard to Iraq, the Security Council took a range ofbinding measures of unprecedented scope from the guaranteeing of acontested boundary to implementing strict controls on certain kinds ofarmaments and establishing a compensation commission to be funded
by a levy on oil exports.

1148

I N T E R N A T I O N A L LAW

The Security Council, international law and the International
Court of Justice
The issue of the relationship between binding decisions of the Council
and international law generally has arisen with particular force in recent
years in view of the rapidly increased range and nature of activity by the
Security Council. The issue has involved particular consideration of therole of the International ~ o u r t . ~The" Security Council is, of course,
constrained by the provisions of the Charter itself. It must follow theprocedures laid down and act within the confines of its constitutional
authority as detailed particularly in Chapters V to VII. Its compositionand voting procedures are laid down, as are the conditions under which it
may adopt binding enforcement measures. As the International Court hasemphasised, '[tlhe political character of an organ cannot release it fromthe observance of the treaty provisions established by the Charter when
they constitute limitations on its powers or criteria for its judgment'.323
In particular, the Council must under article 24(2) act in accordance with
the Purposes and Principles of the Charter, article l(1) of which declaresthat one of the aims of the organisation is to bring about a resolution
See, for example, G. R. MTatson,'Constitutionalism, Judicial Review, and the MTorldCourt:
34 Harvard Ii~terilationalLaw Journal, 1993, p. 1; Go~rlland-Debbas,'Security Council
Enforcement', p, 55, and Gowlland-Debbas, 'The Relationship between the International
Court of Justice and the Security Council in the Light of the Lockerbie Case', 88 AJIL, 1994,
p. 643; R. St J. Macdonald, 'Changing Relations between the International Court of rusticeand the Security Council of the United Nations', Canadian YIL, 1993, p. 3; R. F. Kennedy,'Libya v. L'nited States: The International Court of Justice and the Power of Judicial
Review', 33 \la. JIL, 1993, p. 899; T. M. Franck, 'The "Powers of Appreciation": Who is
the Ultimate Guardian of UN Legality?',86 AJIL, 1992, p. 519, and Franck, Fairness, pp.
242 ff.; TV. M. Reisman, 'The Constitutional Crisis in the United Nations: 87 AJIL, 1993,
p. 83; E. Mcllrhinney, 'The International Court as Emerging Constitutional Court andthe Co-ordinate UN Institutions (Especially the Security Council): Implications of the
Aerial Incident atlockerbie', Canadian YIL, 1992, p. 261; J. M. Sorel, 'Les Ordonnances dela Cour Internationale de Justice du 14 Avril 1992 dans I'Affaire Relative a des Questions#Interpretation et d'Application de la Convention de Montreal de 1971 Resultant de
1'Incident Aerien de Lockerbie: Revue Gbnerale denroit International Public, 1993, p. 689;
M. N. Shaw, 'The Security Council and the International Court of Justice: Judicial Driftand Judicial Function' in The International Court of Justice (eds. A. S . hluller, D. Raif andJ. M. Tharanszky), The Hague, 1997, 17. 219; J. Alvarez, 'Judging the Security Council',
90 AJIL, 1996, p. 1, and D. Akande, 'The International Court of rustice and the Security
Council: Is There Room for Judicial Control of Decisions of the Political Organs of theUnited Nations?', 46 ICLQ, 1997, p. 309.
323 Conditions ofAdrnission of a State to ~Mernbershipin the United Nations, ICJ Reports, 1948,
p. 64; 15 AD, p. 333. See also rudge Bedjaoui, the Lockerbie case, ICr Reports, 1992, pp. 3,
45; 94 ILR, pp. 478,528.

?''

THE UNITED NATIONS

1149

of international disputes by peaceful means 'and in conformity with theprinciples of justice and international law'.324
The Council has recently not only made determinations as to the existence of a threat to or breach of international peace and security underarticle 39, but also under Chapter VII binding determinations as to thelocation of boundaries, supervision of destruction of weaponry, liability
under international law for loss or damage, methods of compensation,
asserted repudiation of foreign debt,325the establishment of tribunals to
try individual war ~ r i m i n a l s , and~ ' ~ assertions as to the use of force against
those responsible for, and those inciting, attacks against UN personnel,
including their arrest, prosecution and punishment.327In addition, theCouncil has asserted that particular acts were null and void, demanding
non-re~o~nition."~In view of this increased activity and the impact this has upon member states, the issue has arisen as to whether there is a body capable of
ensuring that the Council does act in conformity with the Charter andinternational law. Since the International Court is the 'principal judicialorgan' of the U N , it~ would~ ~ seem to be the natural candidate, and indeed the problem has been posed in two recent cases. In the Genocide(Bosnia and Herzegovina v. Yugoslavia (Serbia and iWontenegro))it was claimed by Bosnia that the Security Council-imposed arms embargo upon the former Yugoslavia had to be construed in a manner that
did not deprive Bosnia of its inherent right of self-defence under article 51of the Charter and under customary international law.331In the Lockerbie case,332Libya claimed that the UK and US were seeking to compel
See Judge J\'eeramantrp's Dissenting Opinion in the Lockerbie case, ICJ Reports, 1992,
p. 65 and that of Judge Bedjaoui, ibid.,p. 46; 94 ILR, pp. 548 and 529. See also Judge
Fitzmaurice in the Namibia case, ICJ Reports, 1971, pp. 17, 294; 49 ILR, pp. 2, 284-5.
j2' See Security Council resolution 687 (1991) with regard to Iraq after the Gulf War.
l 6 Secmity Council resolutions 808 (1993) and 827 (1993) regarding former Yugoslavia andresolution 955 ( 1994) regarding Rwanda. See also the Taditcase decided by the Appeals
Chamber of the International Tribunal on T17arCrimes in Former Yugosla~ria,Case No.
IT-94-1-AR72, pp. 13 ff.; 105 ILR, pp. 419,428 ff.
Security Council resolution 837 (1993) concerning Somalia.
j2' Security Council resolutions 662 (1990) regarding the purported annexation by Iraq of
Kuwait and 541 (1983) terming the purported Turkish Cypriot state 'legally invalid:'29 Article 92 of the Charter.
ICJ Reports, 1992, pp. 3, 6; 95 ILR, pp. 1, 21.
331 See also the second provisional measures order, ICJ Reports, 1993, pp. 325, 327-8; 95
ILR, pp. 43,45-6. The Court confined itself to the Genocide Convention.
33' ICJ Reports, 1992, pp. 3, 14; 94 ILR, pp. 478,497.
jZ4

'"

"'

1150

I N T E R N A T I O N A L LAW

it to surrender alleged bombers contrary to the Montreal Convention,
1971 (which required that a state either prosecute or extradite alleged
offenders) and that the Council's actions in resolutions 731 (1992) andwere~ ~contrary to international law.
748 ( 1 9 % ) ~While the question of the compatibility of Security Council resolutions with international law was not discussed by the Court in the Bosnia
case, the issue assumed central position in the Lockerbie case. The Court
here affirmed that all member states were obliged to accept and carry out
the decisions of the Security Council in accordance with article 25 of theCharter and that prima facie this obligation extended to resolution 748(1992))which imposed sanctions upon Libya for failing to extradite thesuspects. Thus, in accordance with article 103 ofthe Charter, under which
obligations under the Charter prevail over obligations contained in otherinternational agreements, the resolution prevailed over the Montreal Conent ti on.^^^ Judge Shahabuddeen in his Separate Opinion underlined thatthe issue in the case was whether a decision of the Council could override
the legal rights of states and, if so, whether there were any limitations
upon its power to characterise a situation as one justifying the making of
the decision importing such consequence^.^^"The issue was raised in the request for provisional measures phase of
the Congo v. Uganda case. Uganda argued that the request by the Congofor interim measures would 'directly conflict with the Lusaka Agreement, and with the Security Council resolutions - including resolution
1304 . . . calling for implementation ofthe ~ g r e e m e n t ' . ~The' ~ Court notedthat resolution 1304 was adopted under Chapter VII, but concluded after
quoting the text of the resolution that the Security Council had takenno decision which would primu facie preclude the rights claimed by theCongo from being regarded as appropriate for protection by the indication of provisional measures.337
While there is no doubt that under the Charter system the Council's
discretion to determine the existence of threats to or breaches of international peace and security is virtually absolute, limited only by inherent""ailing upon Libya to surrender the suspects and imposing sanctions for failing so to do.
'j4

ICJ Reports, 1992, p. 15; 91 ILR, p. 498.

"6

respect' the binding decisions of the Security Council as part of international law, ICJ
Reports, 1992, p. 26; 94 ILR, p. 509. See Franck, Fairness, p. 243 who emphasised that theverb used, to 'respect', does not mean to 'defer to: Note that Judge Lachs also pointed to
the Court as the 'guardian of legality for the international cominunity as a whole, bothwithin and without the United Nations', ibid.
ICJ Reports, Order of 1 Tuly 2000, para. 30.
""bid., para. 36.

"' ICJ Reports, 1992, p. 32; 94 ILR, p. 515. Tudge Lachs noted that the Court was bound 'toTHE UNITED NATIONS

1151

notions of good faith and non-abuse of rights,338and its discretion to impose measures consequent upon that determination in order to maintainor restore international peace and security is undoubtedly extensive,339
the determination of the legality or illegality of particular situations isessentially the Council's view as to the matching of particular facts withexisting rules of international law. That view, when adopted under Chapter VII, will bind member states, but where it is clearly wrong in law andremains unrectified by the Council subsequently, a challenge to the system is indubitably posed. While the Court can, and has, examined andanalysed UN resolutions in the course of deciding a case or rendering an
Advisory Opinion, for it to assert a right of judicial review in the fullest
sense enabling it to declare invalid a binding Security Council resolution
would equally challenge the system as it operates. Between the striking
down of Chapter VII decisions and the acceptance of resolutions clearly
embodying propositions contrary to international law, an ambiguous andindeterminate area lies.

T h e role of the General ~ s s e r n b340l~
The focus of attention during the 1950s shifted from the Security Council
to the General Assembly as the use of the veto by the permanent members
led to a perception of the reduced effectiveness of the Council. Since it wasnever really envisaged that the General Assembly would play a large part in
the preservation of international peace and security, its powers as definedin the Charter were vague and imprecise. Articles 10 to 14 provide that theAssembly may discuss any question within the scope of the Charter andmay consider the general principles of co-operation in the maintenance ofinternational peace and security. The Assembly may make recommendations with respect to questions relating to international peace to membersof the United Nations or the Security Council or both, provided (except
in the case of general principles of co-operation, including disarmament)
See e.g. Gowlland-Debbas, 'Security Council Enforcement', pp. 93-4. See also the Tadit
case decided by the Appeals Chamber of the International Tribunal on Liar Crimes inFormer Yugoslavia, Case No. IT-94-1-AR72, pp. 13 ff.; 105 ILR, pp. 419,428 ff.
'j9 Note that under article l(1) actions to bring about the adjustment or settlement ofinternational disputes or situations which might lead to a breach of the peace must be inconformity with 'the principles of justice and international law', while there is no suchqualification with regard to effective collective measures to prevent and remove threats
to the peace and the suppression of breaches of the peace or acts of aggression.
'40 See e.g. Simina, Charter, pp. 247 ff., and White, Keeping the Peace, part 11.

1152

I N T E R N A T I O N A L LAW

the Council is not dealing with the particular matter. In addition, any
question respecting international peace and security on which action isnecessary has to be referred to the Security Council.
The Uniting for Peace resolution was adopted by the Assembly in 1950
because it was felt that such provisions had to be reinterpreted more
specifically if the Assembly was to strengthen its role in dealing with international peace in the event of a veto in the Security Council. This
resolution, organised by the Western nations whose influence predominated in the Assembly at that time, was founded on the view that as
the Security Council had the primary responsibility for the maintenanceof peace under article 24, it could therefore be argued that the Assembly possessed a secondary responsibility in such matters, which could be
activated in the event of obstruction in the Security Council.
The resolution341declared that where the Council failed to exercise its
responsibility upon the occurrence of a threat to the peace, breach of thepeace or act of aggression because of the exercise of the veto by any of its
permanent members, the General Assembly was to consider the matter atonce with a view to making appropriate recommendations to members
for collective measures. Such measures could include the use of force
when necessary in the case of a breach of the peace or act of aggression,
and, if not already in session, the Assembly would be able to meet withintwenty-four hours in emergency special session.342
Certain aspects relating to this streamlining of the Assembly's procedures and elucidation of its substantive powers caused problems within ashort time. Article 11 of the Charter emphasises that any question dealing
with international peace and security on which action was necessaryhad tobe referred to the Security Council and this appeared to cast some doubts
upon the validity of the provision in the Uniting for Peace resolution under which the Assembly could call for collective measures involving theuse of force. This point was particularly stressed by the Soviet Union andits allies. It became of vital significance with the creation by the Assemblyin 1956 of the United Nations Emergency Force which was to supervise
the ceasefire in the Middle East, and in 1960 of the United Nations Forcein the Congo by the United Nations Secretary-General.
j41

3"

General Assembly resolution 377(V). See e.g. 1. Andrassy, 'Uniting for Peace', 50 AIIL,
1956, p. 563. See also M. J. Petersen, 'The Uses of the Uniting for Peace Resolution since
1950: 8 International Organisation, 1959, p. 219, and F. Woolsey, 'The Uniting for Peace
Resolution of the United Nations: 45 ATIL, 1951, p. 129.
The General Assembly under article 20 of the UN Charter meets only in regular annual
sessioils and ill such special sessioils as occasioil may require.

THE UNITED NATIONS

1153

The constitutionality of such forces was questioned by a number ofstates, who refused to pay their share of the expenses incurred, and thematter was referred to the International Court. In the Certain Expenses
case,343the Court took the term 'action'344to refer to 'enforcement action',thus permitting action which did not amount to enforcement action to
be called for by the General Assembly and the Secretary-General."' This
opinion, although leading to some interpretive problems, did permit thecreation of United Nations peacekeeping forces in situations where because of superpower rivalry it was not possible for the Security Council toreach a decision, provided such forces were not concerned with enforcement action. The adoption of this kind of action remains firmly within
the prerogative of the Security Council.
In practice the hopes raised by the adoption of the Uniting for Peace
resolution have not really been fulfilled. The procedure prescribed within
the resolution has been used, for example, with regard to the Suez and
Hungarian crises of 1956, the Lebanese and Jordanian troubles of 1958, theCongo upheavals of 1960, the Middle East in 1967, the conflict leading to
the creation of Bangladesh in 1971, Afghanistan in 1980, Namibia in 1981
and the Palestine question in 1980 and 1982. But it cannot be said that
the Uniting for Peace system has in effect exercised any great influence
regarding the maintenance of international peace and security. It has
provided a method whereby disputes may be aired before the Assemblyin a way that might not have otherwise been possible, but as a reserve
mechanism for the preservation or restoration of international peace, it
has not proved very successful. It arose as a result of the use of the vetoin the Security Council in the context of superpower rivalry, but the
expansion in the membership of the Assembly and the consequent shift
in the balance of power against the West affected the use of the system.
Indeed, with the ending of the Cold War, the Security Council was able
to function in a way impossible before, and the range of actions andinitiatives undertaken by it has been on the whole remarkable. This has
had the effect of further side-lining the General Assembly. Whether the'43

ICJ Reports, 1962,p. 151; 34 ILR, p. 281.

'" Article 11(2) ofthe Charter provides that the General Assembly may discuss any questions
relating to the maintenance of international peace and security, but any such question'on which action is necessary' must be referred to the Security Council.
345 Accordingly, the UN Emergency Force in the Middle East established in 1956 was notcontrary to article 1l(2) since it had not been intended to take enforcement action, ICT
Reports, 1962, pp. 151, 165, 171-2. This precipitated a crisis over the arrears of the states
refusing to pay their contributions.

1154

I N T E R N A T I O N A L LAW

effective functioning of the Council will survive the consequences of the
Iraq crisis of 2002-3 remains to be seen.

The UN and regional arrangements and agencies 346
Chapter VIII of the UN Charter concerns regional arrangements. Article
52 provides that nothing contained in the Charter precludes the existence of regional arrangements or agencies for dealing with such mattersrelating to international peace and security as are appropriate for such arrangements or agencies, providing that these are consistent with the Purposes and Principles of the UN it~elf."~
Article 53 notes that the Security
Council where appropriate shall utilise such arrangements or agencies for
enforcement action under its authority. Without the authorisation of the
Security Council, regional enforcement action is not p~ssible.~"Article54 provides that the Security Council is to be kept fully informed at all
times of activities undertaken or in contemplation by regional organisations. The definition of 'regional arrangements or agencies' is left open,
so that a useful measure of flexibility is provided, enabling the term tocover a wide range of regional organisations going beyond those strictly
established for defence co-operation.
Several issues arise. First, there is the issue ofwhen regional action may
be deemed to be appropriate, and here recent events have demonstrated
a broader measure of flexibility akin to the widening definition of what
constitutes a threat to international peace and security. Secondly, thereis the extent to which regional action is consistent with UN purposes
and principles, and here the provisions of article 103, assigning priority
to Charter obligations over obligations contained in other international
agreements, should be noted. Thirdly, there is the question as to whether
a broad or a narrow definition of enforcement action is to be accepted.'49
Fourthly, the important issue is raised as to whether prior approval by
the Security Council is required in order for a regional organisation to
engage in an activity consistent with Chapter VIII. Practice here recently
See e.g. Simma, Charter, pp. 807 ff., and 0. Schachter, 'Authorised Uses of Force by theUnited Nations and Regional Organisations' in The New Ivlternational Order and the LTseof Force (eds. L. Damrosch and D. J. Scheffer), Boulder, 1991, p. 65.
Note also the relevance of the right of collective self-defence under both customaryinternational law and article 51 of the Charter: see above, chapter 20, p. 1035.
'48 See e.g. M. Akehurst, 'Enforcement Action by Regional Agencies', 42 BYIL, 1967, p. 175.
3" That is, whether all actions noted in articles 41 and 42 are covered or just those using
military force.
'46'"

THE UNITED NATIONS

1155

appears to suggest rather controversially that not only is prior approval
not required, but that Security Council authorisation need not occur until
substantially after the action has commenced.
It is clear from articles 52(2) and (3) that peaceful settlement of disputes through regional mechanisms before resort is had to the Security
Council is the preferred route and this, on the whole, has been the practiceof the UN.~" Enforcement action is a different matter and here priority
lies with the Council under the Charter. However, the reference to theinherent right of collective self-defence in article 51 does detract somewhat from the effect of Chapter VIII, and it also seems clear that regional
peacekeeping operations, in the traditional sense of being based on consent of the parties and eschewing the use of force save in self-defence, do
not need the authorisation of the Security Council.
Several crucial issues concerning regional action and the UN arose in
the Grenada episode. There the United States argued that regional peacekeeping (as distinct from enforcement action) had occurred and that itconstituted one ofthe legal grounds for its action there.351The issue is also
raised in that case of the appropriate regional arrangement or agency. The
Charter of the Organisation of American States emphasises the territorial
inviolability of states and the prohibition of intervention,"" but article
22 notes that such provisions would not be violated by measures adopted
for the maintenance of peace and security 'in accordance with existingtreaties'.353The US view was that the 1981 treaty establishing the Organisation of Eastern Caribbean states operated as the necessary 'existing'or 'special' treaty. However, the OECS Defence Committee can only act
unanimously and in cases of external aggression and the Grenada episodewhereby troops landed to overthrow the Marxist government on the island would not satisfy the requirements, while it is only with difficultythat other articles may be used.354It is therefore rather problematic to
Although article 52(4) provides that 'this article in no way impairs the application ofarticles 34 and 35'.
'I
See statement of Deputy Secretary of State Dam, 78 AJIL, 1984, p. 200.
Articles 20 and 18.
'53 See also article 28, whereby American states are to apply 'special treaties on the subject'in the case of armed conflict or other act or situation endangering the peace of America.
'54 Article 3 includes among the functions and principles of the OECS 'such other activities
calculated to further the progress of the Organisation as the member states may fromtime to time decide: while article 4 calls on parties to carry out the obligations arisingout of the treaty: see 1. N. Moore, Laiv and the Grenada Mission, Charlottesville, 1984, pp.
C. Gilmore, The Grenada Intervention, London, 1984. See also American
45-50, and 1lT.
Bar Associatioil Section of International Law and Practice, Report on Grenada, 1984.
j5'

'"

1156

I N T E R N A T I O N A L L AW

interpret the OECS treaty as including the necessary regional peacekeeping action in the Grenada situation.
In the post-Cold War world, the ending of the rigidity of superpower
blocs entrenched in regional defence systems and the increasingly serious
resource problems faced by the United Nations have led to a reappraisalof the importance of Chapter VIII. The Secretary-General in A n Agenda
for Peace emphasised that regional organisations possessed a potentialthat could be utilised in the fields of preventive diplomacy, peacekeeping, peacemaking and post-conflict peace-building. In addition, 'regional
action as a matter of decentralisation, delegation and co-operation with
United Nations efforts could not only lighten the burden of the Council but also contribute to a deeper sense of participation, consensus anddemocratisation in international affairs'.'j5
Practice in the post-Cold War era has amply demonstrated the increasing awareness by the Security Council of the potentialities of regionalorganisations. References in resolutions of the Council have varied inthis regard. Some have specifically mentioned, commended or supported
the work of named regional organisations without mentioning Chapter~ 1 1 1 , others' ~ ~ have referred explicitly to Chapter ~ 1 1 1 , while~ ~ ' others
have stated that the Council is acting under Chapter VIII."" A particularly interesting example of the interaction of regional organisations
and the UN occurred with regard to Haiti. The OAS adopted sanctions
against Haiti upon the overthrow of the elected President Jean-Bertrand'" A n Agenda for Peace, p. 37. See also the statement of the President ofthe Security Council
on 28 January 1993 calling for greater co-operation between the Council and regionalorganisations, S125184. Specific reference is made in this statement to the Arab League,
European Community, the Organisation of the Islamic Conference, the Organisation ofAmerican States, the Organisation of African Unity and the Conference on Secmity andCo-operation in Europe.
""eee.g. Secmity Council resolutions 743 (1992) commending the ~vorkof the European
Community and the CSCE in former Yugoslavia and 855 (1993) endorsing the activitiesof the CSCE in former Yugoslavia; and resolution 865 (1993) noting the efforts of the
Arab League, the OAU and the Organisation of the Islamic Conference with regard to
Somalia.
35' E.g. Security Council resolutions 727 (1992) in regard to former Yugoslavia; 795 (1992) inregard to Macedonia; 757 (1992) in regard to formerfigoslavia; 816 (1993) extending the'no-fly' zone over Bosnia, and 820 (1993) in regard to former Yugoslavia; and resolution
751 (1992) with regard to Somalia, 'cognisant ofthe importance of co-operation between
the United Nations and regional organisations in the context of Chapter VIII of theCharter of the United Nations'.
358 See e.g. Security Council resolution 787 (1992) with regard to the maritime blockade offormer Yugoslavia; resolution 794 (1992) with regard to Somalia.

THE UNITED NATIONS

1157

Aristide in 1991.'j9 Although the General Assembly welcomed the act i o n ~ the, ~ Security~~
Council did not react. Eventually in June 1993, theCouncil, acting under Chapter VII, imposed an arms and oil embargo on
Haiti. Resolution 841 (1993) specifically referred to a series of OAS resolut i o n ~commended,~~~
the work of the OAS Secretary-General and stressed
the need 'for effective co-operation between regional organisations andthe United ~ a t i o n s ' . " ~In resolution 875 (1993), the Council acting under Chapters VII and VIII called upon member states 'acting nationallyor through regional agencies or arrangements' in co-operation with thelegitimate Government of Haiti to act to ensure the implementation of
the arms and oil embargo.
Liberia constitutes another instructive example.3h3A complicated civil
war broke out during 1989-90 and, in the absence of any moves by the UN
or the OAS, the Economic Community of West African States (ECOWAS)
decided to act. This organisation, which consists of sixteen members including Liberia, is aimed at improving living standards in the region.364A
Protocol on Non-Aggression was signed in 1978 and came into force three
years later.365This prohibits aggression among member states and does
not specifically mention peacekeeping nor provide for the right of unilateral intervention. In May 1990, ECOWAS established a Standing Mediation Committee and this called for an immediate ceasefire in Liberia
and for its implementation to be monitored by an ECOWAS monitoring group (ECOMOG). This group, led by Nigeria, landed in Liberia in
August 1990 and became involved in actual fighting. It is somewhat unclear whether ECOWAS provides a sufficient legal basis of itself to justify
the actions taken, and UN involvement did not occur until January 1991,
when the President of the Security Council issued a statement commending the efforts of ECOWAS to promote peace in Liberia and calling upon
the parties to the conflict to co-operate fully with ~ c O w A . 5In. ~April~~
OAS resolutions MREIRES.1191, MREIRES.2191 and MREIRES.3192. See article 19 ofthe
OAS Charter. See also Sl23109, 1991.
'I5'
See General Assembly resolution 4617, 1991.
z 6 1 Including in addition to those already mentioned, resolutions MREIRES.4192,
MREIRES.5193 and CPlRES.594 (923192), and declarations CPlDec. 8 (927193), CPlDec.
9 (931193) and CPlDec. 10 (934193).
'62 See also Security Council resolutions 917 (1994) and 933 (1994).
' 6 3 See e.g. G. Nolte, 'Restoring Peace by Regional Action: International Legal Aspects of the
Liberian Conflict: 53 ZaoRV, 1993, p. 603.
'64 See article 2 of the ECOWAS Treaty, 1975.
365 See also the Protocol Relating to Mutual Assistance on Defence, 1981.
" I 5 Sl22110lAdd.3, 1991.
'59

1158

I N T E R N A T I O N A L LAW

1992, ECOMOG proceeded to secure a buffer zone on the Liberia-Sierra
Leone border envisaged by an October 1991 accord (the Yamoussoukro
IV Accord) between the Liberian parties, to secure all entry and exit points
in the country and to enforce the disarmament of combatants.367
The situation, however, continued to deteriorate and the Security
Council adopted resolution 788 (1992) in November of that year. This
determined that the deterioration of the situation constituted a threat
to international peace and security 'particularly in West Africa as awhole' and recalled Chapter VIII of the Charter. The resolution commended ECOWAS for its 'efforts to restore peace, security and stability in Liberia' and, acting under Chapter VII, imposed an arms embargo upon that country. This support was reaffirmed in resolution
813 (1993), which also noted the endorsement of ECOWAS' efforts by
the O A U . With
~ ~ ~ the assistance of the special representative of the UN
Secretary-General, a new peace agreement was signed at Cotonou on 25
July 1993, which called upon ECOWAS and the UN to assist in its implementation.369The UN Observer Mission in Liberia was establishedto assist in this process.370Security Council resolution 866 (1993) inparticular noted that 'this would be the first peacekeeping mission undertaken by the United Nations in co-operation with a peacekeeping
mission already set up by another organisation, in this case ECOWAS'.
Subsequent resolutions continued to commend ECOWAS for its actions and the UNOMIL mission was extended. Eventually elections were
held.371
The Liberian situation is therefore marked by the following features:first, intervention in a civil war in an attempt to secure a ceasefire bya regional organisation whose authority in this area was far from clear"' Sl23863, 1992. This was also supported by a statement from the President of the Security
Council, S123886, 1992. See also 924815, 1993.
See also S125402, 1993.
369 The peace agreement provided that ECOMOG would have the primary responsibility ofsupervising the military provisions of the agreement, with the U N monitoring and verifying the process, S126200, 1993, and Security Council resolution 866 (1993) preamble.
3'0 See Security Council resolutions 856 (1993) and 866 (1993). See also Sl26200 and Sl26422
and Add. 1, 1993.
3" See e.g. Security Council resolutions 911 (1994); 950 (1994), which also commended
African states sending troops to ECOMOG; 1014 (1995), which also encouraged African
states to send troops to join ECOMOG; and resolutions 1020 (1995), 1071 (1996), 1100
(1997) and 1116 (1997) concerning elections. Note also the Security Co~ulcilPresidential Statement of July 1997 after the elections inter aliu commending ECOMOG,SlPRSTl1997141.

THE UNITED NATIONS

1159

constitutionally; secondly, delayed support by the Security Council inthe context of Chapter VIII until 1992; thirdly, the first establishment ofa dual UN-regional organisation peacekeeping operation; fourthly, theacceptance by the UN of the responsibility of the regional organisation
for military issues with the UN mission possessing a rather indeterminate monitoring and peace-encouraging role. It should also be noted thatapart from the imposition of the arms embargo in resolution 788 (1992),
Security Council resolutions refrained from referring to Chapter VII. The
UN, therefore, adopted very much a secondary role. While it is clear that
the Security Council ultimately supported the action taken by ECOWAS,
it is questionable whether the spirit and terms of Chapter VIII were fullycomplied with.372
As already noted, the UN in the situation in Bosnia turned to NATO""
in particular in order to enforce the arms embargo against all the statesof the former Yugoslavia and to implement sanctions against the Federal
Republic of Yugoslavia (Serbia and Montenegro). NATO airplanes in particular enforced the 'no-fly' zone over Bosnia (Operation Deny Flight) as
from April 1993 and on 28 February 1994, four warplanes were shot downby NATO aircraft for violating the zone. NATO airplanes also provided
close air support for UNPROFOR activities as from June 1993, and asfrom April 1994, air support to protect UN personnel in the 'safe areas'
was instituted. NATO airstrikes took place at UN request during 1994-5
in a variety of s i t ~ a t i o n s . ~ ~ ~ o l l theo w Dayton
in~Peace Agreement initialled in November 1995, a 60,000 troop NATO-led implementation force(IFOR) commenced operations in Bosnia. This was authorised by the
Security Council, acting under Chapter VII, in resolution 1031 (1995),
under which authority was transferred from UNPROFOR to IFOR.
Within a short time, this organisation gave way to SFOR (stabilisation
force).375SFOR is NATO-led, but there is participation by non-NATO?'"ate also ECO\L'i\S involvement in Guinea-Bissau under an agreement between thegovernment and the opposing junta: see 38 ILM, 1999, p. 28. Security Council resolution
1233 (1999) welconled the ECOlMOG role. ECOMOG also played a part in the Sierra
Leone crisis: see e.g. Security Council resolution 1162 (1998) commending ECOM'AS and
ECOMOG for playing an important role in restoring international peace and security,
and resolutions 1270 (1999) and 1289 (2000).
' 7 3 With the assistance of the WEU in the maritime activities in the Adriatic under Operation
Sharp Guard.
374 See e.g. S119951444, 1995.
375 See Security Council resolution 1088 (1996). See also http:l/~n~.nato.intlsforl

1160

I N T E R N A T I O N A L L AW

countries. In Kosovo, an international security presence parallels the international civil presence376and this force, KFOR, like SFOR in Bosnia,
is ~ ~ T o - l e d . ~ ~ 'Other regional organisations have sought to assert a similar role inconjunction with the Security Council. For example, the Organisation on
Security and Co-operation in Europe (CSCE then renamed the OSCE)
made a declaration at the Helsinki summit in 1992 that the organisation
constituted a regional organisation in the sense of Chapter VIII of theCharter and the increasing range of contacts between the OSCE and theU N . ~ 'In~ March 2003, the NATO peacekeeping mission in the Former
Yugoslav Republic of Macedonia, which had commenced in August 2001,
was handed over to the European Union, this being the first such mission
for the E U . ~ ' ~There has been relatively little discussion of the constitutional positionof such organisations to adopt such tasks, concern instead focusing on
the UN role and the instant crisis.380
Suggestions for further reading
Bowett's Law of International Institutions (eds. P. Sands a n d P. Klein), 5 t h edn,
London, 2001

J. G. hlerrills, International Dispute Settlement, 3rd edn, Cambridge, 1998,
chapter 10

N. D. White, Keeping the Peace, 2 n d edn, Manchester, 1998
The Charter of the United Nations (ed. B. Simma), 2 n d edn, Oxford, 2002
"6

See Security Council resolution 1244 (1999). See also above, chapter 5,p. 209.

377 See e.g, http://www.nato.int/kfor/~velcome.html.

j ' q e e OSCE Handbook 1996, Vienna, 1996, pp. 82 ff. Note also the role of the OSCE in
Bosnia under the Dayton peace arrangements: see above, chapter 18, p. 936.
j 7 9 e e http://n~~.nato.int/doc~1/update/2003/03-march/eO33lahtm
Note also the Commonwealth of Independent States' ~ i e wthat the CIS constitutes a regional organisation
within the meaning of Chapter VIII: see 35 ILM, 1996, p. 783. See also the creation of
an Interim Emergency Multinational Force in Bunia (the Democratic Republic of theCongo) in Security Council resolution 1484 on 30 May 2003. By a decision of 5 J ~ l n e
2003, the Council of the European Union authorised the sending of a peacekeeping force
pursuant to the Security Council resolution.
''O See Gray, Use of Force, pp. 209 ff.

International institutions

Historical development

The evolution of the modern nation-state and the consequent development of an international order founded upon a growing number of independent and sovereign territorial units inevitably gave rise to questionsof international co-operation.' Diplomatic representation became morewidespread as the system expanded and political and economic relationships multiplied. It soon became apparent, however, that diplomatic contacts in themselves were unable to cope completely with the complexitiesof the international system and the concept of the international conference evolved as a form of extended diplomacy. Such gatherings dealt withproblems that concerned more than two or three states and in many cases
resulted in an international treaty or formal peace. The first major instanceof this occurred with the Peace of Westphalia in 1648, which ended the
See C. F. Amerasinghe, Principles of the Institutional Law o f International Orpnisations,Cambridge, 1996; H . G. Schermers and N. M. Blokker, International Institutional Law,
3rd edn, The Hague, 1995; J. Klabbers, An Introduction to International Institutional Law,
Cambridge, 2002; Uowett's Laiv ofInternationa1 Institutions (eds. f! Sands and f! Klein) 5thedn, London, 2001; N. \\'bite, The Latv oflnternational Orpnisations, Manchester, 1996; P.
Reuter, Intel.nationa1 Institutions, London, 1958; Encyclopedia of Public Inte~.nationulLaw(ed. R. Bernhardt), Amsterdam, 1983, vols. V and VI; G. Schwarzenberger, Internationnl
Lniv, London, 1976, vol. 111;E. Lauterpacht, 'The Development of the Law of International
Organisations hy the Decisions of International Tribunals: 152 HR, p. 377; F. Kirgis, Interrlationrzl Organiscztions in their Legal Settings, 2nd edn, St Paul, 1993; A. El Erian, 'The
Legal Organisation of International Society' in Manual of Public International Laiv (ed. M.
Sarensen), London, 1968, p. 55; M. \$'hiteman, Digest of International Law, Washington,
1968, vol. XIII; A Handbook of International Organisations (ed. R. J. Dupuy), Dordrecht,
1988; I. Seidl-Hohenveldern, Corporatioils bz and L'nder lnternatiorzal Law, Cambridge,
1987; F. ~Morgenstern,Legal Problems of lnterizational Organisatioils, Cambridge, 1986, andNguyen Quoc Dinh, P. Daillier and A. Pellet, Droit International Pilblic, 7th edn, Paris,
2002, p. 571. See also G. Schinvone, International Organisations: A Dictionary and Directory, London, 1992, and Union of International Associations, Yenrbook of International
Organisations, 39th edn, Brussels, 5 vols., 2002-3.

1162

I N T E R N A T I O N A L LAW

thirty-year religious conflict of central Europe and formally establishedthe modern secular nation-state arrangement of European politic^.^
The French wars of Louis XIV were similarly brought to an end by
an international agreement of interested powers, and a century later the
Napoleonic wars terminated with the Congress of Vienna in 1815. Thislatter conference can be taken as a significant turning-point, for it marked
the first systematic attempt to regulate international affairs by means ofregular international conferences3 The Congress system lasted, in various
guises, for practically a century and institutionalised not only the balanceof power approach to politics, but also a semi-formal international order.4
Until the outbreak of the First World War, world affairs were to a large
extent influenced by the periodic conferences that were held in Europe.
The Paris conference of 1856 and the Berlin gathering of 1871 dealt withthe problems of the Balkans, while the 1884-5 Berlin conferences imposedsome order upon the scramble for Africa that had begun to develop.
These, and other such conferences, constituted an important prelude to
the establishment of international institutions, but became themselves
ever more inadequate to fulfil the job they had been intended to do. A
conference could only be called into being upon the initiative of one ormore of the states involved, usually following some international crisis,
and this ad hoc procedure imposed severe delays upon the resolution of
the issue. It meant that only states specifically invited could attend andthese states made decisions upon the basis of unanimous agreement, afactor which severely restricted the utility of the system.'
The nineteenth century also witnessed a considerable growth in international non-governmental associations, such as the International Committee of the Red Cross (founded in 1863) and the International Law Association (founded in 1873). These private international unions 6 demonstrated a wide-ranging community of interest on specific topics, and anawareness that co-operation had to be international to be effective. Suchunions created the machinery for regular meetings and many establishedpermanent secretariats. The work done by these organisations was, andremains, of considerable value in influencing governmental activities andstimulating world action.
This can be seen particularly with reference to the International Committee of the Red Cross and the efforts made by it to bring into being the
See e.g. L.Gross, 'The Peace of Westphalia, 1648-1948; 42 AJIL, 1948, p. 20.
See e.g. El Erian, 'Legal Organisation', p. 58.
"ee e.g. Reuter, Institutions, pp. 55-6. See also Botuett's International Institutions, chapter 1.
Boivetti International I n ~ t i t u t i o n p.
~ , 3.
Ibid., pp. 4-65.

INTERNATIONAL INSTITUTIONS

1163

Geneva Conventions and Additional Protocols7 dealing with, for example, the treatment of prisoners and the regulation of military occupations.
In fact, a number of these private international unions rather belie theirname by including within their membership state representatives as wellas national bodies and private individuals. To some extent impelled by
the example of the private international unions, there developed during the course of the nineteenth century a series of public international
unions. These were functional associations linking together governmental departments or administrations for specific purposes, and were set
up by multilateral treaties. The first instances of such inter-governmental
associations were provided by the international commissions established
for the more efficient functioning of such vital arteries of communication as the Rhine and Danube rivers, and later for other rivers of Central
and Western ~ u r o p e The. ~ powers given to the particular commissions
varied from case to case, but most of them performed important administrative and legislative functions. In 1865 the International Telegraphic
Union was set up with a permanent bureau or secretariat and nine years
later the Universal Postal Union was created. This combined a permanent bureau with periodic conferences, with decisions being taken bymajority vote. This marked a step forward, since one of the weaknessesof the political order of ad hoc conferences had been the necessity for
unanimity.
The latter half of the nineteenth century was especially marked by the
proliferation of such public international unions, covering transportation, communications, health and economic co-operation. These unions
restricted themselves to dealing with specific areas and were not comprehensive, but they introduced new ideas which paved the way for theuniversal organisations of the twentieth century. Such concepts as permanent secretariats, periodic conferences, majority voting, weighted voting and proportionate financial contributions were important in easing
administrative co-operation, and they laid the basis for contemporaryinternational institutions.
The innovation of the twentieth century was, of course, the creationof the global, comprehensive organisations of the League of Nations andthe United Nations. These were, in many ways, the logical culmination of
the pioneering work of the private and public international unions, thelarge numbers of which required some form of central co-ordination.
This function both the League and the UN attempted to provide.

' See above, chapter 21, p. 1054.

"ee

B o ~ v e t t iInternational In~titt~tions,pp. 6-9.

1164

I N T E R N A T I O N A L LAW

This chapter is thus concerned with institutions that bind together
states or governments in common enterprises and not non-governmentalorganisations.
Approaches to international institutions
There are a number of different ways in which one can approach thephenomenon of international organisation within the world order.
The rationalist approach9 emphasises the notion of a world order ofstates that is moving towards the more sophisticated types of order foundwithin states. It is progressive in that it believes in the transformation ofa society of states into a true world community based upon the application of universally valid moral and legal principles. In other words, thedevelopment of the United Nations into a real world authority is seen not
only as beneficial but also as, in the long run, inevitable. This is to beaccomplished by the gradual increase in the influence and responsibilityof the organisation in all fields of international peace and security. Thus
international organisations have a profound substantive as well as procedural purpose, and are intended to function above and beyond mere
administrative convenience. To put it another way, the rationalists emphasise the role of such institutions as active performers upon the worldstage rather than as mechanisms to greater efficiency.10
Another approach is the revolutionary one, which regards international
institutions in terms of specific policy aims." Here, the primary aim is
not the evolution of a world community of states based upon global
associations as perceived by the rationalists, but rather the utilisation ofsuch institutions as a means of attaining the final objective, whether it be
the victory of the proletariat or the re-arrangement of existing states into,
for example, continental units.
The third approach is exemplified by the doctrine of realism.12This centres its attention on the struggle for power and supremacy and eschews
any concern for idealistic views. The world stage is seen as a constantSee e.g. G. Goodwin, 'World Institutions and Il'orld Order' in The New) International
Actors (eds. C. Cosgrove and K. Twitchett), London, 1970, pp. 55-7. See also The Concept
oflnternational Organisation (ed. G. Abi-Saab), Paris, 1981, andMr.J. Feld and R. S. Jordan,
Irlternational Organisations, New York, 1983.
l o See e.g. Bowett's International Institutions, chapter 2; G. Scott, The Riseand Fallofthe League
ofNations, London, 1973; El Erian, 'Legal Organisations: pp. 60 ff., and F. P. Walters, A
History of the League of Nations, Oxford, 2 vols., 1952.
l 1 Goodwin, 'World Institutions: pp. 57-61.
Ibid., pp. 61-4.

''

INTERNATIONAL INSTITUTIONS

1165

and almost chaotic interweaving of contentious state powers, and international institutions are examined within the context of the search fordominance. Both the League and the UN were created to reinforce thestatus quo established after the World Wars, it is stressed, although the latter institution is now seen as reflecting the new balance of power achieved
with the growth of influence of the states of the Third World. Since what
can be described as a world order is merely a reflection of the operationof the principle of the balance of power, realists see the role of world organisations as reinforcing that balance and enabling it to be safely andgradually altered in the light of changing patterns of power; although, tobe accurate, their overall attitude to such organisations is usually characterised by cynicism, as the inherent weaknesses in these organisations
have become apparent.
One may, however, concentrate upon those areas where the interdependence of states has impelled them to create viable organs for co-operation.
By this means, by identifying such subjects for international agreement,
it is hoped to be able to encourage growing circles of co-operation which
may eventually impinge upon the basic political areas of world peace.
This functional approach13 appears as a cross between the nationalist andrealist trends and is one much examined in recent years. This approachalso emphasises the pattern of institutional behaviour and the operationsof the relevant bureaucracies, including the way in which the tasks set forthe organisation are identified and completed. Decision-making analysis
is another useful tool in this area.
It is also possible to examine international organisations in a variety
of other ways, ranging from historical and comparative exposition to
analysis of the legal rules underlying the establishment and operationsof the particular institution. Because of the great diversity of international and regional intergovernmental organisations, ranging from theUnited Nations to the North Atlantic Treaty Organisation and the International Labour Organisation, great difficulty has been experienced inclassifying the relevant material. In this chapter, the simplest method ofdivision into institutions of a universal character, regional institutions
and the legal aspects of international institutions will be adopted. Within
the relevant categories, the particular functions of different organisations, as well as their varying constitutional framework, will be briefly
noted.
l 3 See e.g. D. Mitraily, A WorkingPeuce Syxtem, London, 1966, and 'The Functional Approachto World Organisation' in Cosgrove and Twitchett, hTew International Actors, p. 65.

I N T E R N A T I O N A L LAW

Institutions of a universal character

The League of Nations l 4
The League of Nations, created in 1919, sought to promote international
co-operation, peace and security upon the basis of disarmament, thepeaceful resolution of disputes, a guarantee of the sovereignty and independence of member states and sanctions.15 It was left to each member
to conclude whether a breach of the Covenant of the League had takenplace or not, and in the last resort whether or not to apply sanctions.
This system worked with regard to certain relatively minor crises in the
Balkans and South America, but failed where European powers or Japan
were directly involved. The German, Italian and Japanese aggressions in
the 1930s, and the Russian invasion of Finland in the Winter War, evoked
little meaningful response from the League.
The League consisted of three principal organs. The Council, a semiexecutive body, consisted of the Principal Allied and Associated Powers
plus a number of non-permanent members, and reached its decisions
unanimously. Such decisions were not binding upon member states. The
Assembly consisted of representatives of all members and met annually,
while the Secretariat functioned as an international civil service. Although
an international organisation, it never became universal. It stayed to all
intents and purposes a European-centred institution. It was formally dissolved in April 1946.

The United Nations
The United Nations arose as an attempt to remedy the defects of the
League system. It grew out of a series of wartime declarations and conferences, culminating in the San Francisco conferences of 1945, which
finally adopted the UN Charter. The establishment of the UN Organisation proved to be one of the major innovations of the last century ininternational relations, not only in the fields of the peaceful settlement ofdisputes and the use of force, but also with regard to wide-ranging economic and social co-operation among states. It has had to date a history
marked by periods of intense activity interspersed with periods of relative
inactivity. The United Nations Organisation has been discussed in moredetail in chapter 22.
l 4 See e.g. Bowett's Internatiorlal Institutions, chapter 2; Scott, Rise and Fall; El Erian, 'Legal

Organisation', pp. 60 ff., and Walters, History of the Lcaguc ofNatiorls.
l5 See articles 8 and 10-17 of the Covenant of the League of Nations. See also above, chapter

22, p. 1099.

INTERNATIONAL INSTITUTIONS

1167

International economic organisations
Reference should be made at this stage to other international economic
arrangements. The GATT'~arose out of an international conference heldat Havana in 1947-8 at which it was decided to establish an International
Trade Organisation. The organisation did not in fact come into being.
However, a General Agreement on Tariffs and Trade (GATT) had been
agreed shortly before the conference, involving a series of tariff concessions and trade rules, and this originally temporary instrument continued.
The arrangement operated on the basis of bilateral approach to trade negotiations coupled with unconditional acceptance of the most-favourednation principle (by which the most favourable benefits obtained by one
state are passed on to other states), although there were special conditions
for developing states in this respect. A series of tariff and trade negotiatingrounds were held under the auspices of the GATT, which thus offered apackage approach to trade negotiations, and a wide variety of tariff reductions was achieved, as well as agreement reached on mitigating non-tariffbarriers. The eighth such round, termed the Uruguay round, commenced
in 1986 and concluded with the signing at Marrakesh on 15 April 1994 ofa long and complex agreement covering a range of economic issues, suchas agriculture, textiles and clothing, rules of origin, import licensing yrocedures, subsidies, intellectual property rights, and procedures on disputesettlement. In addition, the agreement provided for the establishment of
the World Trade Organisation on 1 January 1995 as a permanent institution with its own secretariat. The organisation consists of a Ministerial
Conference, consisting of representatives of all members meeting at least
once every two years; a General Council composed of representatives ofall members meeting as appropriate and exercising the functions of theConference between sessions;17 Councils for Trade in Goods, Trade inServices and Trade Related Aspects of Intellectual Property Rights operating under the general guidance of the General Council; a Secretariat
e.g. K. W. Dam, The GATT Law and International Ecoizonlic Relations, Chicago, 1970;
Iizternational Lutv Cases and Materials (eds. L. Henkin, R. C. Pugh, 0.
Schachter and H.
Smit), pp. 1396 ff.; 1. H. rackson, The World Trading Systenz, 2nd edn, Cambridge, MA,
1997; T. Flory, 'Les Accords du Tokyo Round du GATT et la Reforme des Procedures deReglement des Diffirends dans la SystPme Commercial Interitatique', 86 RGDIP, 1982,
p. 235; T. Cameron and K. Campbell, Dispute Settlenlent in the 12iT0, London, 1998;
Laiv, London, 1999, and I. Seidl-Hohenveldern,A. H. Qureshi, International Ecor~orr~ic
International Economic Law, 2nd edn, Dordrecht, 1992, p. 90.
l 7 The General Council will also meet to discharge the responsibilities of the Dispute Settlement Body and the Trade Policy Review Body: see article IV(3) and (4) of the 1994
Agreement.

"' ee

1168

I N T E R N A T I O N A L L AW

and a ~ i r e c t o r - ~ e n e r a l .The
" organisation's main aims are to administerand implement the multilateral andplurilateral trade agreements together
making up the WTO, to act as a forum for multilateral trade negotiations,to try and settle trade disputes and to oversee national trade policies. The
GATT of 1947 continued until the end of 1995, when it was effectively
subsumed, with changes, as GATT 1994 within the WTO system.
Regional institutions
The proliferation of regional institutions, linking together geographicallyand ideologically related states, since the close of the Second World War,has been impressive. A number of factors can help explain this. The onsetof the Cold War and the failure of the Security Council's enforcement
procedures stimulated the growth of regional defence alliances and bloc
politics. NATO, and its various sister organisations covering the Middle
and Far East, confronted the Warsaw Pact. The decolonisation process
resulted in the independence of scores of states, most of which were
eager to play a non-aligned role between East and West. And to this end,
regional organisations developed to reflect common interests (and sometimes common hostilities) in a superpower world. These included theArab League, the Organisation of American States and the Organisationof African Unity (now the African Union), in particular.
But it was in Europe that regionalism became most constructive andpolitical. The establishment of the European Economic Community(thereafter European Union), in particular, was intended to lay the basis
for a resurgent Western Europe with meaningful economic and political
integration.

EuropeThe North Atlantic Treaty 0rganisation19
This was created in 1949 to counter possible threats from the East. It
associated the United States and Canada with fourteen European powers
for the protection, in essence, of Western Europe (although Greece andlS See article IV of the Agreement.

e.g. The NATO Handbook, Brussels, 2002 and at http://wv.nato.int/doc~~/
handbook/2001/index.htm; C. Archer, Organising Europe, London, 1994, chapter 9;
Boivetti International Institt~tions,pp. 180 ff.; K. Myers, NATO, The Next Thirty Years,
Boulder, 1980, and L. S. Kaplan and R. W. Clawson, NATO After Thirty Year?,Il'ilmington,
1981.

lY
See

INTERNATIONAL INSTITUTIONS

1169

Turkey are also involved). By the Treaty,20the parties agreed to consult
where the territorial integrity, political independence or security of anyof them has been threatened," and accepted that an armed attack against
one or more of them in Europe or North America should be considered
an attack against
The alliance consists of a Council which is the supreme organ andon which all members are repre~ented,~%nda series of civil and military committees covering all aspects of security work. However, in 1966
France withdrew from the military side of the alliance while remaining amember of the organisation itself.24There also exists a NATO parliamentary conference (the North Atlantic Assembly) which acts as an official
consultative body. The ending of the Cold War brought about a varietyof changes in the organisation. A North Atlantic Co-operation Council(NACC) was established in 1991 with its membership consisting ofNATO
states and former members of the Warsaw Pact, including the successor
states to the USSR, and was replaced in 1997 by the Euro-Atlantic Partnership Council (EAPC). In 1994, the Partnership for Peace programme wasinaugurated within the framework of the NACC and later the EAPC. This
brings together EAPC and other OSCE~'states into a co-operative framework, which has the potential to provide the mechanism for enlarging themembership of NATO itself. While the Partnership forfocuses
upon practical, defence-related and military co-operation, the EAPC constitutes the forum for broad consultation on political and security issues.
Countries participating in the Partnership for Peace sign a Framework
Document, affirming the commitment to the preservation of democraticsocieties and the maintenance of the principles of international law, to
fulfil in good faith the obligations of the UN Charter and the principles
contained in the Universal Declaration on Human Rights and to respect
existing borders. NATO has, in co-operation with the Western European" 43 AJIL, 1949, Supp., p. 159.

" Article 4. Support to Turkey was requested and provided in early 2003 under article 4:see
http://~~~~~~~.nato.int/doc~~/pr/2003/p030216e.htm.
22 Article 5. This was invoked for the first time on 12 September 200 1, when the Allies declaredthat the terrorist attack on the US was deemed to constitute an attack on all members of
the alliance: see http://~~~.nato.int/docu/pr/2003/pO30216e.htm.
2' Article 9.
"'eee.g. T. Stein and D. Carreau, 'Law and Peaceful Change in a Subsystem: "Withdrawal"of France from NATO: 62 AJIL, 1968, p. 557.
Organisation for Security and Co-operation in Europe: see below, p. 1179.
' 6 This currently has thirty members, excluding NATO members: see NATO Basic Factsheet,
No. 9, 1996 and http:/i~vcvcl~,nato,int/pfp/sig-date.htm.

''

1170

I N T E R N A T I O N A L L AW

Union, helped in implementing UN sanctions in the Former Yugoslavia
and led the multinational implementation force (IFOR) in Bosnia in enforcement of the Dayton Peace Agreement of 1995 and its replacement
SFOR as from December 1996.~'NATO also forms the core of KFOR in
Kosovo and had a peacekeeping role in the Former Yugoslav Republic ofMacedonia until replaced in April 2003 by the European Union. Seven
additional countries were invited to join NATO in November 2 0 0 2 . ~ ~The Western European
The WEU was founded upon the basis ofthe Brussels Treaty of 1948 signed
by five Western European states.30The proposed defence arrangements
were subsumed within NATO. In 1954, Germany and Italy were invited
to accede to the Brussels Treaty, thus forming the WEU. The original
intention to a large extent was to exercise some kind of control over theextent of German rearmament. A variety of organs were created including
a Council, consisting of a Council of Foreign and Defence Ministers ofmember states and a Permanent Council of representatives, and a Parliamentary Assembly, consisting of member states' delegations to theCouncil of Europe. Its social and cultural functions were transferred to
the Council of Europe in 1960. From 1954 until the late 1980s, the WEU
in fact exercised only a very limited role. In 1988, Spain and Portugal
joined the WEU. With the ending of the Cold War and the consequential withdrawal of US forces from Europe and with the evolution of theEuropean Community, a new role for the WEU began to be formulated.
Under the Treaty on European Union (the Maastricht Treaty) of 1992, theWEU was described as an integral part of the union 3 ' and the WEU Declaration adopted at the Maastricht Summit stated that the WEU would
be developed as the defence component of the European Union and as ameans for strengthening the European pillar of the AtlanticIn
1992, the \/VEU Council of Ministers adopted the Petersburg Declaration,
under which military units from WEU member states could be used formilitary and other purposes in co-operation with the CSCE (now OSCE)" See Security Council resolution 1088 (1966) and see above, chapter 22, p. 1159.

Bulgaria, Estonia, Latvia, Lithuania, Romania, Slovakia and Slovenia.
e.g. Archer, Organising Europe, chapter 10, and T. Taylor, Etlropean Dcferlce
Co-operation, London, 1984. See also http://\n~'c\,.weu.int/.
30 UK, France, Belgium, the Netherlands and Luxembourg.
See Title V (Provisions o n a Common Foreign and Security Policy), Article J.4(2).
3' Final Act Declarations: see P. Duffy and J. Y.de Cara, European Union - The La~vyeri
Guide - So~~rces,
London, 1992, pp. 351 ff.

29 See"INTERNATIONAL INSTITUTIONS

1171

and the UN Security Council and a Forum for Consultation with Central
and Eastern European states was also created.33 The WEU also developed a role in the Yugoslav crisis, both in enforcing the Security Council~ in forming part of the joint
sanctions in co-operation with N A T O ~andEuropean UnionIWEU administration of the city of Mostar in Bosnia in
July 1994. In 1993, the headquarters ofthe WEU was moved from London
to Brussels in order to enhance co-operation with NATO. The WEU has
also conducted a police training mission in Albania in 1997 and demining
operations in Croatia from 1997.~'
The Council of ~ u r o p e ' ~The Council of Europe was created in 1949 with wide-ranging cooperative aims. There are currently forty-four member states.37 The
Council comprises the Committee of Ministers, consisting of governmental representatives, and the Parliamentary Assembly, composed ofmembers representing the Parliaments of the member states. The Committee can conclude conventions or agreements; make recommendations
to member states and issue declarations." The Committee can invite
states to become full or associated members of the Council of Europe
and can suspend states from membership.39The Parliamentary Assemblyis the deliberative organ of the Council. It may recommend action uponmatters referred to it by the Committee ofMinisters and may adopt resolutions. Recommendations require a two-thirds majority, while resolutions
require a simple majority.40
The most important part of the work of the Council of Europe is the
preparation and conclusion of conventions and protocols. There are averylarge number ofthese, including preeminently the European Convention
11

See Archer, OrganisingEurope, p. 248.
See above, chapter 22, p. 1159. Note that the WEU had a minesweeping role in 1988-90
in the Iran-Iraq war and co-ordination mechanisms were put into place during the Gulf
War of 1990-1.
j v h e r e are currently ten full members, six associate members (being NATO members but
not member states of the European Union), five observers (being member states of theEuropean Union, but not members of NATO, apart from Denmark which has decided
not to become a full member of the WEU) and a further seven associate partners (having
signed association agreements with the European Union).
j6 See e.g. Archer, Orgarlisirlg Europe, chapter 4; A. H. Robertson, The Cotlncil o f Europe,
2nd edn, London, 1961, and T. Ouchterlony, The Council of Europe in the Neiv Europe,
Edinburgh, 1991. See also above, chapter 7, p. 319, and h t t p : / / ~ w . c o e . i n t .
" Spring 2003. Serbia and Montenegro joined as the forty-fifth member in April 2003.
38 See articles 15 and 16 of the Statute of the Council of Europe.
'"rticle
8.
" See articles 22 and 23.
j4

1172

I N T E R N A T I O N A L LAW

for the Protection of Human Rights and Fundamental Freedoms (1950),
but including also the European Social Charter (1961) and agreements
dealing with cultural and educational questions and conventions covering
patents, extradition, migration, state immunity, terrorism and others.
The Organisation for Economic Co-operation and ~ e v e l o p m e n t ~ 'This organisation was established in1960 and developed out of the European machinery created to administer the American Marshall Plan, which
was aimed at reviving the European economies.42Its membership includes
the USA, Canada and ~ a p a n and, ~ ~it exists to maintain and encourage
economic growth world-wide. Article 1 of the Convention on the Organisation for Economic Co-operation and Development, 1960 specificallyprovides that the aims of the organisation are to promote policies designed
to achieve the highest sustainable economic growth and employment anda rising standard of living in member countries, while maintaining financial stability; to contribute to sound economic expansion in member andnon-member states, and to contribute to the expansion ofworld trade ona multilateral and non-discriminatory basis. Its main organ is the Council, which includes all the members of the organisation, and it proceeds by
way of unanimity, except in special cases. It is thus by no means a supranational body, since no state can be bound against its will. It possesses
an Executive Committee and other committees and autonomous bodies
aimed at encouraging co-ordination and co-operation, as well as a secretariat based in Paris consisting of some twenty directorates and services.
The European
This is undoubtedly the most important European organisation, as well
as being by far the most sophisticated regional institution so far created. It
consists, in fact, of three interlocking communities - the European Coal
See e.g. Archer, Orgafiising Europe, chapter 3; Botvett's Internatio~zalIfistit~ltiofis,
pp. 167
ff., and Miller, 'The OECD', YBTlrA, 1963, p. 80. See also http://rnw~v.oecd.org.
42 This was the Organisation for European Economic Co-operation, created in 1948.
4' By article 16 of the 1960 Treaty, membership is open to any government by unanimous
invitation of the Council. There were twenty founding countries and currently thirty
member states.
44 See e.g. T. Hartley, The Foundations of Europeari Comrnunity Law, 5th edn, Oxford, 2003;
Lasok'x Laiv and Iristitutiorls oftl~eEuropeanComrrl~~nities(eds. D. Lasok andK. P. E. Lasok),
7th edn, London, 2001; D. Wyatt and A. Dashwood, European Comrnunify Law, 4th edn,
London, 2000; Coinmissioil of the European Communities, Thirty Years of Community
Law, Luxembourg, 1983; S . Weatherill and P. Beaumont, ELTLatv,3rd edn, London, 1999,
and 1.Steiner, Textbook on EEC Law, 8th edn, London, 2003. See also http://europa.eu.int/.
4'

INTERNATIONAL INSTITUTIONS

1173

and Steel Community (the ECSC, created in 1951),~'the European Economic Community and the European Atomic Energy (Euratom) Community (both created in 1957) and operates to a significant extent as asupranational enterprise. The basis of the Union (formerly the European
Community) lies in furthering economic integration and, possibly in thelonger term, political union. The EU aims at establishing a single unified
market with common external tariffs and the elimination of internal tariffs and quotas, and it promotes the free movement of capital and labour.
There also exists a Common Agriculturaland a series of association agreements with Third World countries under the Yaounde, Arusha
and Lomi. convention^.^^ The Single European Act, signed in 1986 withthe aim of eliminating the remaining impediments to the creation of asingle internal market by the end of 1992, introduced several importantchanges. It created a new co-operation procedure whereby the Parliament is given a second opportunity to consider draft legislation. Where
the Parliament objects to the proposal in question as a result of its second consideration, the Council of Ministers may only adopt it by acting
unanimously and within a three-month period. Where the Parliament
proposes amendments, the European Commission may re-examine theproposal and if it rejects the amendments, they may only be adopted by
the Council acting unanimously. The range of issues upon which the Parliament must be consulted was also greatly increased, so that the majorityof measures relating to the establishment of the single internal market
are included. The Treaty on European Union, 1992 imported further
significant changes. The European Union was established, consisting of
the European Community (as the European Economic Community was
renamed), the ECSC, Euratom, coupled with two processes entitled respectively the 'Common Foreign and Security Policy' and 'Co-operationin Justice and Home Affairs'. This treaty also aimed at the establishmentof a common currency through European Monetary union" and at theevolution of social protection through an associated Agreement on Social Policy (the Social
The European Parliament obtained
Note that the European Coal and Steel Community Treaty expired in 2002 and was notrenewed.
46 See articles 32-8 of the EC Treaty (Consolidated Version). See also M. Melchior, 'The
Common Organisation of Agricultural Markets' in Thirty Years o f Comnit~nityLatv,
pp. 439 ff.
See e.g. M. Flory, 'Commercial Policy and Development Policy' in Thirty Yean of Comm14nityLaiv, pp. 375, 387 ff.
Although the UK and Denmark were not committed to this objective.
4%ich
is not binding upon the UK.
45

"

"

1174

I N T E R N A T I O N A L LAW

increased powers under this treaty,'' while a new Committee of the Regions was established, consisting of representatives of local and regional
bodies, and the Court of Auditors gained institutional status.
The European Union, although based on the ECSC, EEC and Euratom
arrangements, has a common set of institution^.^^ It was enlarged following the accession of the UK, Ireland and Denmark on 1 January 1973; ofGreece on 1 January 1981; of Spain and Portugal on 1 January 1986 and ofAustria, Finland and Sweden on 1 January 1995." In 1991 an agreement
signed with the states of the European Free Trade ~ r e a "provided for thecreation of a European Economic Area under which Community law inrelevant areas would apply to these states. However, the European Courtof Justice declared this agreement to be contrary to the EC Treaty.j4 A
revised version was accepted by the Court in 1 9 9 2 , ~and~ came into force
on 1 January 1994 with Sweden, Finland, Austria, Iceland and Norway.
However, since the first three of these states joined the Union the following
year, the future of the European Economic Area is unclear.56
The institutions of the Union comprise primarily the European Parliament, the Council of Ministers, the Commission and the Court of Justice.
The European Parliament was first created under the Treaty of Rome in1957 and consists of at present 626 members, directly elected since 1979.
It holds plenary sessions about one week a month and has a variety ofstanding committees, studying such topics as political, legal, economic,
social, agricultural and regional questions. It meets in Strasbourg for themonthly plenary sessions and in Brussels for the committee meetings
and for additional sessions, while the secretariat general is based in Luxembourg. Germany since unification has ninety-nine seats; Britain, Italy
and France have eighty-seven seats each; Spain has sixty-four seats; theNetherlands thirty-one; Belgium, Greece and Portugal have twenty-five'O

See below, p. 1175.

" See the Treaty Establishing a Single Council and a Single Commission of the European
Communities, 1965, which entered into force on 1 July 1967.
" A further thirteen states have applied to join the EU. Ten of these countries (Cyprus, theCzech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, the Slovak Republicand Slovenia) are set to join on 1 May 2004. Bulgaria and Romania hope to do so by 2007,
while Turkey is not currently negotiating its membership.
Norway, Sweden, Finland, Iceland, Switzerland, Liechtenstein (an applicant to join EFTA)
and Austria.
" First EEA Case, Opinion 1191, [I9911 ECR 6079.
j' Second EEA Cuse, Opinion 1192.
' 6 Note that Switzerland did not take part following a referendum rejecting the proposedarrangement. The EEA continues, however, and is currently composed of Norway, Icelandand Liechtenstein.

"INTERNATIONAL INSTITUTIONS

1175

seats each; Sweden has twenty-two seats; Austria has twenty-one seats;
Denmark and Finland have sixteen seats each; Ireland has fifteen seatsand Luxembourg has six seats.j7
The powers of the Parliament are rather limited in practice," and varyconsiderably depending upon the particular treaty provision under whicha proposal is adopted and on the provision of the applicable treaty. In certain circumstances, a consultation procedure is applicable under which
the Parliament is required to give an opinion before a legislative proposal
from the Commission can be adopted by the Council. In other areas, there
is a co-operation procedure allowing Parliament to improve proposed
legislation. A co-decision procedure exists in certain cases, for example,
consumer protection, education, health and trans-European networks, bywhich decision-making power is shared between the Parliament and theCouncil equally. A Conciliation Committee, consisting of equal numbersof members of the Parliament and of the Council with the Commission
present, seeks to reach a compromise on the text of a particular proposal.
If there is no agreement, Parliament may reject the proposal outright.59
Parliament's approval is required for important international agreements,
such as the accession of new member states and association agreementswith third states. The EU's budget is agreed each year by the Parliament,
which may propose modifications and amendments to the Commission's
initial proposals and to the position taken by the member states in theCouncil. The Council has the final decision in some areas, such as agricultural spending, but Parliament decides in co-operation with the Council in other areas, such as education, regional
funds and environmental
projects. The Parliament exercises a level of scrutiny over the work of theCommission and may vote to dismiss the whole Commission (which has
not happened to date).
c he-council of Ministers consists of one representative from each of
the member states and is the guardianof national interest^.^' It is also theultimate political authority in the Union, taking the final decision on mostWhen the Treaty of Nice comes into force these figures will be revised. Taking into account
countries with whom accession discussions are underway, Germany will have ninety-nineseats; the UK, France and Italy seventy-two; Spain and Poland fifty; Romania thirtythree; the Netherlands twenty-five; Greece, Portugal and Belgium twenty-two; the Czech
Republic and Hungary twenty; Sweden eighteen; ~ ~ ~ l g a nr ida~ u s t r i aseventeen; Slovakia,
Denmark and Finland thirteen; Ireland and Lithuania twelve; Latvia eight; Slovenia seven;
Estonia, Cyprus and Luxembourg six; and Malta five.
i8 See e.g. Weatherlll and Beaumont, EU Law, pp. 100 ff.
'j See artlcles 251 and 252 of the EC Treaty (Consolidated Version).
See e.g. Weatherlll and Beaumont, EU Law, pp. 73 ff.
j7

1176

I N T E R N A T I O N A L LAW

legislation, for example. The question of which governmental ministers
will attend the meetings depends upon the issues to be discussed. Since
the adoption of the Treaty on European Union, the work of the Union
takes place upon the basis of three 'pillars'. The first pillar covers the traditional range of Community activities prior to 1992. In the majority ofareas (including agriculture, fisheries, the internal market, environment
and transport), the Council will decide by qualified majority votingh' In
this scheme, Germany, France, Italy and the UK each possess ten votes;
Spain has eight votes; Belgium, Greece, the Netherlands and Portugal
have five votes each; Austria and Sweden have four votes each; Ireland,
Denmark and Finland have three votes each, and Luxembourg has two
votes. Where a proposal ofthe Commission is concerned, at least sixty-two
votes are required, otherwise the qualified majority is sixty-two, provided
that at least ten member states are involved.62Certain other areas, suchas taxation, culture, and regional and social funds, require unanimity.
As far as the other two pillars are concerned (the Common Foreign and
Security Policy, and Provisions on Police and Judicial Co-operation in
Criminal Matters) unanimity is required, save where a joint action is
being implemented. Since ministers do not meet constantly, a Committee of the Permanent Representatives of the member states (COREPER)
provides continuity and matters needing Council decision appear firstat this committee. At least twice a year the Heads of State and Government, together with the President of the Commission, meet as the European Council at which the most important political decisions tend to be
made.63
Subordinate to the Council, and subject to parliamentary control, isthe European C o m m i ~ s i o nThis. ~ ~ currently has twenty members chosen" Areas~~hereproposals
are capable of acceptance by qualifiedmajority votingwereincreasedby the Single European Act 1986.
" See article 205(2) ofthe EC Treaty (ConsolidatedVersion).Upon the entry into force of theTreaty of Nice and upon the basis of a Union consisting of twenty-seven states, the figures
will be as follows: Germany, the UK, France and Italy will have twenty-nine weightedvotes;
Spain and Poland twenty-seven; Romania fourteen; the Netherlands thirteen; Greece, theCzech Republic, H u n g a r ~Portugal and Belgium twelve; Sweden, Bulgaria and Austria
ten; Slovakia, Denmark, Finland, Ireland and Lithuania seven; Latvia, Slovenia, Estonia,
Cyprus and Luxembourg four; and Malta three. Where a proposal of the Commission isconcerned, at least 258 votes are required cast by a majority of members, in other cases atleast 258 votes from two-thirds of the members is required. Where the decision is required
to be adopted by the Council by a qualified majority the qualified majority must also
represent at least 62 per cent of the total population of the Union.
63 See Title I, article 4 of the Treaty on European Union (Consolidated Version).
64 See e.g. Weatherill and Beaumont, EU Law, pp. 45 ff.

INTERNATIONAL INSTITUTIONS

1177

for their individual competence, who act independently of government
c o n t ~ - 0 1The
. ~ ~ President is chosen by the European Council after consultations with the Parliament, while the other members of the Commission
are nominated by the member states in consultation with the President.
The full Commission has to be approved by the Parliament. The Commission, situated in Brussels, operates by majority vote and constitutes
the bureaucratic machinery of the Community, having a staff of some
15,000. It is divided into twenty-six directorates-general and a numberof additional specialised services. The Commission originates legislative
proposals which are then sent to the Council and the Parliament. In addition, it acts as an enforcing mechanism of Community law. States thatbreach European law will face Commission action, which may include
recourse to the European Court of Justice, while in some cases, the Commission may impose fines upon individuals and organisations for violations of European law. The Commission manages the annual budget of
the Union and acts as the trade negotiator of the Union. The Commission has certain decision-making powers, in addition to its ability to issue
opinions which are solely persuasive, that are binding upon the citizens
and institutions of the member states. The Commission can, and does,
make decisions which are legally binding upon the recipients, without
the need for national legislation to incorporate them into domestic legal
systems. This supranational characteristic is what distinguishes the Union
from other regional institutions. It involves a restriction by states upon
their legislative exclusivity and permits Union institutions to issue orders
directly affecting Union citizens in certain cases, irrespective of national
parliamentary activity.
The Court of Justice of the European C ~ m m u n i t i e sconsists~~of fifteen judges,67each appointed for a renewable six-year term. The Court
is assisted by eight advocates-general, whose role is to make reasoned
submissions on cases before the Court, without taking part in the judgment. The Court applies Community law, a composition of the relevant
TWOeach come from France, Germany, Italy, the UK and Spain and one each from theother member states. The Treaty of Nice, Enlargement Protocol, article 4, provides that asfrom 1 January 2005, the Commission shall include one national from each member state,
and when the Union consists of twenty-seven members, that the number of members of
the Commission will be less than the number of member states and will be chosen on arotation basis to be agreed by the Council acting unanimously.
66 See e.g. L. N. Brown and T. Kennedy, The Court of Justice of the European Communities,
5th edn, London, 2000, and Weatherill and Beaumont, EU Law, pp. 173 ff.
67 1.e. one judge from each of the member states. See also articles 220-45 of the EC Treaty(Consolidated Version).

1178

I N T E R N A T I O N A L LAW

treaties, Commission regulations, previous case-law of the Court andgeneral principles of member states' municipal law, and performs various
functions connected with the European Communities. The Court has a~ ~ has established the principle that EEC law
complicated j u r i s d i c t i ~ nandprevails over national law.69It has so far dealt primarily with issues connected with farm policy, common tariffs, monopolies, patent rights andsocial security rights of migrant workers. Its major importance has to all
intents and purposes been to act as the most proactive and 'federal' element in the structure of the Union. The Court may sit in plenary session
when a member state or a community institution that is a party to theproceedings so requests, or in particularly complex or important cases.
Otherwise cases are heard by a chamber of three or five judges. The Single
European Act provided for the creation of a new Court of First Instancein order to hear cases concerning disputes between the community andits employees, competition law issues and certain other minor matters.
This Court commenced operations on 1 September 1989. It is composedof fifteen judges appointed for renewable terms of six years and there areno advocates-general."
Major treaty reforms are under currently under consideration and areintended to be agreed in 2004. The European Convention is drafting a new
Constitutional Treaty for the Union to replace the current f r a m e ~ o r k . ~ ~68 The Court, for example, can hear disputes between states (article 227, EC Treaty); andbetween states and the Commission (article 226). It can act as an administrative tribunal
hearing allegations of illegal action or inaction by Community organs (articles 230 ff.)
and as a constitutional court, deciding on the interpretation of the Treaty and Community
legislation at the request of national courts (article 234).
69 See e.g. Costa Y. ENEL [I9641 ECR 858; the Van Gend en Loos case [I9631 ECR 1 andSimmentllal v. Italian Minister of Finance [I9761 ECR 187 and [I9781 ECR 629. Note,in particular, the significant assertion in the Ifan Gend en Loos case that 'the Community constitutes a new legal order of international law for the benefit of wllicl~the states
hap-e limited their sovereign rights, albeit within limited fields, and the subjects of which
comprise not only member states but also their nationals. . . Community law not only imposes obligations upon individuals but is also intended to confer upon them rights whichbecome part of their legal heritage. These rights arise not only where they are expressly
granted by the Treaty, but also by reason of obligations which the Treaty imposes in aclearly defined way', [I9631 ECR 1, 12.
O'
See now articles 224-5 of the EC Treaty (Consolidated Version). Note that under article
225a, the Council acting unanimously on a proposal from the Commission and after
consulting the European Parliament and the Court of Justice or at the request of thec e after consulting the European Parliament and the Comn~issionmay
Court of J ~ ~ s t iandcreate judicial panels to hear and determine at first instance certain classes of action orproceedings brought in specific areas.
See http:lleuropean-convention.eu.ini.This was presented on 12 rune 2003, CON V
79711103. Rev. 1.

INTERNATIONAL INSTITUTIONS

1179

The Organisation for Security and Co-operationin Europe ( O S C E ) ~ ~The Organisation was originally created in 1975 following the Helsinki
Conference of European powers (plus the US and Canada). The Helsinki
Final Act laid down a series of basic principles of behaviour among theparticipating states, including sovereign equality; prohibition ofthe threator use of force; inviolability of frontiers; territorial integrity of states;
peaceful settlement of disputes; non-intervention in internal affairs andrespect for human rights. The Final Act was not a binding treaty but apolitical document, concerned with three areas or 'baskets', being security
questions in Europe; co-operation in the fields of economics, science andtechnology, and co-operation in humanitarian fields. The Conference itself (at the time termed the CSCE) was a diplomatic conference with regular follow-up meetings to review the implementation of the Helsinki Final
Act, together with expert meetings on avariety oftopics including humanrights, democratic institutions, the environment and the peaceful settlement of disputes. It was only really after the changes in Eastern Europe in
the late 1980s that the CSCE began to assume a coherent structure.
The Charter of Paris for a New Europe signed in 1990 provided for the
first standing institutions. These were the Conflict Prevention Centre in
Vienna, the Office for Free Elections in Warsaw (now renamed the Officefor Democratic Institutions and Human Rights) and the Secretariat basedin Prague. The Paris Conference also established a system of consultationand decision-making bodies being regular summit meetings of Heads ofState or Government; the Council of Ministers, consisting of the Foreign
Ministers of participating states, and the Committee of Senior Officials todeal with day-to-day business.73In December 1992, the post of Secretary
General was created, while a strengthened Secretariat was established in
Vienna. The Permanent Committee was set up in Vienna in 1993 to assist
in regular decision-making.
Further institutional steps were taken at the Budapest Summit in1994. To complete the transformation of the CSCE, it was renamed the'' See e.g. The CSCE (ed. A. Bloed), Dordrecht, 1993; J. Maresca, To Helsinki - The CSCE
1973-75, Durham, 1987; Essays on Htnnan Rights in the Helsinki Process (eds. A. Bloed
and P. Iran Dijk) 1985; A. Bloed and P. Iran Dijk, The Hurrian Dirnensiori of the Helsinki
Process, Dordrecht, 1991, and D. McGoldrick, 'The Development of the Conference on
Security and Co-operation in Europe - From Process to Institution' in Legul Visions of
the New Europe (eds. B. S. Tacksoil and D. McGoldrick), London, 1993, p. 135. See also
h t t p : / / m ~ . o s c e . o r gandi above, chapters 7, p. 346, and 18, p. 936.
" See OSCE Handbook 19962ild edn, Vienna, 1996, p. 8.

1180

I N T E R N A T I O N A L L AW

Organisation for Security and Co-operation in Europe as from 1 January
1995. The Council of Ministers (now termed the Ministerial Council)
constitutes the central decision-making and governing body of the Organisation, while the Senior Council (formerly the Committee of Senior
Officials) has the function of discussing and setting forth policy and broad
budgetary guidelines. The Permanent Council (formerly the PermanentCommittee) is the regular body for political consultation and decisionmaking and can also be convened for emergency purposes and is composed of the permanent representatives of the participating states meeting in Vienna. There is also a Forum for Security Co-operation whichmeets weekly in Vienna to discuss and make decisions regarding military aspects of security in the OSCE area, in particular confidence- andsecurity-building measures, and the Senior Council/Economic Forumwhich convenes once a year in Prague to focus on economic and environmental factors that affect security in the OSCE area. There is also an Officefor Democratic Institutions and Human Rights, which is responsible forthe promotion of human rights and democracy in the OSCE area.
Overall responsibility for executive action is exercised by the Chairmanin-Office, who is assisted by the Troika (i.e. the present, preceding andsucceeding Chairmen). The High Commissioner on National Minorities~ ~ there exist a variety of personal representawas appointed in 1 9 9 2 andtives of the Chairman-in-Office and ad hoc steering groups in order ton . ~OSCE~
has established a variety ofhelp the work of the O ~ - ~ a n i s a t i oThe
Missions to assist in dispute settlement and has been assigned a role in the
Bosnia peace arrangements." A Parliamentary Assembly was establishedin 1991. In March 1995, the Final Conference on the Pact on Stability
in Europe adopted a Final Declaration, which together with some 100
bilateral and regional co-operation agreements, constitutes an attempt
to mitigate tensions in the region. The Declaration contains a commitment to act against intolerance and discrimination, while the agreements
include those dealing with cross-border co-operation, economic, environmental and minority protection issues. The Pact is supplemented bymeasures to be taken by the European Union and is integrated within
the OSCE system. It has been agreed that in the event of difficulties overobservance of the agreements, the states participating in the Pact would
rely on existing OSCE institutions and procedures for settling disputes
74 See further above, chapter 7, p. 350.
j'

See e.g. Decisions of the Budapest Summit, 34 ILM 1995, pp. 773 ff.

76 See further above, chapter 18, p. 937.

INTERNATIONAL INSTITUTIONS

1181

peacefully, including the Court of Conciliation and A r b i t r a t i ~ nThere.~~are currently fifty-five participating states in the organisation.
The Commonwealth of Independent States
The Commonwealth of Independent States was established by an Agreement signed by Russia, Belarus and Ukraine in Minsk on 8 December
1991, to which eight other former Republics of the USSR adhered at
Alma Ata on 21 December that year. Georgia joined in 1993, so that theorganisation now comprises all the former Soviet Republics apart fromthe three Baltic States. The Organisation is based on respect for the territorial integrity of member states and upon co-operation particularly insafeguarding international peace and security and implementing effective
measures for the reduction of armaments. The member states of the CIS
agreed to maintain and retain under joint command, a common military and strategic space, including joint control over nuclear weapons.
It was also agreed to establish common co-ordinating institutions embracing the co-ordination of foreign policy and economic, transport andcommunications systems co-operation.78 The CIS adopted a Charter in
Minsk in January 1 9 9 3 . ~Under~
this Charter, the Commonwealth is expressed to be based on the sovereign equality of its members, who are
independent subjects of international law. It is expressly stated that the
CIS is not a state nor does it possess supranational powers.80The supremeorgan is the Council of Heads of State, which is to 'discuss and solve allquestions of principle in connection with member states' activities in thesphere of their common intere~ts'.~'The Council of Heads of Government is to co-ordinate the operation of member states' executive organsin spheres of common interest^.'^ Decisions of both Councils are to beachieved by common ons sent.'^ The Council of Ministers of Foreign Affairs is to co-ordinate the foreign policy activities of member states, while
the Co-ordinating-Consultative Committee is the permanently operating
executive and co-ordinating organ of the CIS.'^ In addition, a Council of
Ministers of Defence (with a United Military Forces Headquarters) and aCouncil of Commanders of Border Troops were provided for," together' ~ 1993,
with an Economic Court and a Commission on Human ~ i g h t s . In
the leaders ofthe CIS states, apart from Ukraine and Turkmenistan, signed
77

Ibid.

78 See articles 5 , 6 and 7 of the Minsk Agreement, 31 ILM, 1992, pp. 143 ff.

"

7"ee
4 Finnish YIL, 1993, p. 263.
See article 1.
" Article 21.
8"rticles
27 and 28.
Articles 30 and 31.
Article 22.
Article 23.
86 Articles 32 and 33.

1182

I N T E R N A T I O N A L LAW

a treaty to create an Economic Union, while in 1995, seven of the twelve
member states signed an agreement for the Defence of the CIS External Borders. A large number of agreements have been signed between
member states 011 a variety of subjects, including prevention of drug
smuggling and terrorism, but many of these agreements have not been
ratified.x7

The American Continent 88
The Organisation of American States emerged after the Second World
War and built upon the work already done by the Pan-American Unionand the various inter-American Conferences since 1890. It consists of two
basic treaties: the 1947 Inter-American Treaty of Reciprocal Assistance(the Rio Treaty), which is a collective self-defence system, and the 1948
Pact of Bogota, which is the original Charter of the OAS and which wasamended in 1967 by the Buenos Aires Protocol, in 1985 by the Cartagena
de Indias Protocol and by the 1992 Washington Protocol and the 1993
Managua Protocol. There are currently thirty-five member states. The
OAS is a collective security system, an attack on one being deemed an attack on all. The organisation consists of a General Assembly, the supremeorgan, which is a plenary organ with wide terms of reference; meetings ofconsultation of Ministers of Foreign Affairs, which exercise broad powers; a Permanent Council which performs both secretarial supervisionand political function^,'^ subject to the authority of the aforementioned
institutions and a number of subsidiary organs. The organisation has
adopted a Human Rights onv vent ion^^ and is the most developed of theregional organisations outside Europe, but without any of the supranational powers possessed by the European ~ n i o n . ~ ''' See Prospects for the Cornrnonwealth of Independent States, a Foreign Office Background
Brief, 1995.
88 See e.g. Bowett's International Institutions, chapter 7; The Organisation ofArnericari States,

The Inter-American System, 1963; A. V. TIT. Thomas and A. J. Thomas, The Orgatzisation uf
American States, 1963; M. Ball, The OAS in Transition, Durham, 1969, and M. Wood, 'The
Organisation of American States', 33 YBWA, 1979, p. 148. See also http://xm+w.oas.orgi.
89 Since 1967, there have also been the Inter-American Economic and Social Council anda Council for Education, Science and Culture. The new Inter-American Committee on
Peaceful Settlement is subordinate to the Permanent Council. There is also a General
Secretariat, based in M'ashington DC, USA.
90 See above, chapter 7, p. 354.
There exist also a number of other American organisations of limited competence: seee.g. Bowett's International Institutions, chapter 7. These include, for example, the InterAmerican Bank ( 1959); the Andean Pact ( 1969); the Caribbean Coinmunity and Common"

INTERNATIONAL INSTITUTIONS

1183

The Arab League 92
The Arab League was created in 1944 and has broad aims. It provides auseful forum for the formulation of Arab politics and encourages regional
co-operation. The Council of the League is the supreme organ and performs a useful conciliatory role and various subsidiary organs dealing witheconomic, cultural and social issues have been set up. Its headquarters are
in Tunisia, having been moved there from Egypt after the Israel-Egypt
Peace Treaty of 1979. There is also a permanent secretariat and a SecretaryGeneral. The Council of the League has been involved in the peacekeeping
operations in Kuwait in 196 1, where an Inter-Arab Force was establishedto deter Iraqi threats, and in Lebanon in 1976 as an umbrella for the operations of the Syrian troops.93It played no meaningful part in the Gulf
wars and crises from 1980 to 2 0 0 3 . ~ ~Africa 95
The Organisation of African Unity was established in 1963 in Ethiopia.
Its supreme organ was the Assembly of Heads of State and Government,a plenary body meeting annually or in extraordinary session. It createda series of specialised commissions dealing with economic, health, defence, educational and scientific matters amongst others. There was alsoa Liberation Committee based in Dar es Salaam and created to assist thelMarket or CARICOM (1973); the Latin American Integration Association (1980); theSouthern Cone CommonMarket or MERCOSUR (1991) and the Association of Caribbean
States (1994).
92
See e.g. Bowett's International Institutions, p. 237, and R. W. MacDonald, The League ofArab States, Princeton, 1965. See also B. Boutros-Ghali, 'La L i p e des Etats Arabes', 137 HR,
1972, p. 1, and H. A. Hassouna, The League ofArab States, Dobbs Ferry, 1975. Note also theexistence of the Organisation of Petroleum Exporting Countries, founded in 1960, whichobtained the power to fix crude oil prices in 1973: see e.g. I. Seymour, OPEC, Instrumentof Change, London, 1980, and I. Skeet, OPEC: Euenty-five Years of Prices and Politics,
Cambridge, 1988. See also http://nwv.arableagueonline.org/arableague/index~en.jsp.
" See e.g. Bowett's International Institutions, p. 238, and G. Feuer, 'Le Force Arabe de Securite
au Liban', 22 AFDI, 1976,p. 51. See also above, chapter 18, p. 935.
" Note also the existence of the Gulf Co-operation Council: see Bowett's hzternational Institutions, p. 240.
" See e.g. Bowett's International Ir~stitutions,p. 243; 2. Cervenka, The Organisatior~ofAfrican
Ur~ityand Its Charter, London, 1969, and The Urifinished Questfor LTnity,London, 1977;
B. Andemicael, The OAUand the UN,
London, 1976; M . MTolfers, Politics in the Organisatior~ofAfrican Unity, London, 1976; C. A. A. Packer and D. Rukare, 'The New African Unionand Its Constitutive Act: 96 ATIL, 2002, p. 365, and K. D. Magliveras and G. J. Naldi, 'The
African Union - A New Dawn for Africa?', 51 ICLQ, 2002, p. 415. See also above, chapter
18, p. 930, and http://wcvcv.africa-unioi~~orgi.

1184

I N T E R N A T I O N A L LAW

various liberation organisations. The Council of Ministers met before theAssembly and prepared the way for it, while the secretariat performed theusual tasks.
The African Union was established in 2001. The Constitutive Act of theUnion lists a series of objectives in article 3 and these include the achievingof greater unity between African countries; defending the sovereignty, territorial integrity and independence of its member states; accelerating the
integration of the continent; promoting and defending African common
positions on issues of interest to the continent and its peoples; encouraging international co-operation, taking due account of the Charter of
the United Nations and the Universal Declaration of Human Rights; thepromotion of peace, security, and stability on the continent and of humanand peoples' rights in accordance with the African Charter on Human andPeoples' Rights and other relevant human rights instruments; the promotion of sustainable development and research in all fields, in particular inscience and technology.
Article 4 of the Constitutive Act sets out the Principles of the Union andthese include the sovereign equality and interdependence among member states of the Union; respect of borders existing on achievement of
independence; establishment of a common defence policy for the African
continent; peaceful resolution of conflicts among member states of theUnion through such appropriate means as may be decided upon by the
Assembly and the prohibition of the use of force or threat to use force
among member states of the Union. Interestingly, in addition to the emphasis on territorial integrity, the Principles also provide for the right of
the Union to intervene in a member state pursuant to a decision of theAssembly in respect of grave circumstances, namely war crimes, genocideand crimes against humanity, and the right of member states to request
intervention from the Union in order to restore peace and security. Also
included are respect for democratic principles, human rights, the rule oflaw and good governance; respect for the sanctity of human life, condemnation and rejection of impunity and political assassination, acts ofterrorism and subversive activities and condemnation and rejection of
unconstitutional changes of governments. The organs of the Union include an Assembly, the supreme organ of the Union, composed of headsof state or government or their representatives, which sets the common
policy of the Union; an Executive Council, composed of foreign or otherministers, which co-ordinates and takes decisions on policies in areas ofcommon interest to the member states, such as foreign trade, water resources and energy; the Pan-African Parliament and the Court of Justice,INTERNATIONAL INSTITUTIONS

1185

the jurisdiction of which comprises the application and interpretation of
the Act. There are also a number of other organs. Apart from the Assembly,
which existed in the OAU, all of the organs are new.96
Eastern Europe
There existed a number of important institutions in Eastern Europe, suchas the Warsaw Pact, which mirrored the NATO alliance, and Comecon(the Council for Mutual Economic
The process, however, neverwent as far as in Western Europe and, with the collapse ofthe Soviet system
of Eastern Europe, these institutions disintegrated.98
Asia
The Association of South East Asian Nations (ASEAN) was created in
1 9 6 7 . It~~
possesses both economic and political aims and groups together
Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines,
Singapore, Thailand andVietnam. It operates on the basis of annual ministerial meetings serviced by a Standing Committee and a series of permanent committees covering areas such as science and technology, shippingand commerce. In 1976 three agreements were signed: a Treaty of Amity
and Co-operation; which reaffirmed the parties' commitment to peaceand dealt with the peaceful settlement of disputes; the Declaration of
ASEAN Concord, which called for increased political and economic coordination and co-operation; and the Agreement of Establishment of thePermanent Secretariat to co-ordinate the five national secretariats established under the 1967 ASEAN Declaration. The Secretariat was further
strengthened in 1992. In 1987, the Protocol amending the Treaty ofAmity
was signed under which countries outside the ASEAN region could accede to the treaty. A number of economic agreements have also beensigned, ranging from the Manila Declaration of 1987 to the Framework
Agreement on Enhancing ASEAN Economic Co-operation 1992 and the
96 AS to the peaceful settlement mechanisms and as to other African orpanisations, see above,

chapter 18, p. 932.
97 See e.g. R. Szawlowski, The Systeiil of Interrlational Organisations of the Communist Cotrn-

tries, Leiden, 1976.
98 See e.g. Keesing's Record of MbrldEvents, p. 37979 (1991).

" See e.g. Boivett's International Institutions, p. 228. See also T. It'. Allen, The ASEANReport,
Washington, 2 vols., 1979, and UnderstandingASEAN (ed. A. Broinowski), London, 1982.
See also http://~w.aseansec.orgi.

1186

I N T E R N A T I O N A L L AW

decision to establish an ASEAN Free Trade Area within fifteen years utilising a Common Effective Preferential Tariff scheme.
The highest authority in ASEAN is the Meeting of Heads of Government, while a variety of Ministerial Meetings also take place, including
those of Foreign Ministers and Economic Ministers.
There is a Secretary General, responsible to the Heads of Government
meetings and to meetings of ASEAN ministers, and a Standing Committee, which acts as the policy arm and organ of co-ordination between Ministerial Meetings of Foreign Ministers. An ASEAN Regional
Forum was established in 1994 and consists of ASEAN members plus
a further thirteen states interested in stability and development in theregion.

Some legal aspects of international organisations loo
There is no doubt that the contribution to international law generally
made by the increasing number and variety of international organisations
is marked. In many fields, the practice of international organisations has
had an important effect and one that is often not sufficiently appreciated.
In addition, state practice within such organisations is an increasingly
significant element within the general process of customary law formation. This is particularly true with regard to the United Nations, with its
universality of membership and extensive field of activity and interest,
although not all such practice will be capable of transmission into customary law, and particular care will have to be exercised with regard to
the opinio juris, or binding criterion.lOl
As well as the impact of the practice ofinternational organisations uponinternational law, it is worth noting the importance of international legal
norms within the operations of such organisations. The norms in question guide the work and development of international institutions andloo

See e.g. Amerasinghe, Principles; Schermers and Blokker, Irzterrzational Iftstitutional Law;
Bowett's International Institutions, part 3; Klabbers, Introduction; A. Reinisch, blternational Organisatioizs Before Natiorzal Cotrrts, Cambridge, 2000; I . Brownlie, Priizciples of
Public International Law, 5th edn, Oxford, 1998, chapter 30 and Reuter, blterilational
Irtstitutions, pp. 227-64. See also E. Lauterpacht, 'Development' and 'The Legal Effectsof Illegal Acts of International Organisations' in Carrtbridge Essays in International Law,
Cambridge, 1965, p. 98; K . Skubiszewski, 'Enactment of Law by International Organisations: 4 BYIL, 1965-6, p. 198; ll'hiteman, Digest, rol. XIII, 1968; R. Higgins, The
Development of International Law Through the Political Organs of the United Nations,

Oxford, 1963, and generally other sources cited in footnote 1 above.
lo' See above, chapter 3, p. 80.

INTERNATIONAL INSTITUTIONS

1187

may act to correct illegal acts.'02 Questions dealing with the interpretation of treaties are particularlyrelevant in this context, since internationalorganisations are grounded upon treaties that are also constituent instruments, but issues relating to the scope of powers and especially implied
powers are also of crucial importance. Nevertheless, a two-way process oflegal development is involved.

Personality lo'
The role of international organisations in the world order centres on theirpossession of international legal personality. Once this is established, they
become subjects of international law and thus capable of enforcing rights
and duties upon the international plane as distinct from operating merely
within the confines of separate inunicipal jurisdictions. Not all arrangements by which two or more states co-operate will necessarily establish
separate legal personality. The International Court of Justice in Nauru
v. ~ u s t r a l i a , "noted~that the arrangements under which Australia, New
Zealand and the UK became the joint 'Administering Authority' for Nauru
in the Trusteeship Agreement approved by the UN in 1947 did not establish
a separate international legal personality distinct from that of the states.
The question of personality will in the first instance depend upon theterms of the instrument establishing the organisation. If states wish theorganisation to be endowed specifically with international personality,
this will appear in the constituent treaty and will be determinative of the

See e.g. the IMCO case, ICJ Reports, 1960, p. 150; 30 ILR, p. 426; the Conditions of
Admission of a State to the L'nited Nations case, ICJ Reports, 1948, p. 57; 15 AD, p. 333;
and the Certain Expenses of the United Nations case, ICJ Reports, 1962, p. 151; 34 ILR, p.
281. See also E. Lauterpacht, 'Development: pp. 388-95.
1°"eee.g. H. Thirlway, 'The Law and Procedure of the International Court of Justice,
1960-1989 (Part Eight): 67 BYIL, 1996, p. 1; Klabbers, Ifltroduction, chapter 3; Bowett's
International Institutions, chapter 15; Amerasinghe, Principles, chapter 3; Schermers andBlokker, International Institutional Law, chapter 11; C. W. Jenks, 'The Legal Personality ofInternational Organisations', 22 BYIL, 1945, p. 267; M. Rama-Montaldo, 'International
Legal Personality and Implied Powers of International Organisations', 44 BYIL, 1970,
p. 111; M. Ssrensen, 'Principes de Droit International Public: 101 HR, 1960, pp. 1, 127 ff.;
H. Barberis, 'Nouvelles Questions Concernant la Personalite ruridique Internationale: 179
HR, 1983, p. 145; F. Seyersted, 'Objective International Personality of Intergovernmental
Organisations: 34 Nordisk Tidskriftfor International Ret, 1964, p. 1, and C. Ijalaye, The
Extension ofcorporate Personality in International Law, Dobbs Ferry, 1978. See also above,
chapter 5, p. 241.
lo4 ICJ Reports, 1992, pp. 240,258; 97 ILR, pp. 1,25.

lo'

1188

I N T E R N A T I O N A L L AW

issue.lO' But this actually occurs in only a minority of cases. However,personality on the international plane may be inferred from the powers
or purposes of the organisation and its practice.lo6This is the more usual
situation and one authoritatively discussed and settled (at least as far as theUN was concerned directly) by the International Court in the Reparation
for Injuries Sufered in the Service ofthe United Nations case.lo7The Court
held that the UN had international legal personality because this wasindispensable in order to achieve the purposes and principles specified
in the Charter. In other words, it was a necessary inference from thefunctions and rights the organisation was exercising and enjoying. The
Court emphasised that it had to be:
acknowledged that its [i.e. UN's] members, by entrusting certain functions to it, with the attendant duties and responsibilities, have clothed itwith the competence required to enable those functions to be effectively
discharged.lo8

The possession of international personality meant that the organisation
was a subject of international law and capable of having internationalrights and duties and of enforcing them by bringing international claims.
In reaching this conclusion, the Court examined the United Nations
Charter and subsequent relevant treaties and practice to determine theconstitutional nature of the United Nations and the extent of its powers
and duties. It noted the obligations of members towards the organisation,
its ability to make international agreements and the provisions of theCharter contained in Articles 104 and 105, whereby the United Nations
was to enjoy such legal capacity, privileges and immunities in the territoryof each member state as were necessary for the fulfilment of its purposes.
The Court emphasised that:
fifty states, representing the vast majority of the members of the intemational community, had the power in conformity with international law, tobring into being an entity possessing objective international personality,and not merely personality recognised by them alone.lo9
See e.g, article 6 of the European Coal and Steel Community Treaty, 1951, and article 210v
281 of the EC Treaty, Consolidated Version). See alsoof the EEC Treaty, 1957 ( n o ~ article
Costa (Flaininio) v. ENEL [I9641 ECR 585.
1°"otealso the approach championed by Seyersted that international organisations become
ipso facto international legal persons where there exists at least one organ with a will distinct from that of the member states: see Seyersted, 'Objective International Personality:
and Schermers and Blokker, International Institutional Law, p. 978.
lo' ICJ Reports, 1949, p. 174; 16 AD, p. 318.
lo* ICJ Reports, 1949, p. 179; 16 AD, p. 322.
lo9 ICJ Reports, 1949, p. 185; 16 AD, p. 330.
lo'

INTERNATIONAL INSTITUTIONS

1189

Accordingly, the Court derived the objective international legal personality of the UN from the intention of the members, either directlyor implicitly. Such personality was objective in the sense that it could bemaintained as against non-members as well, of course, as against members. Objective personality is not dependent upon prior recognition by
the non-member concerned and would seem to flow rather from the nature and functions of the organisation itself. It may be that the numberof states members of the organisation in question is relevant to the issueof objective personality, but it is not determinative.'I0
The attribution of international legal personality to an internationalorganisation is therefore important in establishing that organisation as anentity operating directly upon the international stage rather than obliging
the organisation to function internationally through its member states,
who may number in the tens of dozens or more. The latter situation inevitably leads to considerable complication in the reaching of agreements
as well as causing problems with regard to enforcing the responsibility or
claims of such organisations internationally. The question of the effect ofinternational personality upon the liability of member states for problems
affecting the organisation will be referred to later in this chapter."l However, one needs to be careful not to confuse international with domestic
legal personality. Many constituent instruments of international organisations expressly or impliedly provide that the organisation in question
shall have personality in domestic law so as to enable it, for example, tocontract or acquire or dispose of property or to institute legal proceedingsin the local courts or to have the legal capacity necessary for the exercise
of its function^."^ Article 104 of the United Nations Charter itself provides that the UN 'shall enjoy in the territory of each of its members such
legal capacity as may be necessary for the exercise of its functions and
'I0

"'
'"

See the Third US Restatement of Foreign Relations Law, St Paul, 1987, vol. I, p. 141,
noting that '[aln international organisation with a substantial membership is a person ininternational law even in relationto states not members of the organisation. Ho~vever,astate does not have to recognise the legal personality of an organisatioil of which it is nota member, which has few members, or which is regional in scope in a region to which
the state does not belong.' Cf. Amerasinghe, Prirlciples, p. 86. It should be noted that thequestion of objective personality is not essentially linked to recognition by non-member
states as such. What will, however, be important will be patterns of dealing with suchorganisations by non-member states.
See below, p. 1201.
See e.g, articles IX(2) and VII(2) respectively of the Articles ofAgreement of the International Monetary Fund and the International Bank for Recoilstruction and Development.
See also article 16 ofthe Constitution ofthe Food and Agriculture Organisation, article 6hof the Constitutioil of the World Health Organisation and article 12 of the Constitutionof UNESCO.

1190

I N T E R N A T I O N A L L AW

the fulfilment of its purposes'. Where such provisions exist, it follows thatmember states of the organisation have accepted an obligation to recognise such legal personality within their legal systems. How that may beachieved will vary from state to state and will depend upon the domestic
legal ~ y s t e m . "In~ the UK, for example, becoming a party to a treatywhich
is a constituent instrument of an international organisation does not of
itself incorporate that treaty into English law, so that the further step ofincorporating legislation is required. In other states becoming a party toa treaty is sufficient of itself to incorporate the provisions of the treaty
directly into domestic law."4
The issue also arises at this point as to whether states that are not parties
to the treaty in question and thus not member states of the particularinternational organisation are obliged to recognise the personality of suchorganisation. This can be achieved either directly, by entering into anagreement with the organisation - a headquarters agreement permitting
the establishment ofthe organisation within the jurisdiction is the obvious
example"5 - or indirectly by virtue of the rules of private internationallaw (or conflict of laws). By virtue of this approach, adopted in most legal
systems, a domestic court will determine the legal status and capacity ofa legal person by reference to the applicable or proper law, which will in
the case of international organisations be international law. Thus if theorganisation had personality under international law, this would sufficeto establish personality under domestic law.'16
However, in the UK, the approach has been rather different.'" TheInternational Organisations Act 1968 grants the legal capacity of a body
corporate to any organisation declared by Order in Council to be anorganisation ofwhich the UK and one or more foreign states are members.
The view taken by the House of Lords in the Tin case118was that the'

See also e.g. article 282 of the EC Treaty (Consolidated Version) and Klabbers, Introdnction, p. 49.
11' See e.g. Re Poricet, 15 AD, p. 346.
See generally above, chapter 4.
See e.g. Iizterizational Tin Council v. Arrlalganlet Iizc. 524 NYS 2d 971 (1988). See also
U N M 4 v. Daan 16 AD, p. 337 and Branrio v. Ministry o f War, 22 ILR, p. 756.
See e.g. J. W. Bridge, 'The United Nations and English Law', 18 ICLQ, 1969, p. 689;
G. Marston, 'The Origin of the Personality of International Organisations in United
Kingdom Law', 40 ICLQ, 1991, p. 403, and F. A. Mann, 'International Organisations as
National Corporations: 107 LQR, 1991, p. 357. See also R. Higgins, Report on the 'Legal
Consequences for Member States of the Non-Fulfilment by International Organisationsof their Obligations toward Third States: Annuaire de l'lnstitut de Droit International,
1995 I, p. 249.
'I8 J. H.Rayner (MincingLane) Ltd v. Department of Trade and Industry [I9891 3 WLR 969,
982 and 1004 ff.; 81 ILR, pp. 670, 678 and 703 ff.
I'INTERNATIONAL INSTITUTIONS

1191

legal effect of the Order in Council of 1972 concerning the International
Tin Council (ITC) was to create the ITC as a legal person separate anddistinct from its members, since 'as an international legal persona [it]~ other words,
had no status under the laws of the United ~ i n g d o m ' . " Inwithout such legislative action, an international organisation would haveno legal existence in the UK. There is an exception to this strict approachand that is where the organisation has been granted legal personality inanother country. The case of Arab Monetary Fund v. Hashim (No. 3)120
concerned the attempt by the AMF to bring an action before the English
courts to recover funds allegedly embezzled. The relevant constituent
treaty of 1976 between a number ofArab states gave the AMF 'independent
juridical personality' and a decree was adopted in Abu Dhabi giving theorganisation independent legal status and the capacity to sue and be suedin United Arab Emirates law. There was, however, no Order in Council
under the International Organisations Act 1968 giving the AMF legal
personality within the UK. The Court of Appeal took the view that thedecision of the House of Lords in the Tin casel2l meant that the ordinary
conflict of laws rules allowing recognition of an entity created under
foreign law could not be applied to an organisation established underinternational law, since this would apparently circumvent the principlethat an international organisation with legal personality created outside
the jurisdiction would not have capacity to sue in England without arelevant authorising Order in
The House of Lords, however, by a majority of four to one, expressed
the opinion that the majority of the Court of Appeal had felt inhibitedby observations made in the Tin cases and that the latter cases had notaffected the principles that the recognition of a foreign state was a matterfor the Crown and that if a foreign state is recognised by the Crown, thecourts of the UK would recognise the corporate bodies created by thatstate. The House of Lords noted that the UK courts could indeed recognise
an international organisation as a separate entity by comity provided thatthe entity was created by one or more of the member states.123'Iy[1989] 3 TYLR 1008; 81 ILR, p. 708 (per Lord Oliver). But see Lord Templeman in Arab

Monetary Fund v. Hashim (No. 3) [I9911 2 SIrLR 729, 738; 85 ILR, pp. 1, 11, who notedthat no argument based o n incorporation by one or more foreign states had been relevant
or canvassed in the Tin case.
12' [I9911 2 WLR 729; 85 ILR, p. 1.
12' [I9891 3 WLR 969; 81 ILR, p. 670.
12' [I9901 All ER 769, 775 (Donaldson MR); 83 ILR, pp. 259-61 and 778 (Nourse LJ); 83
ILR, p. 264.
12' [I9911 2 WLR 738-9; 85 ILR, pp. 12-13.

1192

I N T E R N A T I O N A L LAW

In other words, in the UK, an international organisation can be recognised as having personality by one of several methods: first, where Parliament has by legislation incorporated an international treaty establishing'~~where the executive expresslyrecognises
such an ~ r g a n i s a t i o n ;secondly,
an international ~ r g a n i s a t i o n ;thirdly,' ~ ~ where an Order in Council under the International Organisations Act so provides; and fourthly, where
the courts by virtue of comity recognise an international organisation thathas personality in one or more of the member states.'26 It is an approachthat is not without some difficulty, not least because of the implicationthat an international organisation not the subject of a UK Order in Council and not incorporated in the domestic law of member states may not berecognised as having personality in the UK, even though there exists aninternational treaty establishing such an international organisation withinternational personality.
To state that an international organisation has international personality does not dispose of the question of what such personality entails. The
attribution of international personality to an organisation endows it witha separate identity, distinct from its constituent elements. Whereas states
are recognised as possessing the widest range of rights and duties, thoseof international organisations are clearly circumscribed in terms of express powers laid down in the constituent instruments or implied powers
necessarily derived therefrom or otherwise evolved through practice.'27
The International Court emphasised that the attribution of international
personality to the UN, for example, was not the same thing as declaring
the UN to be a state nor that its legal personality and rights and duties
were the same as those of a state. By the same token it did not mean that
the UN was a 'super-state'.'18 The Court declared that UN personality
involved the competence to possess and maintain rights and the capacity
to enforce them on the international stage.'" Accordingly, whereas states
would possess the totality of international rights and duties recognised
by international law, 'the rights and duties of an entity such as the [UN]Organisation must depend upon its purposes and functions as specified
See [ 199 11 2 WLR 738; 85 ILR, p. 12, giving the example ofthe Bretton Woods Agreements
Act 1945.
lZ5 Ibid.
126 Ibid.
12' The Court in the Reparations case took particular care to emphasise that possession ofinternational personality was far from an ascription of statehood or recognition of equal
rights and duties, ICJ Reports, 1949, p. 185; 16 AD, p. 330.
12' ICJ Reports, 1949, p. 179; 16 AD, p. 322. See also the WHOcase, ICT Reports, 1980, pp. 73,
89; 62 ILR, pp. 450, 473.
""CJ
Reports, 1949, p. 179.

INTERNATIONAL INSTITUTIONS

1193

or implied in its constituent documents and developed in practice'.l3'
Precisely which powers and capacities are involved will in reality therefore depend upon a careful analysis of the organisation itself, including
the relationship of such powers and capacities to the stated purposes andduties of that organisation.
The constituent instruments l 3 'International organisations are expressly created by states by formal decision as laid down in constituent instruments. The very nature, status andauthority of such organisations will therefore depend primarily upon theterms of the constituent instruments or constitutions under which they
are established. Such instruments have a dual provenance. They constitute multilateral treaties, since they are binding agreements entered intoby states parties, and as such fall within the framework ofthe internationallaw of treaties.132But such agreements are multilateral treaties possessing
a special character since they are also methods of creation of new subjects of international law. This dual nature has an impact most clearly inthe realm of interpretation of the basic documents of the 0 r g a n i ~ a t i o n . l ~ ~This was clearly brought out in the Advisory Opinion of the International
Court of Justice (requested by the World Health Organisation) in the Legality of the Use by a State ofNz~clearWeapons in Armed Conflict case. The
Court declared that:[tlhe constituent instruments of international organisations are also
treaties of a particular type; their object is to create new subjects of law
endowed with a certain autonomy, to which the parties entrust the task ofrealising common goals. Such treaties can raise specific problems of interpretation owing, inter alia, to their character which is conventional and at
the same time institutional; the very nature of the organisation created, the"'Jbid., p. 180.
12'

''I
l''

See e.g. Amerasinghe, Principles, chapter 2; Schermers and Blokker, Jnternational Jizstittltiorla1 Law, pp. 710 ff., and E. P. Hexner, 'Interpretation by International Organisationsof their Basic Instruments: 53 AJIL, 1959, p. 341.
As to which see above, chapter 16.
See C. F. Amerasinghe, 'Interpretation of Texts in Open International Organisations: 65
BYIL, 1994, p. 175; M. N. Shaw, Title to Territory in Africa: Irlterrlatiorial Legal Issues, Oxford, 1986, pp. 64-73; S. Rosenne, 'Is the Constitution of an International Organisationan International Treaty?', 12 Communicazioni e Studi, 1966, p. 21, and G. Distefano, 'La
Pratique Subsequente des Etats Parties a un Traite', AFDI, 1994, p. 41. See also H. Lauterpacht, The Development of International Law by the International Court, London, 1958,
pp. 267-81, and E. Lauterpacht, 'Development', pp. 414 ff.

1194

I N T E R N A T I O N A L LAW

objectives which have been assigned t o it by its founder, the imperatives
associated with the effective performance of its functions, as well as its own
practice, are all elements which may deserve special attention when thetime comes to interpret these constituent treaties.13"

Accordingly, one needs to consider the special nature of the constituent
instruments as forming not only multilateral agreements but also constitutional documents subject to constant practice, and thus interpretation,
both of the institution itself and of member states and others in relation
to it. This of necessity argues for a more flexible or purpose-orientatedmethod of interpretation. It is in fact the element of constant practiceoccurring in an institutional context that really differentiates the interpretation of constitutions from that of ordinary multilateral treaties, although this may be a matter more of degree than of essence depending
upon the identity of the particular agreement.135Subsequent practice is
to be taken into account in interpreting a treaty by virtue of article 31 (3)bof the Vienna Convention on the Law of Treaties, 1 9 6 9 , ~and~ ~this has
sometimes proved crucial in interpreting constituent instruments.13' In
addition, the provision in article 31(1) of the Convention that a treaty is
to be interpreted in the light of its object and purpose has permitted theapplication of the principle of effectiveness. This is of particular importance in the case of international organisations since such organisations,being in a state of constant and varying activity, need to be able to operate
effectively, and this therefore militates towards a more flexible approach
to interpretation.13"
However, one must be careful not to take this too far and ascribe
far-reaching powers to international organisations upon the basis of an
exaggerated application of the principle of effectiveness, since this will
' j 4 ICJ Reports, 1996, pp. 66, 74-5.
""Thus,for example, one would expect the comprehensive 1982 Convention on the Law of
the Sea to generate substantial practice, including institutional practice via the International Seabed Authority, now that it is in force: see further above, chapter l l .
'j6 Note that by virtue of article 5 of the I'ienna Convention on the Law of Treaties, 1969, thisConvention applies to any treaty which is the constituent instrument of an internationalorganisation and to any treaty adopted within an international organisation, without
prejudice to any relevant rules of the organisation.
"'See e.g. the Corupetence of the General Asserrtbly for the Adrr~issionof a State to the United
Nations case, ICJ Reports, 1950, pp. 4, 9; 17 ILR, pp. 326, 329; the Namibia case, ICT
Reports, 1971, pp. 17, 22; 49 ILR, pp. 2, 12, and the IMCO case, ICJ Reports, 1960,
pp. 150, 167-8; 30 ILR, pp. 426,439-41.
138 See E. Lauterpacht, 'Development', pp. 420 ff.

INTERNATIONAL INSTITUTIONS

1195

inevitably lead to conflict with member states and third parties, as well as
undermining the internationally recognised nature and scope of international organisations.

The powers of international institutions
International organisations are unlike states that possess a general competence as subjects of international law. 140 They are governed by the principleof speciality, so that, as the International Court has noted, 'they are invested by the states which create them with powers, the limits ofwhich area function of the common interests whose promotion those states entrust
to them'.'" Such powers may be expressly laid down in the constituent
instruments or may arise subsidiarily as implied powers,'42 being thosedeemed necessary for fulfilment of the functions of the particular organisation. The test of validity for such powers has been variously expressed.
The International Court noted in the Reparations case that:'43[ulnder international law the organisation must be deemed to have thosepowers which, though not expressly provided in the charter, are conferred
upon it by necessary implication as being essential to the performance ofits duties.144
See e.g. Klabbers, Introduction, chapter 4; E. Lauterpacht, 'Development: pp. 42374; Amerasinghe, Principles, pp. 100 ff.; Rama-Montaldo, 'Legal Personality'; A. I. L.
Campbell, 'The Limits of Powers of International Organisations', 32 ICLQ, 1983, p. 523;
K. Skubiszewski, 'Implied Powers of International Organisations' in blternational Law at'. Dinstein), Dordrecht, 1989, p, 855, and Kirgis, Ir~terr~ationala Tirne ofperplexity (ed. 1
Organisations, chapter 3.
14' See the Advisory Opinion of the International Court on the Legality of the Use by a Stateof Nuclear M'eapons in Armed Conflict brought by the J\'orld Health Organisation, ICJ
Reports, 1996, pp. 66, 78-9.
Ibid. The Court here cited the Permanent Court's Advisory Opinion in the Jurisdictionof the European Cornmission of the Danube, PCIJ, Series B, No. 14, p. 64, which noted
that, 'As the European Commission is not a state, but an international institution with a
special purpose, it only has the functions bestowed upon it by the Definitive Statute witha view to the fulfilment of that purpose, but it has power to exercise those functions totheir full extent, in so far as the Statute does not impose restrictions upon it.'
14' See Schermers and Blokker, International Institutional Law, pp. 158 ff.
143 ICJ Reports, 1949, pp. 174, 182; 16 AD, pp. 318, 326.
'" This passage was cited in the Legality o f the Use by a State of Nuclear Weapons case, ICr
Reports, 1996, pp. 66, 78-9. Compare also the approach adopted by the International
Court in the Reparatiorls case with that adopted by Judge Hackworth in his Dissenting
Opinion in that case, ICJ Reports, 1949, pp. 196-8; 16 AD, pp. 318, 328. See also G. G.
Fitzmaurice, 'The Law and Procedure of the International Court of rustice: International
Organisations and Tribunals: 29 BYIL, 1952, p. 1.

1196

I N T E R N A T I O N A L L AW

In the Effect ofAwards of Compensation Made by the UNAdministrative
Tribunal case,'" the Court held that the General Assembly could validly
establish an administrative tribunal in the absence of an express power
since the capacity to do this arose 'by necessary intendment' out of theCharter, while in the Certain Expenses of the case,'" the Court declaredthat 'when the organisation takes action which warrants the assertion that
it was appropriate for the fulfilment of one of the stated purposes of theUnited Nations, the presumption is that such action is not ultra vires theorganisation'. The tests posited therefore have ranged from powers arisingby 'necessary implication as being essential to the performance' of constitutionally laid down duties, to those arising 'by necessary intendment'out of the constituent instrument, to those deemed 'appropriate for thefulfilment' of constitutionally authorised purposes of the organisation.
There are clearly variations of emphasis in such formulation^.^^' Nevertheless, although the functional test is determinative, it operates within
the framework of those powers expressly conferred by the constitution of
the organisation. Thus any attempt to infer a power that was inconsistent
with an express power would fail, although there is clearly an area of ambiguity here.148In the Legality of the Use by a State of Nuclear Weaponscase,149the Court noted that the World Health Organisation had underarticle 2 of its Constitution adopted in 1946 the competence 'to deal withthe effects on health of the use of nuclear weapons, or any other hazardous
activity, and to take preventive measures aimed at protecting the healthof populations in the event of such weapons being used or such activities
engaged in'.150 However, the Court concluded that the question asked ofit related not to the effects of the use of nuclear weapons on health, but
to the legality of the use of such weapons in view of their health andenvironmental effects. Whatever those effects might be, the competenceof the WHO to deal with them was not dependent upon the legality of
the acts that caused them. Accordingly, the Court concluded that in thelight of the constitution of the WHO as properly interpreted, the organisation had not been granted the competence to address the legality of theuse of nuclear weapons and that therefore the competence to request an'" ICJ Reports, 1954, pp. 47,56-7; 21 ILR, pp. 310,317-18.
ICJ Reports, 1962, P ~ I151, 168; 34 ILR, pp. 281, 297.
'" See also the Fedechar case, Case 8155, European Court Reports, 1954-6, p. 299.
'" See also e.g. the International Status of South West Africa case, ICJ Reports, 1950, pp. 128,'46

136-8; 17 ILR, pp. 47, 53; the Expenses case, ICJ Reports, 1962, pp. 151, 167-8; 34 ILR,
pp. 281, 296 and the Namibia case, ICJ Reports, 1971, pp. 1 6 , 4 7 4 ; 49 ILR, pp. 2, 37.
liU Ibid., p. 76.
14"C~ Reports, 1996, pp. 66, 78-9.

INTERNATIONAL INSTITUTIONS

1197

advisory opinion did not exist since the question posed was not one that
could be considered as arising 'within the scope o f . . . activities' of the
WHO as required by article 96(2) of the UN Charter.'"
So far as the International Court itself is concerned, it has held that it
possesses 'an inherent jurisdiction enabling it to take such action as may
be required, on the one hand to ensure that the exercise of its jurisdiction
over the merits, if and when established, shall not be frustrated, and on
the other, to provide for the orderly settlement of all matters in dispute,to ensure the observance of the "inherent limitations on the exercise of
the judicial function" Court, and to "maintain its judicial ~ h a r a c t e r " ' . ' ~ ~Of great importance is the question of the capacity of internationalorganisations to conclude international treatie~."~This will primarily
depend upon the constituent instrument, since the existence of legal personality is on its own probably insufficient to ground the competence toenter into international agreements.'j4 Article 6 ofthe Vienna Convention
on the Law of Treaties between States and International Organisations,1986 provides that '[t] he capacity of an international organisation to conclude treaties is governed by the rules of that organisation'. This is a wider
formulation than reliance solely upon the constituent instrument andpermits recourse to issues of implied powers, interpretation and subsequent practice. It was noted in the commentary of the International Law
Article 96(2) of the UN Charter provides that organs of the UN (apart from the Security
Council and General Assembly) and specialised agencies which may at any time be so
authorised by the General Assembly may request ad?-isoryopinions of the International
Court on 'legal questions arising within the scope of their activities:lS2 The Nuclear Tests case, ICJ Reports, 1974, pp. 253, 259; 57 ILR, p. 398. See the Appeals
Chamber in the Tadit (Jurisdiction)case, 105 ILR, pp. 453,463 ff. See also E. Lauterpacht,"'Partial" Judgments and the Inherent Jurisdiction of the International Court of Justice'in Fifty Years of the International Cotlrt of Justice (eds. V. Lowe and M. Fitzmaurice),
Cambridge, 1996, pp. 465,476 ff.
See e.g. Klabbers, Introdtlction, chapter 13; Schermers and Blokker, International Instittltional Law, pp. 1096 ff.; J. M! Schneider, Treaty-Making Potver of International Organisations, Geneva, 1959, and C. Parry 'The Treaty-Making Power of the UN', 26 BYIL, 1949,
p p 147. See also above, chapter 16, p. 811, with regard to the Convention on the Law
of Treaties between States and International Organisations. See also Yearbook of the ILC,
1982, vol. 11, part 2, pp. 9 ff.
15"ee e.g. Hungdah Chiu, The Capacity of International Organisations to Conclude Treaties
and the Special Legal Aspects of the Treaties So Concltded, The Hague, 1966; Agreementsof International Organisatiorls and the Vienna Corlvention on the Law of Treaties (ed.
K . Zemanek), Vienna, 1971; G. Nascimento e Silra, 'The 1986 Vienna Convention andthe Treaty-Making Power of International Organisations', 29 German YIL, 1986, p. 68,
and 'The 1969 and 1986 Conventions on the Law of Treaties: A Comparison' in Dinstein,
International L a ~ vat a Time of Perplexity, p. 461.
15'

'"

1198

I N T E R N A T I O N A L L AW

Commission that the phrase 'the rules of the organisation' meant, in addition to the constituent instrument^,'^^ relevant decisions and resolutionsl~~demonand the established practice of the 0 r ~ a n i s a t i 0 n .Accordingly,
stration of treaty-making capacity will revolve around the competences ofthe organisation as demonstrated in each particular case by reference tothe constituent instruments, evidenced implied powers and subsequent
practice.

The applicable law l S 7
International institutions are established by states by international
treaties. Such instruments fall to be interpreted and applied within theframework of international law. Accordingly, as a general rule, the applicable or 'proper' or 'personal' law of international organisations isinternational law.''' In addition, the organisation in question may wellhave entered into treaty relationships with particular states, for example,
in the case of a headquarters agreement, and these relationships will also
be governed by international law. Those matters that will necessarily (inthe absence of express provision to the contrary) be governed by international law will include questions as to the existence, constitution, status,
membership and representation of the organisation.'j9
However, the applicable law in particular circumstances may be domestic law. Thus, where the organisation is purchasing or leasing landor entering into contracts for equipment or services, such activities will
normally be subject to the appropriate national law. Tortious liability as
between the organisation and a private individual will generally be subject
to domestic law, but tortious activity may be governed by internationallaw depending upon the circumstances, for example, where there has been"'See e.g. article 43 and articles 75, 77, 79, 83 and 85 of the UN Charter concerning
military assistance arrangements with the Security Council and Trusteeship Agreements
respectively.
Yearbook u f t h e I L C , 1982, vol. 11, part 2, p. 41.
See e.g. Amerasinghe, Principles, pp. 226 ff.; F. A. Mann, 'International Corporations andNational Law', 42 BYIL, 1967, p. 145; F. Seyersted, 'Applicable Law in Relations Between
Intergovernmental Organisations and Private Parties: 122 HR, 1976 111, p. 427, and C. W.
renks, The Proper Law o f International Organisations, London, 196 1.
'js Jenks, Proper Latv, p. 3,wrote that 'if a body has the character of an international body corporate the law governing its corporate life must necessarily be international in character'.
See also the Third US Restatement ofForeign Relations Law, rol. I , pp. 133 ff.
""eealso Colman J in Westland Ltd v. AOI [1995] 2 W L R 126, 144 ff., and Millett J in In
re International Tin Council [I9871 Ch. 419,452, upheld by the Court ofappeal, [I9891
Ch. 309, 330.

'"'"

INTERNATIONAL INSTITUTIONS

1199

damage to the property of an international organisation by the police orarmed forces of a state.160 The internal law of the organisation will covermatters such as employment relations, the establishment and functioningof subsidiary organs and the management of administrative services.161
The internal law of an organisation, which includes the constituent instruments and subsidiary regulations and norms and any relevant contractual
arrangements, may in reality be seen as a specialised and particularisedpart of international law, since it is founded upon agreements that draw
their validity and applicability from the principles of international law.

The responsibility of international institutions l h 2
The establishment of an international organisation with international
personality results in the formation of a new legal person, separate anddistinct from that of the states creating it. This separate and distinct personality necessarily imports consequences as to international responsibility, both to and by the organisation. The International Court noted in the
Reparations case, for example, that163'when an infringement occurs, theorganisation should be able to call upon the responsible state to remedy
its default, and, in particular, to obtain from the state reparation for thedamage that the default may have caused' and emphasised that there existed an 'undeniable right of the organisation to demand that its members
shall fulfil the obligations entered into by them in the interest of the goodworking of the ~ r g a n i s a t i o n ' Responsibility.~~~
is a necessary consequenceof international personality and the resulting possession of international
160 See e.g. Amerasinghe, Principles, pp. 226 ff.

Ibid., pp. 324 ff. See also P. Cahier, 'Le Droit Interne des Organisations Internationales:
67 RGDIP, 1963, p. 563, and G. Balldore-Pallieri, 'Le Droit Interne des Organisations
Internationales: 127 HR, 1969 11, p. 1.
See e.g. Klabbers, Introduction, chapter 14; Amerasinghe, Principles, chapter 8; Schermers
and Blokker, International Institutional Law, pp. 1166 ff.; Bowerti International Institutions, pp. 512 ff.; hf. Hirsch, The Responsibility of International Organisations Towards
Third Parties: Sonie Basic Principles, Dordrecht, 1995; C. Eagleton, 'International Organisation and the Law of Responsibility: 76 HR, 1950 I, p. 319; Garcia Amador, 'State
Responsibility: Some New Problems: 94 HR, 1958,p. 410, and M. Perez Gonzalez, 'Les
Organisations Internationales et le Droit de la Responsabilite: 92 RGDIP, 1988, p. 63. The
International Law Commission is currently considering the question of responsibility ofinternational organisations: see e.g. Report of the ILC, 2002, Al57110, p. 228. See also P.
Klein, La Responsabilitt. des Organisations Internationales, Brussels, 1998. See also above,
chapter 14.
16' ICJ Reports, 1949, pp. 174, 183; 16 AD, pp. 318, 327.
164 ICJ Reports, 1949, p. 184; 16 AD, p. 328.
I"

'"

1200

I N T E R N A T I O N A L LAW

rights and duties. Such rights and duties may flow from treaties, such as
headquarters agreements,l6j or from the principles of customary international law.166The precise nature of responsibility will depend upon thecircumstances of the case and, no doubt, analogies drawn from the law ofstate responsibility with regard to the conditions under which responsibility will be imposed.I6' In brief, one can note the following. The basis ofinternational responsibility is the breach of an international obligation1
and such obligations will depend upon the situation. The Court notedin the Reparations case169that the obligations entered into by member
states to enable the agents of the UN to perform their duties were obligations owed to the organisation. Thus, the organisation has, in the case ofa breach of such obligations, 'the capacity to claim adequate reparation,and that in assessing this reparation it is authorised to include the damage
suffered by the victim or by persons entitled through him: Whereas theright of a state to assert a claim on behalf of a victim is predicated upon
the link of nationality, in the case of an international organisation, thenecessary link relates to the requirements of the organisation and therefore the fact that the victim was acting on behalf of the organisation in
exercising one of the functions of that organisation. As the Court noted,'the organisation.. .possesses a right of functional protection in respectof its agents'."0
Just as a state can be held responsible for injury to an organisation,so can the organisation be held responsible for injury to a state, where
the injury arises out of a breach by the organisation of an international
obligation deriving from a treaty provision or principle of customaryinternational law.171Again, analogies will be drawn from the general rules
relating to state responsibility with regard to the conditions under which
responsibility is imposed.
See e.g. the W H O Regional Office case, ICJ Reports, 1980, p. 73; 62 ILR, p. 450 and theCase Concerning the Obligation to Arbitrate, ICJ Reports, 1988, p. 12; 82 ILR, p. 225.
'66 See the WHO Regional Office case, ICJ Reports, 1980, pp. 73, 90; 62 ILR, pp. 450, 474,
referring to 'general rules of international law'.
16' See above, chapter 14. See also Report of the ILC, 2002, Al57110, p. 228.
See e.g. the Reparations case, ICJ Reports, 1949, p. 180; 16 AD, p. 323.
169 ICJ Reports, 1949, p. 184; 16 AD, p. 328.
170 ICJ Reports, 1949, p. 184; 16 AD, p. 329. Note that the Court held that there was no rule oflaw which assigned priority either to the national state of the victim or the internationalorganisation with regard to the bringing of an international claim, ICJ Reports, 1949,
p. 185; 16 AD, p. 330.
l7' See e.g. the W H O Regional Office case, ICT Reports, 1980, p. 73; 62 ILR, p. 450. Note that
under articles 6 and 13 of the Outer Space Treaty, 1967, international organisations may
be subject to the obligations of the treaty without being parties to it.
16'INTERNATIONAL INSTITUTIONS

1201

The issue of responsibility has particularly arisen in the context of UN
peacekeeping operations and liability for the activities of the members ofsuch forces. In such circumstances, the UN has accepted responsibility
and offered compensation for wrongful acts.li2 The crucial issue will bewhether the wrongful acts in question are imputable to the UN and thishas not been accepted where the offenders were under the jurisdiction of
the national state, rather than under that of the UN. Much will depend
upon the circumstances ofthe operation in question and the nature of thelink between the offenders and the UN. It appears, for example, to havebeen accepted that in the Korean (1950) and Kuwait (1990) operations
the relationship between the national forces and the UN was such as topreclude the latter's responsibility.'73 While responsibility will exist forinternationally unlawful acts attributable to the institution in question,
tortious liability may also arise for injurious consequences caused by lawful activities, for example environmental damage as a result of legitimate
space a~tivities."~Liability of member states li5
The relationship between the member states of an organisation and theorganisation itself is often complex. The situation is further complicatedupon a consideration of the position of third states (or organisations)prejudiced by the activities of the organisation. The starting point for
any analysis is the issue of legal personality. An international organisation
created by states that does not itself possess legal personality cannot be
the bearer of rights or obligations separate and distinct from those of
the member states. It therefore follows that such organisations cannot beinterposed as between the injured third parties and the member states
172 See e.g. B. Amrallah, 'The International Responsibility of the United Nations for Activities

Carried Out by UN Peace-Keeping Forces', 23 Revue Egyptienrze de Droit Interizational,
1976, p. 57; D. W. Bowett, UhTForces,London, 1964, pp. 149 ff.; F. Seyersted, 'United
Nations Forces: Some Legal Problems: 37 BYIL, 1961, p. 351. See also Amerasinghe,
Principles, pp. 242 ff., and M v. Organisation des Nations Unies et l%tat Belge, 45 ILR,
p. 446.
173 See Amerasinghe, Principles, p. 244.
17%s to remedies, see K. Wellens, Rernedies Against International Organisatiorzs, Cambridge,
2002.
17' See e.g. Amerasinghe, Principles, chapter 9; Schermers and Blokker, Irlterrlational Institutional Law, pp. 990 ff.; Higgins, 'Legal consequences'; H. Schermers, 'Liability ofInternational Organisations', 1 Leiden Journal oflnternational Law, 1988, p. 14; C. F. Amerasinghe, 'Liability to Third Parties of Member States of International Organisations:
Practice, Principle and Judicial Precedent', 85 AJIL, 1991, 259.

1202

I N T E R N A T I O N A L LAWof that organisation. In such cases any liability for the debts or delicts
attributable to the organisation causing harm to third parties would fallupon the member states.176Where, however, the organisation does possess
legal personality, the situation is different. Separate personality implies
liability for activities entered into. The question of the liability of member
states to third parties may arise subsidiarily and poses some difficulty.
Such a question falls to be decided by the rules of international law notleast since it is consequential upon a determination of personality whichis in the case of international organisations governed by international
law.17' The problem is also to be addressed in the context of the generalprinciple of international law that treaties do not create obligations forthird states without their consent (pacta tevtiis nec nocent n e c p r o ~ u n t ) . ' ~ ~By virtue of this rule, member states would not be responsible for breachesof agreements between organisations and other parties.
The problems faced by the International Tin Council during 1985-6
are instructive in this c ~ n t e x t . " The~ ITC, created in 1956, conducted
its activities in accordance with successive international tin agreements,
which aimed to regulate the tin market by virtue of export controls andthe establishment of buffer stocks of tin financed by member states. The
Sixth International Tin Agreement of 1982 brought together twenty-three
producer and consumer states and the EEC. In October 1985, the ITC
announced that it had run out of funds and credit and the London Metal
Exchange suspended trading in tin. The situation had arisen basically asa result of over-production of the metal and purchasing of tin by the ITC
at prices above the market level.
Since the ITC member states refused to guarantee the debts of theorganisation and since proposals to create a successor organisation to the
ITC collapsed, serious questions were posed as to legal liabilities. The ITC
See e.g. Higgins, 'Legal Consequences', p. 378, and Amerasinghe, Principles, p. 254.
'77 It is possible for states to create an international organisation under domestic law, for ex-

ample, the Bank for International Settlements, butthis is very rare: see e.g. M. Giovanoli,'The Role of the Bank for Internatioilal Settleillents in Interilatioilal Moiletary Cooperation and Its Tasks Relating to the European Currency Unit: 23 The Internatioizal
Lawyer', 1989, p. 841.
""eearticle 34 of the Vienna Convention on the Law of Treaties, 1969: See also above,
chapter 16, p. 834.
'j9 See e.g. The Second Report from the Trade and Industry Committee, 1985-6, HC 305-1,
1986 and The Times, 13 march 1986, p. 21 and ibid., 14 March 1986, p. 17. See also
G. JVassermann, 'Tin and Other Commodities in Crisis', 20 Journal of lVorld Trade Law,
1986, p. 232; E. Lauterpacht, 'Development', p. 412; I. Cheyne, 'The International Tin
Council', 36 ICLQ, 1987, p. 931, ibid., 38 ICLQ, 1989, p. 417 and ibid., 39 ICLQ, 1990,
p. 945, and R. Sadurska and C. M. Chinkin, 'The Collapse ofthe Interilational Till Council:
A Case of State Responsibility?', 30 Va. JIL, 1990, p. 845.

INTERNATIONAL INSTITUTIONS

1203

was a corporate entity enjoying a measure oflegal immunity in the UK as aresult of the International Tin Council (Immunities and Privileges) Order1972. It had immunity from the jurisdiction of the courts except in casesof enforcement of an arbitral award. The ITC Headquarters Agreement
provided that contracts entered into with a person or company resident
in the UK were to contain an arbitration clause. It was also the casethat where a specific agreement provided for a waiver of immunity by
the organisation, the courts would have j u r i s d i ~ t i o n . Accordingly,'~~
theimmunity from suit of the ITC was by no means unlimited.
A variety of actions were commenced by the creditors, of which themost important was the direct action. Here, a number of banks and brokers proceeded directly against the Department of Trade and Industry of
the British government and other members of the ITC on the argumentthat they were liable on contracts concluded by the 1Tc.lS1The issues wereargued at length in the Court of Appeal and in the House of ~ o r d s . "The~main s~brnission''~for present purposes was that the members of the ITC
and the organisation were liable concurrently for the debts under both
English and international law. It was argued that under international law
members of an international organisation bear joint and several liability
for its debts unless the constituent treaty expressly excludes such liability.
Although there had been hints of such an approach earlierl'%nd treaty
practice had been far from consistent, Lord Templeman noted that 'no
lS0
See e.g.

Standard Chartered Bonk v. ITC [I9861 3 All ER 257; 77 ILR, p. 8.

lS1
See also the attempt to have the ITC wound up under Part XXI ofthe Companies Act 1985,

Re International Tin Cotlncil [I9881 3 All ER 257, 361; 80 ILR, p. 181, and the attempt
to appoint a receiver by n7ayof equitable execution over the assets of the ITC follo~vingan arbitration award against the ITC (converted into a judgment) which it was argued
would enable contril3utions or an indemnity to be claimed from the members, Maclrline
Tliatson v. International Tin Coilncil [I9881 3 WLR 1169; 80 ILR, p. 191.
Is'
Muclaine Watson v. Deprzrtment of Trade and Iitdrlstry [I9881 3 WLR 1033 (Court ofAppeal); 80 ILR, p. 49 and [I9891 3 All ER 523 (House of Lords) sub. nom. J. H. Rayner
Ltd v. Department of Trade uitd Ozdrlstl-y;81 ILR, p. 671.
18' One subillission was that the relevant International Tin Council (Immunities and Privileges) Order 1972 did not incorporate the ITC under English law but conferred upon it
the capacities of a body corporate and thus the ITC did not have legal personality. Thiswas rejected by the House of Lords, [I9891 3 All ER 523,527-8 and 548-9; 81 ILR, pp. 677,
703. Another submission was that the ITC was only authorised to enter into contracts
as an agent for the members under the terms of the Sixth International Tin Agreement,
1982. This was also dismissed, on the basis that the terms of the Order clearly authorised
the ITC to enter into contracts as a principal, [I9891 3 All ER 530 and 556-7; 81 ILR,
pp. 681, 715.
lR4
See e.g. M'estlotzdHelicopters v. Arab Organisation forItzd1lstvialisatiotz23 ILM, 1984,1071;
80 ILR, p. 600. See H. T. Adam, Les Organisrnes bltertlationaux Specialists, Paris, 1965,
vol. I, pp. 129-30, and Seidl-Hohenveldern, Corporations, pp. 119-20.

1204

I N T E R N A T I O N A L LAW

plausible evidence was produced of the existence of such a rule of international law'ls5 and this, it is believed, correctly represents the current
state of international law.ls6The liability of a member state could arise, ofcourse, either through an express provisionls7 in the constituent instruments of the organisation providing for the liability of member states orwhere the organisation was in fact under the direct control of the state
concerned or acted as its agent in law and in fact, or by virtue of unilateral
undertakings or guarantee by the state in the particular circumstance^.'^^
There may, however, be instances where the liability of member states
is engaged. For example, in Matthews v. UK, the European Court of
Human Rights stated that the European Convention on Human Rights
did not exclude the transfer of competences to international organisations'provided that Convention rights continue to be "secured". Member states'
responsibility therefore continues even after such a transfer.'ls9 Similarly,
where the member state acts together with an international organisationin the commission of an unlawful act, then it too will be liable.

The accountability of international institutions
The concept of accountability is broader than the principles of responsibility and liability for internationally wrongful acts and rests upon thenotion that the lawful application of power imports accountability for its
exercise. Such accountability will necessarily range across legal, political,
administrative and financial forms and essentially create a regulatory andbehavioural framework. In such a context, particular attention should be
l X 5 [I9891 3 All ER 523, 529; 81 ILR, p. 680. This was the ~ i e w
adopted by a majority of

the Court of Appeal: see Ralph Gibson LJ, 119881 3 \.\'LR 1033, 1149 and Kerr LJ, ibid.,1088-9 (but cf. Nourse LJ, ibid., 1129-31); 80 ILR, pp. 49, 170; 101-2; 147-9. It is fair toemphasise that the approach of the Court, in effect, was primarily focused upon domestic
law and founded upon the perception that without the relevant Order in Council the ITC
had no legal existence in the law of the UK. An international organisation had legal
personality in the sphere of international law and it did not thereby automatically acquire
legal personality within domestic legal systems. For that, at least in the case of the UK,
specific legislation was required.
I x 6 See e.g. the 1991 Partial Award on Liability of the ICC Tribunal in the Westlarzd Helicopters
case: see Higgins, 'Legal Consequences', p. 393. See also I. F. I. Shihata, 'Role of Law in
Economic Development: The Legal Problems of International Public Ventures', 25 Revue
Egyptienne de DroitInternatiorlal, 1969, pp. 119,125; Schermers and Blokker, International
Irlstitutiorlal Law, p. 992, and Amerasinghe, Principles, p. 289.
18' Or indeed a provision demonstrating such an intention.
lX8 See articles 7 and 8 of the Resolution of the Institut de Droit International, Annuaire del'lnstitut de Droit International, 1995 I , pp. 465, 467.
""~~dgrnent of 18 February 1999, para. 32.

INTERNATIONAL INSTITUTIONS

1205

devoted to the principle of good governance, which concerns the benchmarks of good administration and transparent conduct and monitoring;
the principle of good faith; the principle of constitutionality and institutional balance, including acting within the scope of functions; the principle of supervision and control with respect to subsidiary organs; theprinciple of stating reasons for decisions; the principle of procedural regularity to prevent inter alia abuse of discretionary powers and errors offact or law; the principle of objectivity and impartiality, and the principleof due diligence.'
Privileges and immunities 191
In order to carry out their functions more effectively, states and theirrepresentatives benefit from a variety of privileges and immunities. International organisations will also be entitled to the grant of privileges
and immunities for their assets, properties and representatives. The twosituations are not, of course, analogous in practice, since, for example, thebasis of state immunities may be seen in terms of the sovereign equalityof states and reciprocity, while this is not realistic with regard to organisations, both because they are not in aposition of 'sovereign equality'lg2and
because they are unable to grant immunities as a reciprocal gesture. It isalso the case that the immunities of states have been restricted in the lightof the distinction between transactions jure irnperii and jure gestioi~is,"~See e.g. the Recommended Rules and Practices drafted by the International Law Association's Committee on the Accountability of International Organisations, Report of theSeventieth Conference, New Delhi, 2002, pp. 774 ff.
19' See e.g. Klabbers, Introduction, chapter 8; Reinisch, lnternatiorlal Organisations, pp. 127
ff.; Amerasinghe, Principles, chapter 12; E. Gaillard and I. Pingel-Lenuzza, 'International
Organisations and Immunity from Jurisdiction: To Restrict or To Bypass: 51 ICLQ, 2002,
p. 1; M. Singer, 'Jurisdictional Immunity of International Organisations: Human Rights
and Functional Necessity Concerns', 36 Va. JIL, 1995, p. 53; C.Mr.
Jenks, Internationalhnnzzrnities, London, 1961; J. F. Lalive, 'L'Immunite de Juridiction et d'Execution desOrganisations Internationales', 84 HR, 1953 111, p. 205; C. Dominice, 'Le Nature et
1'Etendue de 1'Immunite des Organisations' in Festschrifr IgnazSeidl-Hol~enveldern(ed. K .
H. Bockstiegel), Cologne, 1988, p. 11; Nguyen Quoc Dinh, 'Les Privileges et Immunites
des Organisations Internationales d'apres les Jurisprudences Nationales Depuis 1945:
AFDI, 1957, p. 55; D. B. Michaels, I~zter~zational
Privileges and Irnnltr~zitiex,The Hague,
1971; Kirgis, International Organisations, pp. 26 ff.; Yearbook of the ILC, 1967, vol. 11,
pp. 154 ff.; DUSPIL, 1978, pp. 90 ff. and ibid., 1979, pp. 189 ff., and Morgenstern, Legal
Problems, pp. 5-10.
The reference, for example, in Branno v. Ministry o fWar22 ILR, p. 756,to the 'sovereigntyof NATO' is misleading.
See above, chapter 13,p. 631.
19'

'"
'"

1206

I N T E R N A T I O N A L LAW

while any such distinction in the case of international organisations would
be inappropriate.lg4The true basis for the immunities accorded to international organisations is that they are necessitated by the effective exercise of their functions. This, of course, will raise the question as to how
one is to measure the level of immunities in the light of such functional
necessity.
As far as the UN itself is concerned, article 105 of the Charter notesthat:(1) The Organisation shall enjoy in the territory of each of its members
such privileges and immunities as are necessary for the fi~lfilmentof
its purposes.
(2) Representatives of the members of the United Nations and officials of
the Organisation shall similarly enjoy such privileges and immunities
as are necessary for the independent exercise of their functions inconnection with the O r g a n i s a t i ~ n . ' ~ 'These general provisions have been supplemented by the General Convention on the Privileges and Immunities of the United Nations, 1946, andby the Convention on Privileges and Immunities of the Specialised Agencies, 1947.l" These general conventions, building upon provisions in therelevant constituent instruments, have themselves been supplemented bybilateral agreements, particularly the growing number of headquarters
and host agreements. The UN, for example, has concluded headquarters agreements with the United States for the UN Headquarters in New
York and with Switzerland for the UN Office in Geneva in 1947.'" Suchagreements, for example, provide for the application of local laws within
194 See R. Higgins, Problems and Process, Oxford, 1994, p. 93.

1 9 5 Note that the provisions dealing with privileges and immunities of international financial

institutions tend to be considerably more detailed: see e.g. article \'I1 of the Articles ofAgreement of the International Bank for Reconstruction and Development, article IX of
the Articles of Agreement of the International Monetary Fund and articles 46 to 55 of theConstitution of the European Bank for Reconstruction and Development.
lg6 This also contains separate draft annexes relating to each specialised agency. See also theAgreement on the Privileges and Immunities of the Organisation of American States,
1949; the General Agreement on the Privileges and Immunities of the Council of Europe,
1949 and the Protocol Concerning the Privileges and Immunities of the European Communities, 1965.
19' See also the agreements with Austria, 1979, regarding the UN Vienna Centre; with rapan,
1976, regarding the UN University, and with Kenya, 1975, regarding the UN Environment
Programme. Note also thevarious Status of Forces Agreements concluded by the UN with,for example, Egypt in 1957, the Congo in 1961 and Cyprus in 1964, dealing with matterssuch as the legal status, facilities, privileges and immunities of the UN peacekeeping
forces.

1208I N T E R N A T I O N A L LAW

to perform its tasks independently and free from interferences under all
circumstances' and noted that 'an international organisation is in principle not subject to the jurisdiction of the courts of the host state in respectof all disputes which are immediately connected with the performance ofthe tasks entrusted to the organisation in question'. The Italian Court ofCassation in FA0 v. INPDAI 20%eld that activities closely affecting theinstitutional purposes of the international organisation qualified for immunity, while the Employment Appeal Tribunal in Mukuro v. European
Bank for Reconstruction and ~ e v e l o p m e n205t stated that immunity fromsuit and legal process was justified on the ground that it was necessary forthe fulfilment of the purposes of the bank in question, for the preservation of its independence and neutrality from control by or interference
from the host state and for the effective and uninterrupted exercise ofits multinational functions through its representatives. The Swiss Labour
Court in Z M v. Permanent Delegation of the League of Arab States to the
UN held that 'customary international law recognised that internationalorganisations, whether universal or regional, enjoy absolute jurisdictional
immunity. . . This privilege of international organisations arises from the
purposes and functions assigned to them. They can only carry out theirtasks if they are beyond the censure of the courts of member states or their
headquarters.'206
The issue of the immunity of international organisations came before
the European Court of Human Rights in Waite and Kennedy v. Germany,
where the applicants complained that by granting immunity to an international organisation in an employment dispute, Germany had violated
the Convention right of free access to a court under article 6(1). The
European Court, however, declared that the attribution of privileges andimmunities to international organisations was 'an essential means of ensuring the proper functioning of such organisations free from unilateralinterference by individual governments'.207
As far as the position of representatives of states to international organisations is concerned, article IV, section 11, ofthe UN General Convention,
1946 provides for the following privileges and immunities:
87 ILR, pp. 1, 6-7. See also n/lininili v. Bari Iilstitllte, ibid., p. 28 a n d Sindacuto UIL v.
Bari Institute, ibid., p. 37.
'05 119941 ICR 897,903. See also the European ,Vlolecular Biology Laboratory Arbitration 105
ILR, p. 1.
'06 116 ILR, pp. 643, 647.
'07 Judgment of 18 February 1999, para. 63; 116 ILR, pp. 121, 134.
'04

INTERNATIONAL INSTITUTIONS

1209(a) immunity from personal arrest or detention and from seizure of theirpersonal baggage, and in respect of words spoken or written and allacts done by them in their capacity as representatives, immunity fromlegal process of every kind;(b) inviolability for all papers and documents;(c) the right to use codes and to receive papers or correspondence bycourier or in sealed bags;(d) exemption in respect of themselves and their spouses from immigration restrictions, alien registration or national service obligations inthe state they are visiting or through which they are passing in theexercise of their functions;(e) the same facilities in respect of currency or exchange restrictions as
are accorded to representatives of foreign governments on temporary
official missions;(f) the same immunities and facilities in respect of their personal baggage
as are accorded to diplomatic envoys; and also(g) such other privileges, immunities and facilities not illconsistent withthe foregoing as diplomatic envoys enjoy, except that they shall haven o right to claim exemption from customs duties on goods imported(otherwise than as part of their personal baggage) or from excise duties
or sales taxes.

Article IV, section 14 provides that such privileges and immunites areaccordedin order to safeguard the independent exercise of their functions in connection with the United Nations. Consequently a Member not only has theright but is under a duty to waive the immunity of its representative in any
case where in the opinion of the Member the immunity would impede thecourse of justice, and it can be waived without prejudice to the purpose forwhich the immunity is accorded.208"8

The question of the representation of states to international organisations is also dealt
with in the 1975 L'ienna Convention on the Representation of States in their Relations
with International Organisations of a Universal Character, which is closely modelled on
the 1961 Vienna Convention on Diplomatic Relations, although it has been criticised bya nuinher of host states for permitting more extensive privileges and immunities than isrequired in the light of functional necessity. See DUSPIL, 1975, pp. 38 ff. Article 30 of
the Convention, in particular, provides that the head of inission and the inembers of the
diplomatic staff of the mission shall enjoy immunity from the criminal jurisdiction of
the host state and immuility froin its civil and administrative jurisdiction, except in casesof real action relating to private immovable property situated in the host state (unlessheld on behalf of the sending state for the purposes of the mission); actions relating to1210

I N T E R N A T I O N A L LAW

The question of the privileges and immunities of representatives is invariably also addressed in headquarters agreements between internationalorganisations and host states. Article V, section 15 of the UN Headquarters
Agreement, 1947, for example, states that representatives209 are entitledin the territory of the US 'to the same privileges and immunities, subject
to corresponding conditions and obligations, as it accords to diplomatic
envoys accredited to
The International Court delivered an Advisory Opinion concerning
the applicability of provisions in the General Convention to special rapporteurs appointed by the Sub-Commission on the Prevention of Discrimination and the Protection of ~ i n o r i t i e s . ~Article"
VI, section 22, of
the Convention provides that experts performing missions for the United
Nations are to be accorded such privileges and immunities as are necessary for the independent exercise of their functions during the periodsof their missions. The International Court noted that such privileges andimmunities could indeed be invoked against the state of nationality or ofresidence2'' and that special rapporteurs for the Sub-commission were
to be regarded as experts on missions within the meaning of section 22.213
The privileges and immunities that would apply would be those that werenecessary for the exercise of their functions, and in particular for the establishment of any contacts which may be useful for the preparation, thedrafting and the presentation of their reports to the sub-c om mission.^^^The issue was revisited in the Immunity from Legal Process advisory
opinion of the International Court which concerned the question of theimmunity from legal process in Malaysia of Mr Cumaraswamy, a Special
Rapporteur of the UN Commission of Human Rights on the Independence of Judges and ~ a w ~ e r s .The
~ " Court confirmed that article VI,
succession and actions relating to any professional or commercial activity exercised by the
person in question in the host state outside his official functions. See also above, chapter
13, p. 668.
These are defined in article IT,
section 15(1)-(4).
See also Third US Restatement of Foreign Relations Law, pp. 518 ff.
The Applicability ofArticle 171, Section 22, ofthe Convention on the Privileges and Inlnlunities
ofthe LTnitedNations,ICJ Reports, 1989, p. 177; 85 ILR, p. 300. This opinionwas requestedby the Economic and Social Council, its first request for an Advisory Opinion under article
96(2) of the UN Charter.
2'2 In the absence of a reservation by the state concerned, ICJ Reports, 1989, pp. 195-6; 85
ILR, pp. 322-3.
"3 This applied even though the rapporteur concerned was not, or was no longer, a memberof the Sub-Coinrnissioi~,since such a person is entrusted by the Sub-Commission with aresearch mission, ICJ Reports, 1989, pp. 196-7; 85 ILR, pp. 323-4.
'I4 Ibid.
ICT Reports, 1999, p. 62; 121 ILR, p. 405.

"'
"'

"'

'''

INTERNATIONAL INSTITUTIONS

1211

section 22 applied to Mr Cumaraswamy who, as Special Rapporteur, hadbeen entrusted with a mission by the UN and was therefore an expert
within the terms of the section. The Court held that he was entitled toimmunity with regard to the words spoken by him during the course of aninterview that was published in a journal and that, in deciding whether anexpert on mission was entitled to immunity in particular circumstances,
the UN Secretary-General had a 'pivotal
The Court concluded bystating that the Government of Malaysia had an obligation under article
105 of the Charter and under the General Convention to inform its courtsof the position taken by the Secretary-General. Failure to do so rendered
the state liable under international law.217
As far as other international organisations are concerned, the relevant
agreements have to be consulted, since there are no generalised rules but
rather particular treaties.
International agreements concerning privileges and immunities havebeen implemented into domestic law by specific legislation in a number ofstates, examples being the UK International Organisations Act 1 9 6 8 and~~~the US International Organisations Immunities Act of 1 9 4 5 . ~The' ~ usualpattern under such legislation is for the general empowering provisions
contained in those Acts to be applied to named international organisations
by specific secondary acts. In the case of the International Organisations
Act 1968, for example, a wide variety of organisations have had privileges
and immunities conferred upon them by Order inIn thecase of the US Act, the same process is normally conducted by means of
Executive Orders.221""CJ

Reports, 1999, pp. 84 and 87.

"'Ibid., pp. 87-8. The Court also affirmed that questions of immunity were preliminary
issues to be decided expeditiously in limine litir, ibid., p. 88. This is the same position as
immunity claims before domestic courts: see above, chapter 13, p. 624.
"$
Replacing the International Organisations (Immunities and Privileges) Act 1950. The
International Organisations Act 1981 inter alia extended the 1968 Act to commonwealth organisations and to international commodity organisations and permitted theextension of privileges and immunities to states' representatives attending conferences in
the UK.
'I9 See also Legislative Texts and Treaty Provisiorls Concernirlg the Legal Status, Privileges andIrr~mnnitiesof International Organisations, STILEGISER.BI10and 11.
220 See e.g. the African Development Bank, SI 19831142; Council of Europe, SI 19601442;
European Patent Organisation, SI 19781179 and SI 198011096; International Maritime
and Satellite Organisation, SI 19801187; NATO, SI 197411257 and SI 197511209, and theUN, SI 197411261 and SI 197511209.
See e.g. the Executive Order 12359 of 22 April 1980 designating the Multi-National Forceand Observers as a public international organisation under s. 1 of the 1945 Act entitled to

"'

1212

I N T E R N A T I O N A L LAW

The range of privileges and immunities usually extended includes immunity from jurisdiction; inviolability of premises and archive^;"^ currency and fiscal privileges and freedom of c o m m ~ n i c a t i o n sIn. ~the~ ~ caseof immunity from jurisdiction, section 2 of the UN General Convention,
1946 provides that;
The United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except
insofar as in any particular case it has expressly waived its immunity. Itis, however, understood that n o waiver of immunity shall extend t o any
measure of execution.224

Other international institutions do not possess such a wide immunity.
In many cases, actions brought against the particular organisations indomestic courts are specifically permitted.225Waiver of immunity fromprocess is permitted, but must be express.226
enjoy the privileges, exemptions and immunities conferred by that Act. See also Executive
Order 12403 of 8 February 1983 with regard to the African Development Bank; Executive
Order 12467 of 2 March 1984 with regard to the International Boundary and Water
Commission, US and Mexico; Executive Order 12628 of 8 March 1988 with regard to the
UN Industrial Development Organisation, and Executive Order 12647 of 2 August 1988
with regard to the Multilateral Investment Guarantee Agency. See further Cumulative
DUSPIL 1981-8, IVashington, 1993, vol. I, pp. 330 ff.
711--The inviolability ofpreinises and archives is particularly important for the effective operation ofinternational organisations. See e.g, articles 4 and 5 ofthe UN General Convention,
1946 and article 5 of the Specialised Agencies Convention, 1947. See also Amerasinghe,
Principles, pp. 383 ff. Note that in Sheursorl Lehrr~anu. ~MaclaineT47atatson (No. 2 ) [I9881
1 \.\'LR 16; 77 ILR, p. 145, the House of Lords held that the inviolability of official documents could be lost as a result of communication to third parties.
"' Amerasinghe, Principles, p. 374. An examination of Orders in Council would demonstrate the following privileges and immunities: immunity from suit and legal process;inviolability of official archives and premises; exemption or relief from taxes and rates,
but not import taxes except where the goods or publications are imported or exported for
official use; various reliefs with regard to car tax and VAT (value added tax) with regard
to cars or goods destined for official use, and priority to be given to telecommunications
to and from the UN Secretary-General, the heads of principal organs of the UN and
the President of the International Court: see also the International Organisations Act
1968, Schedule I. See also sections 2-7 of the US International Organisations Immunities
Act 1945.
""eealso article IV of the Specialised Agencies Convention, 1947.
225 See e.g. article VII of the Articles of Agreement of the International Bank for Reconstruction and Development and Lutcller SA v. Inter-American Development Bank 382 F.2d 454(1967) and Mendaro r.World Bunk 717 F.2d 610 (1983); 92 ILR, p. 92. See also article 6of the Headquarters Agreement between the UK and the International Maritime Satellite
Organisation, 1980.
' 2 6 See e.g. Singer, 'Jurisdictional Immunity', pp. 72 ff.

INTERNATIONAL INSTITUTIONS

12U

Dissolution 22'
The constitutions of some international organisations contain express
provisions with regard to dissolution. Article VI(5) of the Articles ofAgreement of the International Bank for Reconstruction and Development, for example, provides for dissolution by a vote of the majority ofGovernors exercising a majority of total voting, and detailed provisions
are made for consequential matters. Payment of creditors and claims, forinstance, will have precedence over asset distribution, while the distribution of assets will take place on a proportional basis to shareholding.
Different organisations with such express provisions take different positions with regard to the type of majority required for dissolution. In thecase of the European Bank for Reconstruction and Development, for example, a majority of two-thirds of the members and three-quarters of thetotal voting power is required. A simple majority vote is sufficient in thecase of the International Monetary Fund, and a majority of member states
coupled with a majority of votes is necessary in the case of the International Bank for Reconstruction and Development. Where an organisation
has been established for a limited period, the constitution willinvariably
provide for dissolution upon the expiry of that period.228
Where there are no specific provisions concerning dissolution, it islikely that an organisation may be dissolved by the decision of its highest
representative body.229The League of Nations, for example, was dissolved
by a decision taken by the Assembly without the need for individual
assent by each member230and a similar process was adopted with regard
to other organ is at ion^.^^^ It is unclear whether unanimity is needed or"' See e.g. Amerasinghe, Principles, chapter 15; Klabbers, Introduction, chapter 15, andLaw, pp. 1015 ff. See also C. W. Jenks,
Schermers and Blokker, International Iilstit~~tional'Some Constitutional Problenls of International Organisations: 22 BYIL,1945, p. 11, andBo~vett'sInternational Institutions, pp. 526 ff.
"$
This applies particularly to commodity organisations: see e.g. the International TinAgreement, 1981; the Natural R~tbberAgreement, 1987 and the International Sugar Agreement,
1992.
229 See Amerasinghe, Principles, p. 471, and Schermers and Blokker, International Institutional Law, p. 1024.
"O
In fact the decision was taken unanimously by the thirty-five members present, ten members being absent: see e.g. H. McKinnon TITood,'Dissolution of the League of Nations:
23 BYIL, 1946,p. 317.
See e.g. the dissolutions of the International Meteorological Organisation; the UN Relief
and Rehabilitation Administration; the International Refugee Organisation; the International Coinmission for Air Navigation; the South East Asian Treaty Organisation andthe Latin American Free Trade Association: see Schermers and Blokker, International
Institutional Law, pp. 1024-5.

'"

1214

I N T E R N A T I O N A L LAW

whether the degree of majority required under the constitution of theparticular organisation for the determination of important questions232
would
The actual process of liquidating the assets and dealing
with the liabilities of dissolved organisations is invariably laid down by theorganisation itself, either in the constitutional documents or by special
measures adopted on dissolution.
Succession 234
Succession between international organisations takes place when the functions and (usually) the rights and obligations are transferred from one
organisation to another. This may occur by way of straightforward replacement,"br by ab~orption,~"or by merger, or by effective secessionof part of an organisation, or by simple transfer of certain functions
from one organisation to another.237This is achieved by agreement andis dependent upon the constitutional competence of the successor organisation to perform the functions thus transferred of the former organisation. In certain circumstances, succession may proceed by way of impliThe precise consequences ofcation in the absence of express pro~ision.~"E . 6 the two-thirds majority required under art~cle18 of the UN Charter for the Generalof i~nportantquestions.
Assembly's deter~n~nation'33 Organisations may be dissolved where the same parties to the treaty establishing the organisations enter a new agreement or possibly by disuse or nlore controversially as a resultof changed circumstances (rebus sic stcuttibus):see Schermers and Blokker, International
Institutional Law, pp. 1021-8.
"?"
See Amerasinghe, Principles, p. 476; Schermers and Blokker, International InstittltionalLaw, pp. 1015 ff.; H. Chiu, 'Succession in International Organisations: 14 ICLQ, 1965,
p. 83, and P. R. Myers, Succession between International Orgunisations, London, 1993.
'j5 Such as the replacement of the League of Nations by the United Nations.
E.g. the absorption of the International Bureau of Education by UNESCO.
'"See Amerasinghe, Principles, p. 476.
The International Court in the Stutns ofsotuth- WestAfiicu case, ICT Reports, 1950, pp. 128,134-7; 17 ILR, pp. 47, 51-5, held that the supervisory responsibilities of South Africa
under the mandate to administer the territory of South West AfricaINamibia continued
beyond the dissolution of the League of Nations and were in essence succeeded to by the
UN. This was in the context ofthe fact that the mandate itself constituted an international
status for the territory which therefore continuedirrespective ofthe existence ofthe League
and partly because the resolution of the Assembly of the League dissolving the Leagueof Nations had declared that the supervisory functions of the League were ending, notthe mandates themselves. It was emphasised that the obligation to submit to supervision
did not disappear merely because the supervisory organ had ceased to exist as the UN
performed similar, though not identical, supervisory functions. The Court concluded that
the UN General Assembly was legally qualified to exercise these supervisory functions,in the light inter alia of articles 10 and 80 of the UN Charter. This was reaffirmed by the
Court in the Narnibia case, ICJ Reports, 1971, pp. 16, 37; 49 ILR, pp. 2,26-34.
'32

"'

"'

INTERNATIONAL INSTITUTIONS

1215

such succession will depend upon the agreement concerned between theparties in question.239In general, assets of the predecessor organisation
will go to the successor organisation, as well as archives.240Whether thesame rule applies to debts is unclear.241
Suggestions for further reading
C. F. Amerasinghe, Principles of the Institutional Law ofInternationa1 Organisations,Cambridge, 1996

Bowett's Law of International Instittltions (eds. P. Sands a n d P. Klein), 5 t h edn,
London, 2001

J. Klabbers, An I~itroductio~z
to I~iternationalInstitutio~zalLaw, Cambridge, 2002
H . G. Schermers a n d N. M. Blokker, International Institzntional Law, 3 r d edn, T h e
Hague, 19 9 5
N. White, The Law of International Organisations, Manchester, 1996

bzternat~onalb ~ s t t t ~ ~ t ~Law,o n a lp. 1017 with regdrd to therelationship between the new MTorldTrade Organisation and the General Agreement on
Tarrifs and Trade (GATT) arrangements.
See e.g. PAC' v. Anlerican Secnrity and Trnst Conlpany, US District Court for the Districtof Columbia, 18 ILR, y . 441.
See e.g. Klabbers, Introduction, pp. 329-30.

239 See Schermers and Blokker,'"'41

S O M E USEFUL INTERNATIONAL LAW WEBSITES

See also web references in chapter footnotes
General sites (with links to relevant materials)

http://www.washlaw.edu/forint/forintmain.html The foreign andinternational law web of the Washburn University School of Law Library
http://www.asil.org/resource/home.htm Electronic resource guide of
the American Society of International Law
http://www.llrx.com/international~law.html
Web journal research
guide
http://www.lib.uchicago.edu/-llou/forintlaw.htinl Lyonette
Louis- Jacques guide to international law research, University of Chicago
http://www.law.ecel.uwa.edu.au/intlaw/ University of Western
Australia guide to international law resources
http://www2.spfo.unibo.it/spolfo/ILMAIN.htm University of Bologna
research guide to international law
http://www.law.cam.ac.uk/RCIL/home.htm Lauterpacht ResearchCentre for International Law
http://www.worldlii.org/catalog/ World Law site
http://www.hg.org/govt.html Hieros Gamos law links
http://library.ukc.ac.uk/library/lawlinks/international.htm Universityof Kent law links
http://www.bibl.ulaval.ca/ress/droit/bouton8.html University of Laval,
French Canadian site on international law
http://www.ridi.org/ French resource for international law generallyThis listing excludes subscription services. The links were correct at the date of writing. No
respoilsibility is undertaken as to their coiltiilued existence or accuracy.

S O M E U S E F U L I N T E R N A T I O N A L L AW W E B S I T E S

1217

http://www.un.org/law United Nations site dealing with internationallaw generally
http://www4.worldbank.org/legal/lawlibrary.html World Bank Law
Library, including links to international organisations, treaties and legal
topicsHistory of international law

http://www.yale.edu/lawweb/avalon/avalon.htm Yale University
Avalon Project - historical documents
SourcesTreaties (see also Treaties)

http://untreaty.un.org/

UN treaty site

Cases (see also International courts and tribunals)

http://www.virtual-institute.de/en/wcd/wcd.cfm
Max Planck InstituteWorld Court digest
http://www.jura.uni-duesseldorf,de/rave/e/englhome.asp Index tocourt decisions and journal articles
Sources and evidence of custorn/statepractice/developrnent of international law(see also International law and municipal law)

http://www.un.org/law/ilc/ International Law Commission
http://www.uncitral.org/en-index.htmUN Commission on
International Trade Law
http://www.gksoft.com/govt/en/ Links to government websites
Writings

http://www.jura.uni-duesseldorf.de/rave/e/englhome.asp Index tocourt decisions and journal articles
http://www.ejil.org/ and http://www3.oup.co,uk/ejilaw/ European
Journal of International Law
http://stu.findlaw.com/journals/international.html International law
journals1218

I N T E R N A T I O N A L LAW

http://www.srdi.ws/(French)Summary of international law journals

International law and municipal law
National constitutions and legislation

http://www.oefre.unibe.ch/law/icl/index.html International
constitutional law site from University of Berne
http://www.fi~~dlaw.com/Oltopics/06constitutiona1/03forconst/
index.htm1 World constitutions
http://www.legislation,hmso.gov.uk/ UK legislation
http://www.hmso.gov.uk/stat.htm UK statutory instruments
http://www.bailii.org/ British and Irish legal information - cases andlegislation
http://thomas.loc.gov/ US legislation
http://www.canlii,org/ Canadian legal materials
http://www.llrx.com/features/canadian3.htm Canadian law
http://www.journal-officiel.gouv.fr/ French legislation
http://www.llrx.com/features/frenchlaw.htm French law
http:l/www.austlii.org/ Australian legal materials
http://www.worldlii.org/ Materials from other jurisdictions
http://jurist.law.pitt.edu/world/index.htm Links to national laws

National cases

http://www.courtserve2.net/index.htm UK cases
http://www.bailii.org/ British and Irish legal information - cases andlegislation
http://www.scotcourts.gov.uk/ Scottish cases

http://supct.law.cornell.edu/suyct/index.phy US Supreme Court cases
http://europa.eu.int/comm/justice~home/ejn/indexenhtm
Europeanjudicial network in civil and commercial law
http://www.coe.fr/venice/links-e.htm Venice Commission links tonational constitutional courts

S O M E U S E F U L INTERNATIONAL LAW W E B S I T E S

1219

Human rights (See also International humanitarian law)International human rights

http://www.un.org/rights/index.html UN human rights
http://www.unhchr.ch/ UN High Commissioner for Human Rights
http://wwwl.umn.edu/humanrts/ University of Minnesota humanrights library
http://humanrights.britishcouncil.orglnewsite2/frameset.asp?CatID=l&
CatName=News&GroupID=3&GroupName=World&UserID= British
Council's human rights network
http://www.law-lib.utoronto.ca/diana/Women's human rights
resources

http:llwww.amnesty.org/ Amnesty International
http://www.un.org/la~v/icc/ International Criminal Court
http://www.iccnow.org/ International Criminal Court materials
http://www.icty.org/ International Criminal Tribunal for the Former
Yugoslavia
http://www.ictr.org/ International Criminal Tribunal for Rwanda

Regional lzuman riglzts

European Court of Human Rights
http://www.cpt.coe.int/en/European Committee for the Prevention of
Torturehttp://www.coe.int/t/E/human-rightslecri/European Commission
against Racism and Intolerance
http://www.ecmi.de/doc/index.html European Centre for Minority
Issueshttp:llmw.achpr.org/ African Commission for Human and Peoples'
Rightshttp://wwwl.umn.edulhumanrtslafricalcomcases/allcases.html
Decisions of African Commission
http://wwwl.umn.edu/humanrts/cases/commissn.htm
Inter-American Commission on Human Rights
http://wwwl.umn.edu/humanrts/iachr/iachr.html Inter-American
Court of Human Rights
http://www.echr.coe.int/

1220

I N T E R N A T I O N A L LAW

http://www.corteidh.or.cr/ Official site for Inter-American Court of
Human Rights
http://www.cidh.oas.org/ Official site for Inter-American Commission
http://www.gwdg.de/-ujvr/hrch/hrch.htm Human Rights Chamber,
BosniaTerritory

http://www-ibru.dur.ac.uk/ International Boundaries Research Unit,
University of Durham
http://garnet.acns.fsu.edu/-phensel/territory.html#general Boundarylinks
http://www.antdiv.gov.au/default.asp?casid=76 Antarctica site ofAustralian government
Air and space law

http://www.iasl.mcgill.ca/ McGill University Institute of Air and Space
Law
http://www.icao.intl International Civil Aviation Organisation
http://www.oosa.unvienna.org/SpaceLaw/spacelaw.htm UN
international space law site
http://www.fas.org/spp/civil/russia/polLdocs.htm Russian space policy
documents
http://www.nasa.gov/ NASA
http://www.esa.int/export/esaCP/index.html European Space Agency
Law of the sea

http://www.un.org/Depts/los/index.htmUN site dealing with law of
the sea issues
http://www.oceanla~v.org/ Council on Ocean Law site
Treaties

http://www.yale.edu/lawweb/avalon/avalon.htm
Avalon Project

University of YaleS O M E U S E F U L INTERNATIONAL LAW W E B S I T E S

1221

http://fletcher.tufts.edu/multilaterals.html University of Tufts Fletcher
School Multilaterals Project
http://untreaty.un.org/ UN treaty site
http://conventions.coe.int/ Council of Europe treaty site
http://www.state.gov/s/l/c8455.htmUS treaties in force site
http://www.fco.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/
ShowPage&c=Page&cid=1007029396014
UK Foreign Office treaty
site
http://www.austlii.edu.au/au/other/dfat/ Australian Treaties Library
International environmental law

h t t p : / l m ~ . i p c c . c h / Intergovernmental Panel on Climate Change,
established by WMO and UNEP
http://unfccc.int/ UN Framework Convention on Climate Change
http://www.internationalwaterlaw.org/ International Water Law
Project
http://www.iaea.org/worldatom/ IAEA
http://www.nea.fr/ OECD Nuclear Energy Agency
http://www.un.org/esa/sustdev/ UN Commission on Sustainable
Development
http://iisdl.iisd.ca/ International Institute for Sustainable
Development
International courts and tribunals (see also Human rights)

http://www.pict-pcti.org/home.htmlInternational Courts andTribunals Project site
http://www.icj-cij.org/ International Court of Justice
http:/lmv.itlos.org/ International Tribunal for the Law of the Sea
http://pca-cpa.org/ Permanent Court of Arbitration
http://europa.eu.int/cj/en/index.htmEuropean Court of Justice andCourt of First Instance
http://www.eca.eu.int/EN/menu.htm European Court of Auditors
http://wbln0018.worldbank.org/ipn/ipnweb.nsf World Bank
Inspection Panels

1222

I N T E R N A T I O N A L LAW

http://www.bicusa.org/mdbs/wbg/inspectionpanel/ World Bank
Inspection Panel
http://untreaty.un.org/ola-internetlunathtmUN Administrative
Tribunal
http://www.worldbank.org/icsid/ International Centre for the
Settlement of Investment Disputes
http://www.iccwbo,org/index-court.asp International Chamber ofCommerce dispute resolution
http://www.iusct.org/index-english.htm1Iran-US Claims Tribunal
http://www.unog.ch/uncc/ UN Compensation Commission(Iraq)
http://www.tas-cas.org/ Court of Arbitration for Sport
http://www.ccj.org.ni/ Central American Court of JusticeInternational terrorism

http://jurist.law.pitt.edu/terrorism.htm terrorism
http://www.un.org/terrorism UN website on terrorism
http://www.undcp.org/odccp/terrorism.html UN Office on Drugs andCrime terrorism programme
http://www.un.org/Docs/sc/committees/l373/ Counter-Terrorism
Committee of the Security Council
http://europa.eu.int/comm/justice_home/news/terrorism/documents/
index-en.htm EU and terrorism materials

International humanitarian law

http://www.ihlresearch.org/portal/ihli/portalhome.php International
humanitarian law research site
http://www.icrc.org/ International Committee of the Red Cross

http://wwwl.umn.edulhumanrtslinstree/auoy.htm University of
Minnesota international humanitarian law
http://www.yale.edu/laweb/avalon/lawo~var/lawar.htmUniversity
of Yale Avalon Project laws of war
http://www.yale.edu/laweb/avalon/imt/imt.htm
Nuremberg war
crimes trials

S O M E U S E F U L INTERNATIONAL LAW W E B S I T E S

1223

http://fas-www.harvard.edu/-hsp/ Chemical and biological weaponssite
http://www.sipri.se/ Stockholm International Peace Research Institutehttp://ourworld.compuserve.com/homepages/Aspals/Homepage.htm
Military law site
International institutions

General

http://www.uia.org/extlinks/pub.php Links to internationalorganisations
http://www.un.org/ United Nations
Specialised agencies

http://www.imo.org/home.asp International Maritime Organisation
http://ilo.org/ ILO
http://who.org/ WHO
http://www.fao.org/ Food and Agriculture Organisation
Regional organisations
http://www.nato.int/sfor/index.htm SFOR
http://www.nato.int/kfor/welcome.html

KFOR

http://www.weu.int/ WEU
http://www.oecd.org/ OECD
http://www.coe.int/ Council of Europe
http://europ a.eu.int/ EU
http://www.arableagueonline.org/arableague/index-en.jsp Arab
Leaguehttp://www.africa-union.org/ African Union
http://www.aseansec.org/ Association of South East Asian Nations(ASEAN)
http://www.sadc.int/index.php?lang=english&path=&page=index
SADC
http://www.ecowas.int/ ECOWAS

1224

INTERNATIONAL L A W

http://www.iss.co.za/AF/RegOrg/unity~to~union/ecowas.html
ECOWAS documents
http://www.oas.org/default.htm OAS
http://www.al-bab.com/arab/docs/league.htmArab League
http://www.nato.int/ NATOhttp://www.osce.org/ OSCE
http://www.nafta-sec-alena.org/english/index.htmNAFTA
http://www.mercosur.org.uy/ Mercosur
http://www.ohr.int/ High Representative of Bosnia and Herzegovina

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

INDEX

Aaland Islands, 180, 226, 273 n153, 460
Aarhus Convention 1998, 757–8
accretion, 419–20
Achille Lauro, 590, 603
acid rain, 754, 780
acquiescencecustomary law, 76, 77, 84–6
deﬁnition, 84
state responsibility, 713
statehood, 217, 219, 243
territorial acquisitions, 437, 438,
440, 442
territorial sovereignty over high seas,543
acquired rights, doctrine, 97, 905–7
acts of God, 808 n316
acts of statecustomary law, 200
generally, 163–72
and state immunity, 623–34, 643
state responsibility, 705
administrative treaties, 138
admiralty proceedings, 649
advisory opinions
European Court of Human Rights,
326
Inter-American Court of Human
Rights, 360–2
International Court of Justice, 938,
1000–5ITLOS, 1009
Aegean Sea, 430, 1104
Afghanistan
Geneva Accords, 1111
human rights, 283
murder of diplomats, 681
and Red Cross, 1079

Soviet invasion, 36, 1117, 1153
UN mediation, 922, 1111
UN sanctions, 1130
UNGA emergency sessions, 1091
UNGA resolution, 1106 n113
and US right of self-defence, 1027,
1028
Africa. See also colonies; decolonisation
regional organisations, 1183–5
reluctance to use judicial settlement
procedures, 965
scramble for Africa, 1162
UN Commission, 1092
uti possidetis, 447, 448
African Charter on Human andPeoples’ Rights
Commission, 364–5
Court, 365
duties of individuals to state, 364
environmental protection, 756
generally, 363–5
inter-state complaints, 364
meaning of peoples, 363–4
range of rights, 363
self-determination, 270, 363
African Union, 46, 930–2, 1184, 1223
Afro-Asian states
European inﬂuence on, 94
UN resolutions, 1090
UN Security Council, 1085
Agenda for Peace, 1094, 1100, 1109
n126, 1156
aggression. See also use of force
Bosnia, 329
crime against peace, 597, 1018
deﬁnition, 1037, 1123
examples, 1123

1225
© Cambridge University Press

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

1226

index

aggression (cont.)
Germany, 30, 1166
historical approaches, 1014
international crime, 720
Italy, 1166
Japan, 1166
non-aggression principle, 39, 116,
117
suppression, 1082
and UN Security Council, 1102,
1103
agreements. See treaties
AIDS, 1045
air pollution
customary law, 781
EMEP, 782
generally, 754, 780–3
Geneva Convention, 765, 773, 780,
781–3
Helsinki Protocol, 782
meaning of pollution, 780
monitoring, 782
nitrogen oxides, 782
notiﬁcation duties, 773
Oslo Protocol, 782–3
persistent organic pollutants(POPs), 783
Sophia Protocol, 782
sulphur emissions, 782
volatile organic compounds (VOCs),
782
aircraft. See also civil aviation
distress, 476
hijacking, 472, 591, 599, 601–2,
977
hot pursuit, 552
intrusion of airspace: downing ofaircraft, 473–9, 925 n56; force
majeure, 710
military aircraft, 479
nationality, 466, 589
piracy, 549
registration, 466
remote sensing, 487–8
right of passage, 464, 465–6;
international straits, 514
Tokyo Convention, 601
airports, violence, 602© Cambridge University Press

airspace
above continental shelf, 526
conventions, 466, 479
customary law, 74
freedom of the air, 463
intrusions, 473–9, 710
legal framework, 465–9
navigation. See civil aviation
Paris Convention 1919, 464
right of passage, 464, 465–6
sovereignty, 463, 464, 480‘territorial air’, 463
theories, 463–5
usque ad coelum, 464, 479, 480
Al Qaeda, 1028
Alaska, 422, 500, 525
Albaniaand Committee for Prevention of
Torture, 338 n125
Corfu Channel. See Corfu Channel
ICJ jurisdiction, 973
Italian damages, 976 n178
minorities, 274 n153
OSCE mission, 937
recognition, 179
WEU training mission, 1171
Algeria, 899, 930
aliensdenial of justice, 735
enemy aliens, 587
equality of rights, 736
European Convention on
Establishment, 737
expropriation. See expropriation offoreign property
expulsion, 736, 1022
Harvard Draft Convention, 740
standard of treatment, 734–7
treatment, 577, 733–7
UN Declaration, 736
Alma Ata Declaration, 866 n21, 873
n65, 1181
aman, 18
American Declaration of Rights andDuties of Man, 361
Amerindians, 22
amnesty laws, 362
Amsterdam Treaty, 345

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

index
ancient world, 14–18
Andean Pact, 1182 n91
AngolaCivil War, 1117
communist interventions, 1041
intervention in Congo, 1044
Nautilaa dispute, 1023
South African troops in, 1124 n200
UN membership, 1088 n27
UN mission, 1112
UNAVEM, 1112
US recognition, 404
Annan, Koﬁ, 1094
Antarctic Treaty, 90, 457–9, 767, 774
n112Antarctica
common heritage of mankind, 454
criminal jurisdiction of UK
nationals, 588
deﬁnition of environmental damage,
767
demilitarisation, 457
environmental impact assessments,
774 n112
environmental protection, 457, 458
mineral resources, 457–9
terra nullius, 178 n9
territorial claims, 456–7
Aouzou Strip, 915–16
Aouzou Strip Observer Group(UNASOG), 915–16, 1114 n153
apartheid
1973 Apartheid Convention, 235,
284
criminal jurisdiction, 597
Geneva Convention, 236
illegality, 182
impact on Third World, 251
international condemnation, 576
international crime, 235
jus cogens, 720
UN priority, 1083
UN Special Committee, 282
appeals, criminal offences, 322
Aquinas, St Thomas, 21–2, 52, 1014
Arab Charter on Human Rights, 365–6
Arab League
aims, 1183

© Cambridge University Press1227

dispute settlement, 935
human rights, 365
immunities, 1208
in Somalia, 1156 n356
and national liberation movements,
220
organisation, 1183
peacekeeping, 1183
website, 1224
Arab world
Arab–Israeli war, 1111
counter-terrorism, 1052
diplomatic relations with US, 390
ﬂight from Spain, 20
recognition of Israel, 370, 385,
386
arbitration
ICC rules, 946
ICSID, 945
international commercial
arbitration, 956 n37
inter-state arbitration: applicablelaw, 955–6; compromis, 955, 956,
957; consent, 955; corruption,
957; generally, 951–9; Hague
Convention for Paciﬁc Settlementof Disputes, 952; Model Rules,
954, 957; Permanent Court of
Arbitration, 28, 104, 953–4, 958,
1221; procedure, 954–7; reasonsfor awards, 957; revision ofawards, 957–8; use, 958–9; validityof awards, 956–8
League of Nations, 1099
OSCE, 937
archipelagic states, 502–5
archives
consular immunity, 680, 689, 709
former colonies, 898
immunities of internationalorganisations, 1212 n222
state succession, 897–900
Arctic territories, 455–6
Argentina
Beagle Channel dispute, 922 n35
claims over Antarctic, 456
continental shelf, 522
and Falkland Islands, 453

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

1228

index

Argentina (cont.)
Falkland war, 609, 1035, 1124
freedom of association, 315
Gulf War, 1135 n259
human rights, 356
MERCOSUR, 941
torture, 305–6
Aristide, Jean-Bertrand, 1122, 1157
armed conﬂicts
against racist regimes, 1058
Ancient Greece, 16banned weapons, 1068
biological experiments, 1057
and children, 307, 308
choice of weapons, 1065
civil wars, 382, 705–7, 1040–2, 1108,
1121, 1123
civilians, 1055, 1056, 1061, 1063,
1074, 1079, 1080, 1081
colonial liberation, 1058
conduct of hostilities, 1063–8
and cultural objects, 1064
deﬁnition, 1069–72
enforcement of humanitarian law,
1076–9environmental damage, 1068
explosives, 1054, 1065
forced labour, 1062
and freedom of the seas, 544–5
Geneva Conventions. See Geneva
Conventions
and human rights law, 1074–6
incendiary explosives, 1054, 1065
internal conﬂicts, 1072–6
international and internal conﬂicts,
1068–72
irregular forces, 1071
Islamic rules, 18
just war, 1013–17‘Law of Geneva’, 1056
‘Law of the Hague’, 1056, 1063
marine pollution, 808 n316
Martens clause, 1055 n5
mass transfers, 1062
medical personnel, 1080
mercenaries, 283, 597
neutrals: principle, 1066 n64; rights
and duties, 25, 1055

© Cambridge University Press

peacekeeping operations, 1107–17
places of worship, 236, 1064
poisoned gas, 1067
principles, 1079–81
prisoners, 252, 1056, 1058–61, 1077,
1078
proportionality, 1066 n64
reprisals, 1064–5
treaties, and UK law, 138
UN forces, 1115–17
World War I, 30
wounded and sick, 1055, 1056, 1057,
1074
Armenia, 375 n27
arrestconsular personnel, 690
diplomatic personnel, 681
extraterritorial arrests, 604–7
illegal arrest of suspects, 604–7
immunity, 1209
Arusha Convention, 1173
Asia
ASEAN, 1185–6, 1223
counter-terrrorism, 1052
regional organisations, 1185–6
UN Commission, 1092
associated states, 214
Associated States of the West Indies,
214
Association of Caribbean States, 1183
n91
astronauts, rescue, 484
asylumdiplomatic asylum, 2, 675
High Commissioner for Refugees,
282
Latin America, 2, 72–3, 87
right to, 259
attachments, and state immunity,
661–2
Austin, John, 3Australia
Antarctic claims, 456
Antarctic mining, 458
federalism, 199
French nuclear tests. See nuclear
tests
Gulf War, 1135 n259

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

index
international law in municipal
courts, 151 n159, 152
justiciability, 169
Nauru trusteeship, 1187
recognition of governments, 381
title by occupation, 425
tuna ﬁsheries, 570
Austria, 273 n153, 274 n155, 421, 628,
665, 1174
Austro-Hungarian Empire, 862, 878,
884 n126, 900 n210, 902
Azerbaijan, 375 n27
Bahrain, 503, 539, 677, 814, 975, 1135
n259
balance of power, 55–6
Balkans, 1162, 1166
Baltic states, 182–3, 187, 391, 866.
See also speciﬁc states
Bamako Convention, 804
Bandung Conference, 194
Bangladesh, 180, 594, 865, 1088 n27,1135 n259, 1153
Banjul Charter. See African Charter on
Human and Peoples’ Rights
Bank of International Settlement, 223
Bantustans, 181–2, 402, 447
Baranja, 1113
Bay of Granville, 823
bays, 499–501
Beagle Channel, 922 n35
behaviouralism, 54–8
Belaruschange of name, 1088
CIS membership, 216, 1181
EU recognition, 375 n27
state succession, 866 n21
treaty succession, 881
Belgium
and Congo, 995, 1033, 1109–10
criminal jurisdiction, 596 n103
deep sea mining, 564
diplomatic protection ofshareholders, 728
Gulf War, 1135 n259
incorporation of treaties, 161
nuclear power installations, 775
n113, 798 n245

© Cambridge University Press1229

recognition of governments, 381
treaty succession, 875, 878, 879
belligerents. See also armed conﬂicts;
Geneva Conventions
administrations, 367
deﬁnition, 1055
and international law, 1041, 1055
irregulars, 1071
legal personality, 219–20
recognition, 389, 1040
rights of occupation, 422
status, 1059
Bering Sea, 560, 952
Berlin Conference 1871, 1162
Berlin Conference 1884–85, 1162
Bermuda principles, 467–9, 615
Bernadotte, Count, 46
Bessarabia, 391
Biafra, 383
bias, 576
bigamy, 588
Bin Laden, Osama, 1027
biodiversity, 755–6, 777
biological experiments, 1057
Black Sea Straits, 836
Blackstone, William, 129
blockades, 1016, 1024, 1029, 1123, 1127
Bodin, Jean, 21, 25
Boer War, 703, 907
Bogotá Declaration, 489
Bogotá Pact, 934, 977
Bolivia, 356
booby-traps, 1068
Bophuthatswana, 182
borders. See boundaries
Borneo, 993 n297
Bosnia and Herzegovina. See also
Yugoslavia
Agreement for Peace, 209
agreement with Croatia, 214 n190
elections, 1129
human rights, 351 n205, 887, 994
n306
Human Rights Chamber, 209 n166,
353
IFOR, 1142, 1159
international conﬂict, 1071
NATO no-ﬂy zones, 1159

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

1230

index

Bosnia and Herzegovina (cont.)
OSCE responsibilities, 937
recognition, 180, 188, 384
right to self-defence, 1149
Serb forces in, 1128, 1140
SFOR, 1159, 1223
state succession, 867
UN failure, 1107, 1111
UN use of force, 1139–42
unlawful aggression, 392
WEU role, 1171
Bosphorus Straits, 515
Botswana, boundaries, 418, 426
boundaries. See also territorialacquisition; territorial integrity
boundary awards, 419
boundary treaties, 417–19
case law, 105colonial boundaries, 446–51, 872,
873
disputes, 179, 413, 418
and equity, 102rivers, 419, 420, 427, 451–2
territorial integrity, 230, 270–1, 374
treaty succession, 872–5
violations, 1018
Boutros-Gali, Boutros, 1094
boycotts, 1019
Brazil, 489, 525, 941
breach of contract, 635
broadcasting, 487, 548, 550
Brunei, 1185
Bryan treaties, 924
Bulgaria, 273 n153, 473, 700, 842, 980,
1001
Burkina Faso, 440, 447, 450, 451, 872,
965
Burma, independence process, 415
Burundi, 863 n6Bush, George, 1034, 1136 n261
Byelorussia, 196, 244, 259, 1088
Bynkershoek, 25, 106
Byrd, Admiral Richard, 456
Byrd Amendment, 149
Byzantium, 17, 19
cablescontinental shelf, 526© Cambridge University Press

exclusive economic zones, 519
high seas, 543, 552–3, 597
territorial seas, 509
cabotage, 507
Cairo Agreement, 221–2
Calvo doctrine, 734
Cambodia
ASEAN membership, 1185
boundaries, 439
London embassy, 674
Paris Peace Agreement, 208
recognition, 389
and UN, 208, 1117
UNAMIC, 1113
UNTAC, 208, 1113
US hostages, 1033
Cameroon, 539–40, 846, 989, 993, 996
CanadaArctic claims, 455
Arctic zone, 520
border pollution, 761, 763
Canada–US Air Quality Agreement,
783 n167
Cosmos incident, 483
deep sea mining, 564
federalism, 654
Gulf of Maine, 531, 537, 964–5
Gulf War, 1135 n259
Gut Dam, 763
Hudson Bay, 499
international law in municipal
courts, 151–2
minorities, 298
and Namibia, 204
and Quebec, 230, 231, 444
ratiﬁcation of ILO conventions, 198
recognition of governments, 381
shipping, 718
and St Pierre and Miquelon, 534, 538
state immunity, 639
straddling stocks, 559–60
US boundaries, 957
and US extraterritorial jurisdiction,
617 n235
canon law, 18–19
carbon sinks, 787, 789
Carelia, 1002
Caribbean, 214, 1092, 1155, 1183 n91

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

index
CARICOM, 1183 n91
case law, 103–5, 842, 1218
Cassese, A., 271 n271
Catholic Church, 18, 20, 52, 542
ceaseﬁres, 1124, 1146
Central America, recognition of
governments, 379
Central American Court of Justice,233
Central Europe, post-WW1 states,
371
Ceylon, 1022
CFCs, 784, 785, 786
Chad, 873, 915
Channel Islands, 529
Channel Tunnel, 582–3
Charles V, 218
Charter of Economic Rights andDuties of States, 743, 744, 1019
Charter of Paris, 349, 374
Chechnya, 339 n133, 937
chemicals, 805 n301
Cheng, Bin, 74
Chernobyl accident, 796, 797, 798, 803
childrenchild soldiers, 307, 1045, 1076
death penalty, 296
economic exploitation, 307
illegitimacy, 331
justice systems, 308
prostitution, 303
protection, 352
rights. See children’s rights
sale of children, 283
UN Children’s Fund, 282
use of drugs, 307
violence against, 307
and war, 307, 308, 1045, 1076
children’s rights
ACHR, 355
Committee on Rights of the Child,
307–9
Convention on Rights of the Child,
307, 587, 756
European Convention, 343 n161
and Human Rights Committee, 295
names, 307
nationality, 587© Cambridge University Press

1231

OSCE, 349
Vienna Declaration, 261
Chile
Beagle Channel dispute, 922 n35
claims over Antarctic, 456
continental shelf, 522
human rights, 283, 356
Letelier case, 624, 648, 667, 924–5
Peruvian territory, 853
China
ancient civilisations, 15
and Bangladesh, 1088 n27
Belgrade embassy, 673
deep sea mining, 563
and Hong Kong, 878 n97
and international law, 36–8
Japanese invasion, 30, 390
Manchuria, 390
and Nuclear Test Ban Treaty, 797
and peaceful co-existence, 193, 194
recognition of government, 368, 377,
385, 389, 399
Sun Yat Sen incident, 671
and Taiwan, 211
UN Security Council membership,
3, 193, 1084
US embassy and consulates, 673
war with India, 1077
Christianity, and just war, 1013–16
Ciskei, 402
civil aviation
aircraft in distress, 476
Bermuda principles, 467–9, 615
bilateral agreements, 466, 467
Chicago Convention, 465, 475, 476,
478, 589
Chicago International Air Services
Transit Agreement, 466
Chicago International Air Transport
Agreement, 466, 467
choice of forum, 470
conventions, 601–2
hijacking, 472, 591, 599, 601–2, 977
Hong Kong, 912–13
interception over international
territories, 603–4
International Air Transport
Association, 469

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

1232

index

civil aviation (cont.)
International Civil Aviation
Organisation, 466–7, 1096, 1220
intruding aircraft, 473–9
legal framework, 465–9
liability of carriers, 469–72
Montreal Convention, 471–2, 602
Montreal Protocols, 470, 473
offences aboard aircraft, 476, 601
Rome Convention, 473
September 11 attacks, 476, 478
state responsibility, 700
terrorism, 472, 476, 478
Tokyo Convention, 476
Warsaw Convention, 469–73
websites, 1220
civil law systems, 155–60, 578, 586,
588–9
civil wars
interventions in, 1040–2
and recognition of governments, 382
and state responsibility, 705–7
threat to peace, 1123
UN peacekeeping, 1108
and UN Security Council, 1121
civilians
armed conﬂicts, 1055, 1056, 1061,
1063, 1079, 1080
internal conﬂicts, 1074, 1080, 1081
Clarion–Clipperton Ridge, 563, 565
climate change
adverse effects, 767
carbon sinks, 787, 789
clean development mechanism, 789
Convention, 767, 777
generally, 755, 786–9
greenhouse gases, 787, 789
joint implementation, 789
Kyoto Protocol, 789
Marrakesh Accords, 789
precautionary principle, 777
sustainable development, 777
UN Framework Convention, 787–9,
1221
Clipperton Island, 433
coastal trading, 507
cobalt, 561
COCOM, 616© Cambridge University Press

cod war, 518, 936, 988
codes of practice, 111
coercion, and validity of treaties,
848–50Cold War, 33, 36, 1086, 1088, 1107,
1109, 1168
collective rights, 262, 280–1
collective security
breaches of peace, 1124
Chapter VII, 1119, 1120
Chapter VII measures: generally,
1121, 1124–38, 1147; notinvolving force, 1124–33;
sanctions. See UN sanctions; useof force, 4, 1133–8
General Assembly, 1151–4
regional arrangements, 1154–60
UN Security Council: Chapter VII
measures, 1124–38; compatibility
with international law, 1148–51;
determination of situations,
1120–24; generally, 1119–46;
sanctions. See UN sanctions
UN system: assessment, 1147;
constitutionality of forces,
1152–3; generally, 1119–60
use of force in non-enforcement
situations: Congo, 1146; generally,
1138–46; Rwanda, 1144–5; Sierra
Leone, 1145; Somalia, 1142–4;
Yugoslavia, 1139–42
Colombia, 356, 489, 675, 879, 902
colonies. See also decolonisation;
self-determination
application of treaties, 833
Colonial Declaration, 227, 229, 230,
270 n135, 443
and international law, 191
jus cogens, 720
national liberation movements,
220–3
pre-colonial archives, 898
status, 417
treaty succession, 881–4
and UN Charter, 1083
COMECON, 56, 1185
Comesa, 941
comity, 2, 614

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More informationindex
command responsibility, principle, 236
commercial law, development, 19
commissions of inquiry, 923–5
Committee on Principles ofInternational Law, 114
Committee on Rights of the Child,
307–9
common concern of mankind, 455
n253
common heritage of mankind
Antarctica, 454
concept, 413
generally, 453–5
global climate, 455 n253
moon, 454, 485, 790
seabed, 454, 491, 561
common law, 94
common law systems, 151–4, 578, 586,
588
Commonwealth of Independent States
Alma Ata Declaration, 866 21, 873
n65, 1181
Charter, 1181
Council of Heads of State, 1181
Economic Union, 1182
generally, 187, 1181–2
human rights, 216, 352–3
Human Rights Commission, 352
Minsk Agreement, 873 n65, 1181
organisation, 1181
origins, 1181
state succession, 865–6
status, 215–16
Commonwealth of Nations, 215, 702
communist states
approaches to human rights, 259
approaches to international law,
31–8, 94
satellites, 486
trade with, 616
use of force, 849
warships in territorial seas, 510
companies
foreign corporations, unrecognised
states, 401international public companies,
223
limited liability companies, 99© Cambridge University Press1233

nationality, 727–9
privatised utilities, 702
transnational corporations, 224,
1092
competition law, EU, 618–20
compromis
ICJ jurisdiction, 973
international arbitration, 955, 956,
957
COMSAT, 486
conciliation, 925–8
condominiums, 206–7
confederations, 214
Conference on Security andCo-operation in Europe (CSCE),
346–52, 756, 1156 n356, 1179
conﬂict of laws, 1, 573, 579, 588
Congo
Belgian rescue of hostages, 1033
Bogotá Declaration, 489
claim against Belgium, 995
Conciliation Commission, 928
foreign interventions, 1044–5,
1150
human rights, 283
independence, 183
Katanga, 183, 364, 447
Lusaka Agreement, 1146, 1150
MONUC, 1146
threat to peace, 1121
UN peacekeeping, 1109–10
UN role, 1094, 1153
UN use of force, 1146
conquest, 422–4, 453
consensus, 10, 70, 817, 817 n36, 1013
consent
customary law, 85
ICJ jurisdiction, 974–6
and international law, 10, 1013
inter-state arbitration, 955
and state responsibility, 707
conspiracy, 580
Constantinople, 19Constantinople Convention, 461
consular immunity
archives and documents, 680, 689,
709
consular bags, 678, 689

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

1234

index

consular immunity (cont.)
personnel, 690, 709
premises, 688–9, 709
consular protection, 126, 575, 688, 689,
714
consular relations, 361–2, 688–90, 714,
977, 996
consultation, 773, 781–2
contempt laws, 357, 985
contiguity, 445, 455
contiguous zones, 491, 515–17, 582
continental shelf
Aegean Sea, 430
airspace, 526
cables and pipelines, 526
Commission, 524
compensation, 526
deﬁnition, 523–5
delimitation, 73, 81, 100, 527–40
equity, 102
generally, 521–7
Geneva Convention, 81, 522, 523,
524–25, 528, 538: reservations,
823, 827–8
installations, 526
meaning, 521
natural resources, 521
North Sea, 521, 523, 526, 528, 530,
920
opposite and adjacent states,
535–6
rights and duties of coastal states,
525–7
and Third World, 492
title to, 523
trends, 491
Truman Proclamation, 522, 525
contracts, 137, 256, 635, 646–7, 686,
695
Contras, 704, 1071
Convention on Settlement of
Investment Disputes, 233
Cook Inlet, 500
Cook Islands, 214
co-operation
environmental protection, 771–9;
impact assessments, 774–6;
information, 772–4; special© Cambridge University Press

responsibility of developed states,
777
hazardous activities, 770
precautionary principle, 776–7,
792
UN principle, 1082
copper, 561
Corfu Channel
mines, 512, 701
non-compliance of Albania, 996–7
rights in international Straits,
512–13, 974
state responsibility, 699–700, 761,
763
and UN Security Council, 1103,
1104
use of force, 1021
Corpus Juris Civilis, 17–18
corruption, 848, 957
Cosmos incident, 483
Costa Rica, 378, 935
Council of Europe
aims, 319
Commissioner for Human Rights,
320, 342
Committee of Ministers, 332–3
Convention for Peaceful Settlementof Disputes, 936
Convention on Civil Liability for
Environmental Damage, 767
foundation, 319, 1171
Framework Convention on National
Minorities, 340–3
generally, 1171
human rights, 319–21. See also
European Convention on Human
Rightsimmunities, 1206 n196
membership, 1171
and Northern Cyprus, 213
powers, 1171
principles, 319
role, 1171–2
state obligations, 320
structure, 319
treaties, 321, 1171–2
websites, 1220, 1223
counter-claims, 990, 1008

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More informationindex
counterfeiting, 599
countermeasures, 708–10, 853
crimes against humanity, 45, 237, 238,
594, 595–7
crimes against peace, 594, 595, 596–7,
1018
criminal jurisdiction
acts of ofﬁcials committed abroad,
584 n50
Channel Tunnel agreement, 582–3
consular personnel, 690
crimes against humanity, 594,
595–7
crimes against peace, 594, 595
diplomatic immunity, 682
extradition, 610
generally, 578, 579–611
hijacking, 591, 601–4
hostages, 590–1
illegal arrest of suspects, 604–7
Israel–Jordan Peace Treaty, 583
nationality principle, 584–9
outer space, 484 n87
passive personality principle,
589–91piracy, 548, 549, 593
protective principle, 591–2
quasi-universal jurisdiction, 597–8
territorial principle, 579–84
territorial seas, 511
treaties, 597–604
universality principle, 592–7
war crimes, 594–5
criminal offences, appeal rights, 322
criminal responsibility
generally, 234–41
individuals, 234–41, 608, 656, 705
non-retroactivity, 256, 322
states, 720–1
Croatia. See also Yugoslavia
aggression in Bosnia, 1139
agreement with Bosnia, 214 n190
demilitarisation, 1113
demining operations, 1171
Eastern Slavonia, 209 n164, 1113
human rights, 887
and non-discrimination, 384 n65
recognition, 180, 383© Cambridge University Press

1235

Serb forces in, 1128, 1141
state succession, 188, 867
UN sanctions, 1139
UNCRO, 1141
Crown prerogative, 723, 815, 819
cruel and inhuman treatment
ACHR, 355
civilians in wartime, 1061
Convention, 304
death penalty, 299, 332
Northern Ireland, 331
Rwanda, 1074 n103
stoning, 332
war crimes, 595
cruise missiles, 169
Cuba
Chilean policy, 635
downing of civil aircraft, 477
human rights, 283, 356
intervention in Angola, 1041
missile crisis, 8, 1117
secession from Spain, 879
US blockade, 1024
US Cuban assets, 616, 618
US sanctions, 616
Vietnam policy, 636
cultural objects, armed conﬂict, 1064
cultural rights, 287, 292, 345, 352, 355,
363
currency counterfeiting, 599
customary law
acquiescence, 76, 77, 84–6
acts of state, 200
air pollution, 781
binding nature of custom, 49, 50
changes, 83, 84–6
compensation, 750
consensus approach, 70
continental shelf, 523, 532, 540
continuity and repetition, 72
criminal liability for serious breachof human rights, 239
democratic nature, 70
diplomatic immunity, 691
environmental protection, 760–2
evidence from ILC, 113
evidence from treaties, 92
exhaustion of local remedies, 732

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

1236

index

customary law (cont.)
failure to participate in practices,
76–7
ﬁshing zones, 518
generally, 68–88
high seas, 543
hijacking, 602
and human rights, 256–7, 260
humanitarian intervention, 1046
imprecision, 70
indigenous peoples, 279
information on pollution, 774
instant customary law, 70, 74
international watercourses, 760,
836
jus cogens. See jus cogens
law of the sea, 493
and major powers, 76
material facts, 72–7
meaning, 6, 68
necessity, 712
negative customs, 77
non-discrimination principle, 257,
266, 267
non-intervention principle, 1039
opinio juris, 70–1, 74, 80–4, 90,
108–10, 228, 481
protest, 84–6
rebus sic stantibus, 855
regional custom, 73, 87–8
riparian rights, 792
self-defence, 1024–25
state immunity, 639, 647, 656
state practice, 69, 70–1, 77–80, 105,
109
state succession, 890, 893
termination of treaties, 853
territorial seas, 506, 507
time scale, 72
and torture, 257, 303, 599
and treaties, 34, 90
treaty provisions becoming custom,
835–6
treaty succession, 871, 874
and UN resolutions, 1090
uniformity, 73–4
use in municipal courts; Australia,
151 n159; Canada, 152; generally,© Cambridge University Press

160; Germany, 155; Italy, 156;
Netherlands, 156; Portugal, 156;
Russia, 159; South Africa, 157,
158; UK courts, 129, 129–35, 130,131; US courts, 143–6
use of force, 1018
uti possidetis, 446–51, 872
value, 69
customs
contiguous zones, 515, 516, 517
customs unions, 859
exclusive economic zones, 520
posts in neighbouring territories,
584 n49
territorial seas, 507, 509
zones, 516
Cyprusand EU membership, 1174 n52
independence, 274 n155
international law in municipal
courts, 154
Turkish invasion, 1111
Turkish Republic of Northern
Cyprus (TRNC), 212–13, 392, 400
UN mediation, 922 n37, 1104
UN peacekeeping, 1110
Czech Republic, 187, 873 n65, 954,
1174 n52
Czechoslovakia
and Austro-Hungarian Empire, 884
n126
break-up, 178, 187, 884, 885, 1088
Danube dam, 795, 854, 874, 995
German takeover, 391
Gulf War, 1135 n259
and human rights, 259
minorities, 273 n153
Soviet invasion, 34, 36, 56, 1117
state succession, 873 n65, 889, 896,
911
treaty succession, 885
damages
exemplary damages, 718
fair market value, 718, 745, 746
ICJ procedure, 994
loss of proﬁts, 718, 745
pain and suffering, 718

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More informationindex
property damages, and state
immunity, 648
punitive damages, 718
state breaches of international law,
717–19dams, 763, 795, 1065
Danube, 28, 795, 1128, 1163
Danzig, 208 n163, 233, 273 n153
Dar-al-Islam, 18
Dardanelles Straits, 515
Dayton Agreement, 188, 209, 214 n192,
351 n205, 353, 937, 1129, 1142,
1159, 1170
DDT, 783
de Visscher, C., 75, 428–9
death penalty, 296, 299, 322, 331–2,
358
debts, state succession, 900–4
Declaration on Principles ofInternational Law
assistance to rebels, 1043–4
colonies, 417
self-determination, 444, 1037
territorial integrity, 391, 1019, 1021
use of force, 1018
decolonisationagreements, 863
boundaries, 1002
‘clean slate’, 862, 882, 883
Colonial Declaration, 227, 229, 230
creation of new states, 178
devolution agreements, 863, 871,
883–4
impact on Third World, 251
and international law, 40, 43
non-aligned states, 1168
state succession; archives, 898; debts,
904; state property, 894
territorial title, 414
treaty succession, 881–4
UN aim, 1083
UN Committee, 227, 282
deep sea mining. See seabeddefence forces, aircraft, 479
deforestation, 784
demilitarised zones, 874
democracy, 27, 319, 349, 374, 1048
denial of justice, 735© Cambridge University Press

1237

Denmark
Arctic territory, 456
civil jurisdiction, 578
continental shelf, 528
and Eastern Greenland, 434, 438,
439, 455
EU membership, 1174
Gulf War, 1135 n259
and Iceland secession, 900 n210
and Jan Mayen Island, 535, 538
Red Crusader incident, 924
UK–Denmark nuclear agreement,
799
West Indian territories, 422
deportation, 236, 299, 304, 322, 736,
1062
detention
consular personnel, 690
diplomatic personnel, 681
immunity, 1209
military discipline, 299
terrorism, 331
UN working group on, 286
developed countries
and climate change, 789
international law priorities, 733
special responsibility forenvironmental protection, 777
developing countries
and climate change, 789‘debts for nature swaps’, 760
and international law, 38–41
international law priorities, 733
state sovereignty, 35, 39
and UN General Assembly, 1090
development. See also sustainable
development
and environmental protection,
758–60international co-operation, 288
right to development, 280–1, 283
Dikko incident, 676, 677
diplomatic immunity
couriers, 678–9
diplomatic bags, 676–9, 827, 1209
diplomats’ families, 684
driving offences, 682, 690
duration, 684–6

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

1238

index

diplomatic immunity (cont.)
employment contracts, 686
generally, 573
ICJ judges, 962
immovable property, 683
incorporation into UK courts, 129
inviolability of premises, 671–5, 709
Islamic law, 18
and nationality law, 586
personnel, 681–6, 709
property, 679–80, 709
reciprocity, 7, 681
succession, 683
waiver, 687–8
diplomatic protection
exhaustion of local remedies, 730–2
meaning, 722
and nationality, 721–9
obligation of states, 722–4
and state responsibility, 721–9
treatment of aliens, 733–7
diplomatic relations. See also
embassieschanges of regimes, 173, 379
generally, 668–88
heads of missions, 816
ILC work, 113
and recognition of states, 385, 390
settlement of disputes, 918–28
severing, 1022, 1125
special missions, 690–1
Vienna Convention, 89, 90, 669–76,
679–87; ICJ jurisdiction, 977;
reservations, 677
disabled persons, rights, 261, 334
disappeared persons, 317, 356, 358,
362, 1076
discrimination. See non-discriminationdisease, 47 n16, 1045
dispute settlement
categories, 914
diplomatic methods; commissionsof inquiry, 923–5; conciliation,
925–8; generally, 918–28;
mediation, 921–3; negotiations,
918–21
European Convention for PeacefulSettlement of Disputes, 936© Cambridge University Press

GATT, 939–41
ICSID, 942, 943–5
International Chamber ofCommerce, 945–6
international organisations, 928–50
inter-state arbitration. See
arbitrationinter-state tribunals; ICJ. See
International Court of Justice;
ITLOS. See International Tribunal
for the Law of the
Sea (ITLOS); proliferation,
1011–12law of the sea, 568–71
League of Nations, 1099–100
meaning of dispute, 916
NAFTA, 941–3
OSCE, 1180–1
political approach, 915
regional organisations: Africa,
930–4; Americas, 934–5; Arab
League, 935; Europe, 936–8;
generally, 928–38
treaties, 858
UN system: Agenda for Peace, 1094,
1100, 1109 n126, 1156;
assessment, 1117–18; Charter,
1083, 1101; General Assembly,
1103–4, 1105; generally, 1100–18;
observer missions, 1107–17; peace
enforcement, 1101;
peace-building, 1101;
peacekeeping. See peacekeeping
operations; peacemaking, 1101;
preventive diplomacy, 1101;
Secretary-General, 1106–7;
Security Council, 918, 928–9,
1101–5World Bank, 943
WTO, 940–1
distress, 476, 711–12
Dogger Bank incident, 923–4
domestic violence, 301, 302, 358
domicile, 574, 578
Dominican Republic, 315, 356
double criminality, 610
Dover Straits, 514
driving offences, diplomats, 682, 690

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More informationindex
drug trafﬁcking, 597, 599
drugs, 307, 1092
dualism, 29, 122, 123, 129
due diligence, 706, 764, 770
due process
and death penalty, 299
ECHR, 322, 331, 639
foreign nationals, 362
ICCPR, 292
legal representation, 299
and state immunity, 639
Universal Declaration of Human
Rights, 259
Western approach, 250
Duguit, L., 52
dum-dum bullets, 1068
dumping at sea, 804
Dunant, Henri, 1054
dykes, 1065
East Timor
right to self-determination, 229, 970,
976
UN mission, 1114
UN resolutions, 925 n56, 1102 n94
UNTAET, 210, 1114
Eastern Europe
minorities, 277
new states, 185, 319, 374–5, 880
post-WW1 states, 371
regional organisations, 1185
UN Security Council, 1085
and uti possidetis doctrine, 448
Eastern Slavonia, 209 n164, 1113
ECOMOG, 932–3, 1157–8
Economic Community of West African
States. See ECOWAS
economic law, scope of internationallaw, 47
economic restrictions, 1022
Economic Rights Committee, 287–9
ECOSOC, 282, 283, 284, 287, 300, 308,
755, 1091–2, 1095
ecosystems, 794
ECOWAS, 932–3, 941, 1157–8, 1223,
1224
Ecrehos, 428, 435, 973
Ecuador, 489© Cambridge University Press1239

education rights, 260, 286, 310, 322,
352, 357
effectiveness, interpretation of treaties,
842–3
effectivités, 432–6, 450
Egypt1967 Israeli war, 1029
ancient Egypt, 14
diplomatic bags, 676 n309
Gulf War, 1135 n259
Israel–Egypt Peace Treaty, 1111 n134
Suez Canal, 461
treaty with Jordan, 1029
union with Syria, 876 n88, 877, 889
Eichmann, Adolf, 577, 595
Eilat blockade, 1029
El Salvador
boundaries, 450
continental shelf, 522
dispute with Honduras, 992, 993, 994
Gulf of Fonseca, 207, 499–500
human rights, 283, 356
ICJ procedure, 965
UN mission, 1113
electionsobservers, 1112, 1113
right of participation, 256, 272, 352
right to free elections, 322
electronic screening, 677
embargoes, 1019
embassies
abandonment, 674–5
archives and documents, 680
asylum, 2, 72–3, 87, 675
bank accounts, 665, 679
Chinese embassy in Belgrade, 673
employment contracts, 646–7
inviolability, 671–5
Iranian embassy in London, 675
Libyan embassy in London, 673, 677
security, 666
taxation, 679
unsuitable use, 672
US embassy in Tehran, 672
emergency
distress, 711–12
force majeure, 710
state of emergency, 361

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

1240

index

empiricism, 25, 51
employment contracts, 646–8, 686
endangered species, 754
Energy Charter Treaty, 744–5, 759
England. See also United Kingdom
case law, 104
Law Merchant, 19
rise of nation-state, 20
sources of law, 65
environmental impact assessments,
757, 774–6
environmental offences, 597, 720
environmental protection
Antarctica, 457, 458
armed conﬂicts, 1068
atmosphere. See air pollutioncommon but differentiatedresponsibilities, 777
and development, 758–60
education, 756
and free trade, 47
hazardous activities. See hazardous
activities
ICJ Chamber for Environmental
Matters, 754 n2, 964
impact assessments, 757, 774–6
information rights, 757–8
international co-operation, 771–9
international organisations, 755
issues, 753–60
and nationalisations, 743
and nuclear weapons, 708
ozone. See ozone depletion
polluter-pays principle, 779, 792
precautionary principle, 776–7, 792
right to healthy environment, 281,
363, 756–7
rivers. See international watercourses
scope of international law, 44, 47,
59
sea. See marine pollution
space. See outer spacestate responsibility. See international
environmental responsibility
territorial seas, 509
UNEP, 282, 755
websites, 1221
equal pay, 260© Cambridge University Press

equality before the law, 259, 366
equality of states, 6, 120, 192–3, 194,1083, 1089
Equatorial Guinea, 283, 540
equity, 99–103, 956, 983
erga omnes obligations, 116, 229, 257,
265, 360, 836, 886
Eritrea, 418, 436, 953–4, 1113, 1114,
1130
Eritrea/Yemen Tribunal
coastal islands, 445–6
continental shelf, 538–9
ﬁshing in Red Sea, 460
and historic traditions, 41 n141
interpretation of treaties, 840
territorial acquisition, 433, 435
treaty succession, 874
use of PCA, 953
errors, 847, 957
Estonia, 273 n153, 391, 405, 407, 866,
937, 1174 n52
estoppel, 84, 96–7, 217, 243, 437,
439–40Estrada doctrine, 380
Eternal Law, 21
Ethiopiaboundaries, 418, 436
Eritrean boundaries, 953–4
Eritrean secession, 1113
Italian attack, 30
pre-colonial archives, 899
recognition of Italian occupation,
382, 389, 391, 396
Somali claims over, 413, 445, 930
UN mission, 1114
UN sanctions, 1130
ethnic cleansing, 294, 886
ethnic identity, 352
Euro-Atlantic Partnership Council,
1169
Euroﬁna, 223
Europecounter-terrorism, 1052
human rights system, 319–54
regional organisations, 936–8,
1168–82
security, 346–52
UN Commission, 1092

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

index
European Bank for Reconstruction andDevelopment (ERDB), 778 n132,
1208, 1213
European Convention for PeacefulSettlement of Disputes, 918
European Convention for Preventionof Torture, 337–40
European Convention on Human
Rightsapplication to Bosnia, 353
binding treaty, 45
deportation, 737
derogations, 330
EU accession, 345
ﬂexibility, 323
generally, 321–33
incorporation in municipal laws, 322
individuals’ rights under, 233, 327,
328
interpretation, 142, 323, 840, 843
jurisdiction, 323
priority of rights, 256
protocols, 322
reservations, 824
state implementation, 322–3
European Court of Human Rights
admissibility of applications, 325
advisory opinions, 326
case load, 330, 333
causes of action, 329
damages, 327
execution of decisions, 332–3
exhaustion of domestic remedies,329
fact-ﬁnding, 330
friendly settlements, 326–7
generally, 324–33
hearings, 327
individual petitions, 233, 327, 328
interim measures, 326 n38
inter-state applications, 328
jurisdiction, 327, 328
jurisprudence, 330–3
margins of appreciation, 330
procedures, 324–30
referrals to Grand Chamber, 327
third party interventions, 326
website, 1219

© Cambridge University Press

1241

European Court of Justice, 45, 1177–8,
1221
European Economic Area, 1174
European Free Trade Area (EFTA),
1174
European Monetary Union (EMU),
1173
European Parliament, 136, 139, 1173,
1174–5
European Social Charter
Committee of Independent Experts,
335
complaints, 336, 337
generally, 334–7, 1172
implementation, 334
Protocol, 335, 336, 337
ratiﬁcation, 334, 337
reports, 334–5
scope, 334
European Union
aims, 1173
Amsterdam Treaty, 345
CFCs, 786
Charter of Fundamental Rights,
345–6
civil aviation, liability of carriers, 471
Commission, 1176–7, 1195 n141
competition law, 618–20
Constitutional Treaty, 1178
COREPER, 1176
Council of Ministers, 1175–6
Declaration on Yugoslavia, 375
diplomatic protection, 723 n196
dispute resolution, 941
EMU, 1173
enlargement, 1174 n52
environmental impact assessments,
775
European Court of Justice, 45,
1177–8, 1221
European Parliament, 136, 139,
1173, 1174–5
extraterritorial jurisdiction, 618–20
ﬁsheries dispute, 568
generally, 216–17, 1172–8
and Greenland halibut, 560
human rights, 142, 344–6
immunities, 1206 n196

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

1242

index

European Union (cont.)
individual appeal rights, 45
institutions, 1174–8
Large Combustion Directive, 782
n159
legal personality, 217
Maastricht Treaty, 345, 1170, 1173
members, 1174
and NAFO, 559
nature, 46
Nice Treaty, 1175 n57, 1176 n62
nuclear emergencies, 799 n250
origins, 1173
pillars, 217, 1173
polluter-pays principle, 779
qualiﬁed majority voting, 1176
recognition of governments, 381 n52
recognition of states: Baltic states,
866; Bosnia-Herzegovina, 384;
Croatia, 383; former Yugoslavia,
867; new Eastern European states,
185, 374, 880; reuniﬁed Germany,
870 n54
Single European Act, 1173, 1178
Social Chapter, 1173
sources of law, 162
and state immunity, 655
status, 655
supremacy over national laws,
142–3, 162, 217, 1178
Treaty of Rome, 345
and US extraterritorial jurisdiction,
617–18website, 1223
evidence, 95, 984–7
ex injuria jus non oritur, 98, 390
excès de pouvoir, 957
exclusive economic zones
cables and pipelines, 519
claims, 520
conservation, 556
criminal jurisdiction, 520, 582
customary law, 70
freedom of navigation, 519
generally, 517–21
international straits, 513
jurisprudence, 1010
marine pollution, 807© Cambridge University Press

regulation, 491
rights and duties, 519
security zones, 521
and Third World, 492
executions
Geneva Conventions, 1056
internal conﬂicts, 1073
Rwanda, 1074 n103
summary executions, 283, 608
executive certiﬁcates, 172–3
exemplary damages, 718
exhaustion of local remedies
CIS Convention on Human Rights,
352
customary law, 732
denial of justice, 724
and diplomatic protection, 730–2
ECHR, 329
effective remedies, 730–1
Human Rights Committee, 297
ITLOS, 1009
rule, 254–5
UNESCO, 316
waiver, 731–2
expert evidence, ICJ, 985
explosives, 1054, 1065
expropriation of foreign property
bilateral investment treaties, 747–9,750
categories of property, 740
compensation, 743–7; lump-sum
agreements, 749–51
ECHR, 840
generally, 737–52
indirect expropriations, 740–2
legality, 577, 742–3, 746–7
nationalisation, 738
nature, 740–2
non-discrimination, 751
public purposes, 742–3
restitution, 716–17
state responsibility, 703
US retaliation, 1022
extradition, 331–2, 573, 598, 606, 610,
610–11extrajudicial killings, 608
extraterritorial jurisdiction
effects doctrine, 612, 613, 644

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More informationindex
generally, 611–20
opposition, 615–18
reasonableness, 614
United States, 612–18
fair trial/ hearing. See due process
fairness, 60
Falk, R. A., 59–60
Falkland Islands, 179, 452–3
Falkland war, 609, 1035, 1124
family rights, 256, 307, 322, 334
famine, 47 n16
Far East, 15
fault, and state responsibility, 698–700
federal states, 105, 195–201, 574,
654–5
feudalism, 20, 411
Fez Treaty, 194
Fiji, 991
Finland
Aaland Islands, 180, 226, 273 n153,
460
Arctic territory, 456
EFTA, 1174 n53
EU membership, 1174
Soviet invasion, 30, 391, 1166
treaty succession, 875, 879
ﬁshing. See sea ﬁshingFitzmaurice, G., 123, 197
ﬂag states
criminal jurisdiction, 494
and diplomatic protection, 729
documentary evidence, 1010
exceptions to jurisdiction, 548–60,
582
ﬂags of convenience, 545–7, 1010
jurisdiction, 545–8
and straggling stocks, 558–9
Fonseca, Gulf of, 207, 499–500
Food and Agriculture Organisation(FAO), 1098, 1208, 1223
force. See use of force
force majeure, 695, 710–11
forced labour, 1062
foreign currency, 354 n217
foreign direct investment
bilateral treaties, 747–9, 750
ICSID, 942, 943–5© Cambridge University Press

1243

Multilateral Investment Guarantee
Agency, 751–2
risks, 741
World Bank guidelines, 744
foreign law, recognition, 167
foreign ministers, 816
Foreign Ofﬁce certiﬁcates, 172–3
foreign property. See expropriation offoreign property
foreign relations, non-justiciability,
168, 169
forests, 778 n134
Formosa, 211
forum prorogatum, 974
Franceadministrative acts, 94 n108
Algerian archives, 899
Alsace-Lorraine, 878
Antarctic claims, 456
Antarctic mining, 458
Channel Tunnel agreement, 582–3
and Clipperton Island, 433
continental shelf, 529, 530, 823,
827–8
criminal jurisdiction over ships,
581–2, 589–90
deep sea mining, 562, 564, 565
diplomatic bags, 677 n313
and Dover Straits, 514
and Falkland Islands, 452
freedom of the air, 463
ICJ jurisdiction, 980
Indochinese colonies, 439
inﬂuence of legal system, 94
international law in municipal
courts, 156–7
Lac Lanoux, 773, 792 n207, 920
lobster ﬁsheries, 525
Louis XIV, 1162
Minquiers and Ecrehos islands, 428,
435, 973
and Morocco, 194–5
and Namibia, 204
Napoleonic wars, 26, 1162
nationality law, 585, 586
and New Hebrides, 206
no-ﬂy zones in Iraq, 1046, 1136
Norwegians loans, 980

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

1244

index

France (cont.)
nuclear power installations, 775
n113, 798 n245
and Nuclear Test Ban Treaty, 797
nuclear tests. See nuclear tests
outer space information, control,488
and post-war Germany, 205
Rainbow Warrior. See Rainbow
Warriorrecognition of governments, 381;
Cambodia, 389
Revolution, 26
Rhine boundary, 445
rise of nation-state, 20
and Rwanda, 1145
and St Pierre and Miquelon, 534,
538
state immunity, 647
treaty reservations, 823, 827–8
treaty succession, 878
UK–France 1903 arbitrationagreement, 953 n16
UN Security Council membership,1084
UN veto power, 3, 193
US–Vietnam mediation, 922
and Venice, 421
Vietnamese archives, 899
Franck, T. M., 60–1
Franco, Francisco, 382, 396
fraud, and validity of treaties, 848
free trade, and environmental
protection, 47
freedom of assembly, 250, 259, 272,
322, 348, 366
freedom of association, 272, 292, 313,
314–15, 322, 348, 366
freedom of expression, 250, 259, 272,
295, 307, 313, 322, 348, 360–1
freedom of movement, 259, 322
freedom of thought, conscience andreligion, 256, 259, 292, 307, 322,
348
friendly relations and co-operation,
191, 228, 270, 271, 917, 1082
frontiers. See borders
functionalist approaches, 57 n47© Cambridge University Press

Gabon, 561
Gaddaﬁ, Muammar, 657
games theory, 56
GATT
code of conduct, 92
creation, 40, 1167
dispute resolution, 939–41
generally, 1167
Marrakesh Accords, 1167
and Taiwan, 212
Uruguay Round, 939, 940, 1167
Gaza, 221, 222
gender discrimination
afﬁrmative action, 301
Convention on Elimination ofDiscrimination against Women,
300
and Human Rights Committee, 268,
296, 299
nationality law, 587
treaty prohibition, 267
UN Committee on Elimination ofDiscrimination, 300–3
Geneva Convention on High Seas,
491–2, 541, 543, 544, 545, 548,
551, 553, 582, 593, 832
Geneva Conventions
1949 Conventions, 1055
1977 protocols, 1056
applicability, 1056; UN forces,
1115–17
biological experiments, 1057
civilians, 1055, 1056, 1061, 1063
conduct of hostilities, 1063–8
enforcement, 1076–9
importance, 89
individual criminal responsibility,
235–7
and internal conﬂicts, 1072–6
origins, 1054
principle, 1055
prisoners. See prisoners of war
Protecting Powers, 1077
protocols, 1038
and Red Cross, 28, 1078–9, 1163
status of belligerents, 1059
system, 1056–62
universal jurisdiction, 595

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More informationindex
wounded and sick, 1055, 1056, 1057,
1074
genocide
crime against peace, 597
cultural genocide, 263
customary law, 257
erga omnes obligation, 116
ethnic cleansing, 294
ILC Draft Code, 237
individual criminal liability, 608
International Criminal Court, 238
jus cogens, 117
prohibition, 262–6
Rwanda, 263, 264
universal jurisdiction, 595, 596 n103
Yugoslavia, 263–6
Genocide Convention
erga omnes obligations, 265
generally, 262–3
ICJ jurisdiction, 977
normative treaty, 90, 235
origins, 45, 261
reservations, 825–6, 1001
treaty succession, 885, 886, 888,
970
Gentili, Alberico, 23, 106
Gény, François, 52, 71
Georgia, 216, 866 n21, 937, 1114, 1181
geostationary orbit, 488–9
German Democratic Republicabsorption in GDR, 1088
and Nuclear Test Ban Treaty, 393
recognition, 377, 393, 399–400, 406,
869
state succession, 869, 870, 877, 896,
901–2
Germany
20th century aggression, 30, 1166
borders, 206
consular protection, 689, 714, 996
continental shelf, 528
deep sea mining, 564, 565
and diplomatic bags, 676 n309
diplomatic immunity, 686, 691
German settlers in Poland, 905–6
and Iceland ﬁshing zone, 518
and ICJ jurisdiction, 973
inﬂuence of legal system, 94© Cambridge University Press

1245

international law in municipal
courts, 155invasion of Czechoslovakia, 391
Kiel Canal, 461
and Namibia, 204
nationality law, 586
Nautilaa dispute, 1023
Nazism, 52, 274
nuclear power installations, 775
n113, 798 n245
post-war Berlin, 56, 205
post-war status, 204–6, 423
state immunity, 647 n145, 664
state succession, 868–70, 875, 876,
877, 896, 901–2
uniﬁcation, 27, 187, 205
Uniﬁcation Treaty, 870
and Versailles Treaty, 234
war reparations, 233
and WEU, 1170
Gidel, A., 106, 516
glasnost, 1086
global communications, 47 n16
Global Environmental Facility (GEF),
755–6, 783, 789
global warming, 754, 784, 786–9
globalisation, 41, 43, 47
Goa, 1037
good faithinterpretation of treaties, 839
principle of international law, 49,
97–8, 124 n11, 811, 1013
UN Charter, 1083
validity of treaties, 846
good ofﬁces, 921–3, 1104, 1106
Gorazde, 1141
government
departments, immunity, 649
meaning, 653
recognition. See recognition
requirement of statehood, 180
right to participation in, 256, 272,
352
role, 54
government bonds, 643
Granville, Bay of, 823
GreeceAegean Sea continental shelf, 430

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

1246

index

Greece (cont.)
ancient Greece, 15–16
EU membership, 1174
minorities, 273 n153
state succession, 907
UNSCOB, 1109
greenhouse gases, 787, 789
Greenland
continental shelf, 534–5
Eastern Greenland, 433, 434, 435,
438, 439
halibut, 559
sovereignty over, 455
Grenada, US invasion, 1033, 1042
Grotius, Hugo, 23–4, 106, 490, 1015
Guatemala, human rights, 283, 356
guerrillas, 1058
guidelines, 111
Guinea, 520, 532, 537, 713, 1010
Guinea-Bissau, 183–4, 532, 537, 933
Gulf of Fonseca, 207, 499–501
Gulf of Maine, 531, 537, 964
Gulf of Sirte, 500
Gulf War, 1135, 1147
Guyana, 952, 955
habeas corpus, 361
Habsburg, Archduke Ferdinand, 1016
Habsburg empire, 862, 884 n126, 900
n210, 902, 978
Hague Conferences, 28, 960, 1054
Hague Convention for Paciﬁc
Settlement of Disputes 1899, 952
Hague Declaration on Environment,
786
Haile Selassie, Emperor, 396
Haiti
Governors Island Agreement, 1123
human rights, 356
OAS involvement, 1156–7
sanctions, 1122, 1123
threat to peace, 1122–3
UN mission, 1112, 1113
halibut, 559
halons, 785
Hammarskjöld, Dag, 1094, 1110
harbours and ports, 460, 493, 874Hart, H. L. A., 50–1

© Cambridge University Press

Harvard Research drafts, 114
Hawaii, 878
Haw-Haw, Lord, 592
Hayes, Rutherford, 380 n45
hazardous activities
balance of interests, 770–1
co-operation, 770
due diligence, 770
environmental damage from, 768–71
ILC Draft Articles, 768–71
nuclear activities, 796–803
polluter-pays principle, 779
risk, 769
signiﬁcant harm, 769–70
ultra-hazardous activities, 795–805
hazardous substances, 805
hazardous waste
Bamako Convention, 804
Basle Convention, 772, 804
generally, 803–5
information duties, 772
ships, 804
heads of state, 125, 655–9, 692, 816,
847
health, 281, 301, 307
Hebron, 222
Hegel, G. W. F., 28
Helms–Burton legislation, 617, 618
Helsinki Accord, 111
Helsinki Conference 1992, 349
Helsinki Final Act, 269, 346, 347, 374,
918, 1179
Helsinki process, 346, 351
Higgins, R., 272
high seas
1958 Convention. See Geneva
Convention on High Seas
1982 Convention. See UNCLOS
belligerents, 1041
broadcasting, 548, 550
collisions, 552, 582
contiguous zones, 191, 515–17
Convention, 552
deﬁnition, 543
freedom of navigation, 24, 25, 490,
491, 544–5; extent of rights, 543;
warships’ right of approach, 548–9
generally, 542–60

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More informationindex
hot pursuit, 551, 1010
illegal arrests, 605
interception over international
territories, 603–4
international environmental
responsibility, 762
jurisdiction of ﬂag states, 545–8;
exceptions, 548–60; and treaty
rights, 552
oil pollution, 807–9
piracy, 117, 234, 252, 548, 549, 593
pollution. See marine pollution
remote sensing, 488
res communis, 413, 424, 438, 490
slave trade, 548
straddling stocks, 556–60
territorial acquisition, 438
territorial sovereignty, 543
unauthorised broadcasting, 548, 550
hijacking
Bonn Declaration, 603
conventions, 472, 599, 601–2
customary law, 602
Hague Convention, 601–2, 977
jurisdiction, 591, 601–4
and use of force, 1033
historic monuments, 236
history, and territorial integrity, 446
history of international law
19th century, 26–9
20th century, 30–1
ancient world, 14–18
foundations, 22–4
generally, 13–41
Middle Ages, 18–19
naturalism. See natural law
positivism. See positivism
Renaissance, 13, 19–22
Hittites, 14
HIV/AIDS, 1045
Hobbes, Thomas, 25
Holy Roman Empire, 18
Holy See, 218–19, 243
Honduras, 207, 450, 965, 977, 992, 993,
994
Hong Kong, 459, 878 n97, 912–13
hostages
1979 Convention, 590, 600© Cambridge University Press

1247

Geneva Conventions, 236, 1056,
1061
implementation of treaties, 599
internal conﬂicts, 1073
minorities, 1076
rescue, 1033
UN resolution, 1050 n191
US hostages in Iran, 707, 946, 977,
997
US legislation, 590–1
war crimes, 1078
hot pursuit, 551, 552, 1010
housing, 337, 354
Huber, Max, 432, 433
Hudson Bay, 499
human dignity, 58, 59, 247
human rights. See also speciﬁc rights
African Charter, 363–5
American continent, 354–62
Arab Charter, 365–6
and armed conﬂicts, 1074–6
basic principles, 254–7; domestic
jurisdiction, 254, 258; exhaustionof domestic remedies, 254–5, 297;
priorities of rights, 256
Bosnia and Herzegovina, 209 n166,
351 n205, 353, 887, 994 n306
centrality, 259
CIS, 216, 352–3
collective rights, 262, 280–1
Council of Europe, 319
and counter-terrorism, 1052–3
criminal liability, 239
and customary law, 256–7
detention, 286
development, 45, 47, 59, 252–3
ECHR. See European Convention on
Human Rights
emerging right of individuality, 61
and environmental protection,
756–7
and equity, 101
Europe, 319–54
European Social Charter, 334–7
European Union, 142, 344–6
and Helsinki Accord, 111
ideological approaches, 249–52
individual rights, 249–51

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

1248

index

human rights (cont.)
interpretation of treaties, 843–4
margins of appreciation, 330
minimum standards, 736
nature, 247–9
new Eastern European states, 374
non-compliance; high incidence,
248; municipal laws, 357, 362
non-derogable rights, 256
OSCE, 346–52, 1179, 1180
social and economic rights, 251, 259,
286–9
specialised agencies, 312–18
and state immunity, 638–40
state responsibility, 362
and state sovereignty, 47, 191, 574
treaties; obligations, 360;
reservations, 360, 829–31;
succession, 885–9
trust territories, 257–8
UN system; Commission on Human
Rights, 282, 283–5, 1092;
Committee. See Human Rights
Committee; expert bodies,
285–310; generally, 257–81; HighCommissioner, 261;
implementation, 281–310;
international covenants, 227;
involvement, 576; political bodies,
282–5; proliferation ofcommittees, 310, 311;
Sub-commission, 285–6
United States, 145, 361
Universal Declaration of Human
Rights, 49, 259–61
universalism and relativism, 41, 251
Vienna Declaration and Programmeof Action, 260 n74, 261, 311
websites, 1219
Human Rights Committee
decisions, 298–9
establishment, 293
extension of powers, 296–8
general comments, 294–6
generally, 292–9
and ICCPR, 268, 851–2
interim measures of protection, 298
and non-discrimination, 268© Cambridge University Press

powers, 830
reports, 293–4
torture, 303
and treaty reservations, 829–30
and Yugoslav succession, 886–7
humanitarian intervention, 252,
1045–8humanitarian law
conduct of armed hostilities, 1063–8
Conference, 1038
development, 1054–6
enforcement, 1076–9
Geneva Conventions system,
1056–62
internal and international conﬂicts,
1068–72
internal conﬂicts, 1072–6
UN forces, 1115–17
websites, 1222
widespread violations, 1121
Hume, David, 25
Hungary
1947 peace treaty, 1001
Danube dam, 795, 854, 857, 874,
995
and EU membership, 1174 n52
and interpretation of treaties, 842
minorities, 274 n153
recognition of government, 377
and Soviet Union, 56, 1153
Iceland, 518, 544, 900 n210, 927, 936,
988, 997, 1174, 1174 n53
ICSID, 942, 943–5
IFOR, 1142, 1159
illegitimacy, 331, 586
IMF, 40, 897, 1098, 1213
immigration
criminal jurisdiction, 580
immunity, 1209
laws, 574
immigration control
airlines, 702
contiguous zones, 515, 516, 517
territorial seas, 507
immunities
consular. See consular immunity
diplomats. See diplomatic immunity

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

index
international organisations, 691–2,
1205–12
Iran–US Claims Tribunal, 1207–8
states. See state immunity
United Nations, 1003, 1206–12
waiver, 659–61, 687–8, 1212 n223
imprisonment, 256, 322
incendiary devices, 1054, 1065, 1068
independencecolonies. See decolonisation
methods, 415
national liberation movements,
220–3
states, 181–3, 189–92
UN recognition, 1083
unilateral declarations, 182–3
use of force, 415, 1017, 1021–2, 1032
India
ancient civilisations, 15
deep sea mining, 562
Indo-Pakistan dispute 1965, 922
Indo-Pakistan Treaty 1950,
274 n155
Indo-Pakistan wars, 629
international law in municipal
courts, 154invasion of Goa, 1037
manganese production, 561
Pakistani prisoners of war, 1077
and peaceful co-existence, 194
state succession, 865, 889, 903
UNMOGIP, 1109 n125
war with China, 1077
indigenous peoples, 261, 277–9, 286,
359
individuals
emerging right of individuality, 61
human rights, 249–51
international criminal responsibility,
234–41, 608, 656
and international law, 45, 722
state responsibility for acts of private
individuals, 704, 768
status in international law, 232–41
Indonesia
ASEAN membership, 1185
Bogotá Declaration, 489
conﬂict with Malaysia, 993© Cambridge University Press1249

dispute with Netherlands, 1104
and East Timor, 229
expropriations, 740–1, 745
Strait of Lombok, 504
Strait of Sunda, 504
territorial seas, 502
industrial accidents, 805
Industrial Revolution, 27
inﬂammatory projectiles, 1054, 1065,
1068
information
Aarhus Convention 1998, 757–8
air pollution, 781–2
environmental hazards, 772–4, 799
n250
nuclear activities, 798–9
inhuman treatment. See cruel andinhuman treatment; torture
injunctions, 661–2
inquiry commissions, 923–5, 1077
dispute settlement, 1099
Inquisition, 22
Institut de droit international, 114,
371, 757, 774 n109
insurance, 803, 808
insurgentsadministrations, 367
international treatment, 1040
legal personality, 219–20
insurrections
and state responsibility, 705–7,
710–11, 1020
and use of force, 1020
intellectual property, and state
immunity, 649
INTELSAT, 223, 486
Inter-American Bank, 1182 n91
Inter-American Commission on
Human Rights
case load, 356
creation, 355
inter-state complaints, 356
membership, 359
and non-compliant municipal law,
356–7
petitions, 355–6, 359
powers, 355
publications, 356

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

1250

index

Inter-American (cont.)
website, 1219
Inter-American Convention on Human
Rightsdeath penalty, 358
environmental protection, 756
exhaustion of domestic remedies,255
generally, 354–62
individual rights, 233
Inter-American Commission, 355–7
petition rights, 355–6, 359
precautionary measures, 358, 359
priority of rights, 256
range of rights, 354–5
social and economic rights, 357
violence against women, 358
Inter-American Convention on
Torture, 357
Inter-American Court of Human
Rightsadvisory opinions, 360–2
jurisdiction, 359
jurisprudence, 362
procedure, 359–60
voiding municipal laws, 362
website, 1219
international agreements. See treaties
International Air Transport
Association, 469
International Atomic Energy
Authority, 797–8, 799, 801, 804,
1098 n74, 1132, 1138, 1221
International Centre for Settlement of
Investment Disputes (ICSID),
942, 943–5, 1222
International Chamber of Commerce,
945–6, 1222
International Civil Aviation
Organisation, 466–7, 1096,
1220
International Convention on Rightsof the Child, 307, 587, 756
international co-operation. See
co-operation
International Court of Justicead hoc Chambers, 964–5
ad hoc judges, 963© Cambridge University Press

advisory opinions, 938, 1000–5
applicable law, ex aequo et bono,
983
Chamber for Environmental
Matters, 754 n2, 964
Chamber of Summary Procedure,964
counter-claims, 990
evidence; burden of proof, 986;
documentary evidence, 985;
expert evidence, 985; generally,
984–7; improperly obtained,
986–7; judicial notice, 985;
standard of proof, 986; witnesses,
985
force of previous decisions, 103–4
function, 967
generally, 959–1005
judges, 961–4, 1086
judgments, 986; applications forinterpretation, 997; applications
for revision, 997–8; declaratory
judgments, 994; enforcement,
996–7; ﬁnality, 996;
post-judgment examinations,
998–9
jurisdiction, 3, 229, 1197; advisory
jurisdiction, 1000–5; compromis,
973; concurrent jurisdiction, 968;
Connally amendment, 981;
consent of parties, 974–6;
contentious jurisdiction, 972–82;
declarations, 973, 978–82;
formalities, 971–2, 984–7; forum
prorogatum, 974; generally,
966–82; legal disputes, 969–72;
legal interest, 984; optional clause,
978–82; parties, 959, 972–3;
preliminary objections, 983–4;
remedies, 972; reservations,980–2; seisin, 969; third parties,
975–6; treaty provisions, 976–8
non-appearance, 999–1000
obligation to refer to, 1103
organisation, 961–6
origins, 30, 960
pleadings, 966
politicisation, 961–2, 967

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

index
Practice Directions, 966
provisional measures, 968, 987–90
remedies, 972, 994–6
role, 1004–5, 1012; decisions ofSecurity Council, 1148–51
Root–Phillimore plan, 961
Rules of Court, 965–6
sources of law, 66–7, 107
third party interventions, 991–4
and Third World, 39
website, 1221
International Covenant on Civil andPolitical Rights
deportation, 736–7
exhaustion of domestic remedies,
255
Human Rights Committee, 268,
292–9
individual rights, 233
interim measures of protection, 298
non-discrimination, 267
Optional Protocol I, 296–7, 298
priorities, 256
protection of minorities, 274
self-determination, 271, 272
treaty reservations, 830
withdrawal from, 851–2
International Covenant on Economic,
Social and Cultural Rights,
generally, 286–9International Criminal Court, 113,
237, 238, 596, 599, 1219
International Development
Association (IDA), 1098, 1099
international environmental
responsibility
co-operation, 770
customary law, 760–2
damage caused by private
individuals, 768
due diligence, 764
environmental damage, 765, 765–7,
770
generally, 760–71
hazardous activities, 768–71
international watercourses, 760–1
marine environment, 762, 764, 765,
766

© Cambridge University Press

1251

nuclear tests, 761
nuclear weapons, 761
polluter-pays principle, 779
standards, 762–5
state responsibility approach, 771
strict liability, 762–3
International Finance Corporation(IFC), 1098, 1099
International Fund for Agricultural
Development, 1098 n74
International Labour Organisation
binding decisions, 1096
establishment, 30, 253
and federal states, 198
and freedom of association, 314–15
function, 1097
and gender discrimination, 302
human rights, 312–15
and indigenous people, 278
inter-state complaints, 314
Philadelphia Declaration, 312
procedures, 314–15
ratiﬁcation of treaties, 1096
Recommendations, 313
representations, 314
source of law, 114
structure, 313, 1096
US withdrawal, 1096
website, 1223
international law
behaviouralism, 54–8
binding quality, 9, 60, 61
and China, 36–8
common vocabulary, 7communist approaches, 31–8
compliance, 6, 8, 10
Eurocentricity, 43–4, 107
expanding scope, 42–7
force, 4–5
functionalist approach, 57 n47
general theory, 61
history. See history of internationallawhorizontal system, 6in municipal courts. See municipal
courtslack of sanctions, 3, 5
legitimacy, 60

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

1252

index

international law (cont.)
modern theories, 48–64
v. municipal law, 120–1, 124–7
nature, 2–3
new approaches, 53–64
no separation of powers, 12
non-compliant municipal laws, 575,
577
policy-orientated approaches, 57–9,
62, 249
and politics, 11–13, 53
principles, 5, 61, 62, 92–103
regional and universal, 2, 34
sources. See sources of law
and Soviet Union, 31–6
supremacy, 122, 126, 155, 157
system, 5–11
and Third World, 38–41
and UN Security Council, 1148–51
universalism and particularism, 27,
41, 62violations, 6
weaknesses, 12–13
International Law Association, 114,
483 n85, 765 n57, 773, 780, 790–1,
792, 1162
International Law Commission
application of treaties, 835
continental shelf, 81
creation, 112
crimes against humanity, 237
crimes against peace, 596
diplomatic bags, 676 n304, 678–9
diplomatic protection, 723 n197,
726, 727
drafts, 112, 124 n11
environmental damage fromhazardous activities, 764 n50, 765
n57, 767 n70, 768–71, 774
environmental impact assessments,
774 n112
function, 112
Guide to Practice, 823
international criminal court, 237,
599
jurisdictional immunities, 632, 633,
645–6, 653 n174, 655, 658, 659
n214, 660 n218, 663© Cambridge University Press

law of treaties, 197
membership, 112
Model Rules on Arbitral Procedure,
954, 957
reports, 113
reservations to human rights
treaties, 830
rights and duties of states, 189
source of law, 112–14
state responsibility; adoption ofdraft articles, 696; Art. 1, 697, 722;
Art. 2, 697; Art. 4, 701–2; Art. 5,702; Art. 6, 702; Art. 7, 703–4; Art.
8, 704; Art. 9, 705; Art. 10, 706;
Art. 12, 697; Art. 19, 720, 721; Art.
22, 708; Art. 23, 710; Art. 25, 712,
713; Art. 34, 715; Art. 35, 716; Art.
36, 717–18; Art. 37, 720; Art. 41,
721; Art. 42, 713; Art. 44, 722,
730; Art. 48, 714; Art. 49, 709; Art.
50, 709; Art. 51, 710; Art. 52, 710;
work, 113, 696
state succession, 894 n177, 903,
909–11
treaties between states andinternational organisations, 858–9
treaty reservations, 826 n77
treaty succession, 880, 882–3
UN body, 1091
use of force, 849
website, 1217
International Maritime Organisation,
1096, 1098 n74, 1223
International Monetary Fund (IMF),
40, 897, 1098, 1213
international organisations. See also
speciﬁc organisations
accountability, 1204–5
applicable law, 1198
approaches, 1164–5
constituent instruments, 1193–5
dispute resolution; facilities oflimited competence, 938–50;
generally, 928–50; regionalorganisations, 928–38
dissolution, 1213–14
economic institutions, 1167
environmental protection, 755

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More informationindex
and formation of customary law,78–9
growth, 45–6
historical development, 1161–4
immunities, 691–2, 1205–12
internationally protected persons,693
legal issues, 1186–1216
legal personality, 46, 104, 241, 641,
1187–93, 1201
liability of member states, 134, 165,
1201–4membership, state succession,
889–90powers, 1194, 1195–8
privileges, 1205–12
rationalist approach, 1164
realist approach, 1164–5
regional institutions; Africa, 1183–5;
Americas, 1182; Arab League. See
Arab League; Asia, 1185–6;
Eastern Europe, 1185; Europe,
1168–82; generally, 1168–86
responsibility, 134, 165, 1199–1201
revolutionary approach, 1164
succession, 1214–15
treaties with states, 858–60
treaty-making powers, 1197–8
unanimity and majority voting, 826
websites, 1223–4
international personality. See legal
personality
International Seabed Authority, 526,
542, 561, 566–8, 1006
International Telecommunications
Union, 219, 486, 487, 1098 n74
International Telegraphic Union, 28,1163
international territories, 207–11
International Tribunal for the Law of
the Sea (ITLOS)
ad hoc chambers, 1007
ad hoc judges, 1006
advisory opinions, 1009
applicable law, 1006
Chamber of Summary Procedure,
1007
composition, 1006

© Cambridge University Press

1253

counter-claims, 1008
generally, 1005–10
jurisdiction, 1006, 1012
jurisprudence, 1009–10
Mox case, 1009
non-appearance, 1008
parties, 1006
provisional measures, 1007–8, 1009,
1010
seabed disputes, 1007
technical experts, 1006
third-party interventions, 1008
website, 1221
international watercourses
1992 Convention, 792–3
1997 Convention, 793–4
bilateral agreements, 793
boundary rivers, 419, 420, 427,
451–2
customary law, 760, 836
Danube, 28, 795, 1128, 1163
ecosystems, 794
environmental impact assessments,
774 n110
equitable use, 102
generally, 791–5
Helsinki Rules, 792
Lac Lanoux, 773, 792 n207, 920
polluter-pays principle, 792
precautionary principle, 777, 792
servitudes, 460
transboundary impact, 767
treaty succession, 874
internationally protected persons, 600,
681, 692–3
interpretation of treaties
approaches, 839
case law, 842
derogation from ordinary meaning,844
effectiveness, 842–3
generally, 142, 838–44
human rights, 843–4
interpretative declarations, 1197–8
language variations, 844
programmatic approach, 843–4
rules of international law, 841
and subsequent practice, 841

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

1254

index

interpretation of treaties (cont.)
supplementary means, 841–4
teleological approach, 839
travaux préparatoires, 841
UK interpretation, 141–3
Vienna Convention on Law ofTreaties, 839, 841, 844
INTER-SPUTNIK, 486
inter-state courts/tribunals
arbitration, 951–9
ICJ. See International Court ofJustice
ITLOS. See International Tribunal
for the Law of the Sea (ITLOS)
proliferation, 1011–12
intertemporal law, 429–30
interveners, 991–4, 1008
interventions
and African Union, 1184
aid to rebels, 1043–4
aid to state authorities, 1042–3
civil wars, 1040–2
Congo, 1044–5
humanitarian interventions, 1045–8
non-intervention principle, 1039
restoration of democracy, 1048
and state sovereignty, 1039
use of force, 1039–48
investment. See also foreign direct
investment
1965 Convention, ICJ jurisdiction,
977
ICSID, 942, 943–5
Iranhostages, 707
human rights, 283
Inter-Arab Force, 935
Iran–Iraq war, 307, 544, 546–7,
1111–12, 1124
London embassy, 675
mob violence, 706–7
prisoners of war, 925 n56
recognition of government, 406
UNIIMOG, 1127 n221
US downing of aircraft, 477
US embassy siege, 666, 672, 681, 997
US freezing of assets, 616
US sanctions, 616, 617© Cambridge University Press

Iran–US Claims Tribunal
applicable law, 956 n37
dual nationality, 727, 841
expropriations, 741, 746, 750
force of previous decisions, 104
generally, 946–7
immunities, 1207–8
state responsibility for mob violence,706
website, 1222
Iraq
1993 US missile attack in Baghdad,
1034
Gulf War, 1135, 1147
historic claim over Kuwait, 446
human rights, 283
Inter-Arab Force, 935
invasion of Kuwait, 167, 392, 424,
478; collective self-defence, 1036;
environmental damage, 767 n72;
UN Compensation Commission,
947–50; and UN Security Council,
1086–7
Iran–Iraq war, 307, 544, 546–7,
1111–12, 1124
minorities, 273 n153
no-ﬂy zones, 1046, 1136
‘oil for food’ scheme, 948
oil spillage in Persian Gulf, 1068 n76
prisoners of war, 925 n56
Red Cross work, 1079
sanctions, 4, 1126–7
and Security Council, 1124 n200,
1130–3, 1135–8, 1147
threat to peace, 1122 n193
UN blockade, 1127
UN failure, 1107, 1117
UN sanctions, 478, 1126–7, 1131–3
UNIIMOG, 1127 n221
UNIKOM, 1113
UNMOVIC, 1132, 1138
UNSCOM, 1132
US–UK invasion, 1087, 1101
war crimes, 237 n306
weapons of mass destruction,
1131–3western troops in Northern Iraq,1046

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

index
Ireland, 154, 322, 903, 954, 1009, 1174
irregular forces, 1071
Isaiah, 14
Islam, 18
Islamic Conference, 1156 n356
islands
artiﬁcial islands, 520, 543
creation, 419, 420
and exclusive economic zones, 519
rocks, 501, 519
sovereignty over, 445
and territorial seas, 496, 501
Israel1967 war, 1029, 1111
aircraft incidents, 473–4, 475
ancient Israel, 14
Arab claims, 413
border disputes, 179
Entebbe rescue, 1033
exchange of prisoners of war, 1079
interception over international
territories, 604
international law in municipal
courts, 151
intrusion into Lebanese airspace,603
Israel–Egypt Peace Treaty, 1111 n134
Israel–Jordan Peace Treaty, 583
Naharayim/Baqura, 583
occupied territories, 221, 282, 1104
recognition, 370, 379, 385, 386
resolution 242, 1104–5
seizure of Eichmann, 577, 595
state succession, 865
use of Suez Canal, 461
and West Bank, 1061–2
Italy
1930s aggressions, 1166
Albanian damages, 976 n178
city states, 20
deep sea mining, 564 n353
and diplomatic bags, 676 n309
and Ethiopian archives, 899
FAO immunities, 1208
Gulf War, 1135 n259
and ICJ jurisdiction, 973
international law in municipal
courts, 156© Cambridge University Press

1255

occupation of Ethiopia, 30, 382, 389,
391, 396
and Order of Malta, 218
Peace Treaty 1947, 274 n155
state immunity, 647, 665
uniﬁcation, 27
and Vatican City, 219
Venice, 421
and WEU, 1170
ITLOS. See International Tribunal for
the Law of the Sea (ITLOS)
Jammu, 1109 n125
Jan Mayen, 534–5, 538, 927
Japan
1930s aggressions, 1166
archipelagic state, 503
crab ﬁsheries, 525
deep sea mining, 562, 564 n353
international law in municipal
courts, 160
invasion of China, 30, 390
new island, 420
Paciﬁc territories, 202
Russian–Japanese War 1905, 922
and Taiwan, 211
tuna ﬁsheries, 570
Jay Treaty, 733, 952
Jennings, R. Y., 951
Jericho, 222
Jordan, 583, 1029, 1061–2, 1153
journalists, licensing, 360–1
Joyce, William, 592
Judaea, 1061
judicial decisions, 103–5
judicial notice, 985
judicial review, 164, 168–9
jure gentium, 252
jurisdiction
Alien Tort Claims Act, 607–10
civil jurisdiction, 578; andnationality, 588
concurrent jurisdiction; ICJ, 968;
internal waters, 494
criminal. See criminal jurisdiction
domestic jurisdiction, 414–15,
574–6, 1083
ECHR, 323

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

1256

index

jurisdiction (cont.)
enforcement jurisdiction, 572, 573
exclusive economic zones, 520
executive jurisdiction, 577
extraterritorial jurisdiction, 611–20
generally, 572–4
high seas, 545–8
human rights, 254, 258
immunities. See consular immunity;
diplomatic immunity; state
immunity
Inter-American Court of Human
Rights, 359, 360
International Court of Justice, 229,
966–82, 1197
international organisations, 692
International Tribunal for the Law of
the Sea, 1006, 1012
judicial jurisdiction, 578
justiciability, 162–72
law of the sea, 80–1, 130, 131–2
legislative jurisdiction, 576–7
outer space exploration, 483
prescription jurisdiction, 572, 573,
576
principles, 96
ships. See ships
state representatives to internationalorganisations, 691–2
territorial jurisdiction, 190–1, 573
jus civile, 16
jus cogens
breach, 720–1
environmental offences, 720
generally, 117–19
international crimes, 597
modiﬁcation of treaties, 838
prohibition of torture, 303
state immunity, 657, 661
and validity of treaties, 850
jus communis, 454
jus gentium, 16–17
jus sanguinis, 586
jus soli, 586
just war, 1013–17
justicedenial of justice, 724, 735
standards, 735© Cambridge University Press

justiciability
executive certiﬁcates, 172–3
generally, 162–72
and state immunity, 623–34
United Kingdom, 163–9
United States, 169–72
Kadesh, 14
Kant, Immanuel, 122
Kashmir, 1104, 1109 n125
Katanga, 183, 364
Kazakhstan, 375 n27, 881
Kelantan, 627
Kellogg–Briand Pact, 390, 422, 427,
430, 848, 1017
Kelsen, Hans, 48–50, 71, 122–3
Kenya, 413, 445, 489, 863 n6
Kerkenna islands, 530
KFOR, 1160, 1170, 1223
Khomeini, Ayatollah, 707
Khrushchev, Nikita, 33
Kiel Canal, 461, 836
Kinmen, 212
Korean war, 4, 56, 1147, 1201
Korovin, 32
Koskenniemi, M., 59, 62
Kosovo, 209–10, 673, 937, 1046–7,
1129, 1160, 1170
Kowloon, 912
Kozhevnikov, Professor, 34
KuwaitArab League peacekeeping, 1183
diplomatic bags, 677
Iraqi claim over, 446, 1106
Iraqi invasion, 167, 185, 392, 424,
478; collective self-defence, 1036;
environmental damage, 767 n72;
UN Compensation Commission,
947–50; and UN Security
Council, 1086–7, 1126–7, 1130,
1135
marine environment, 774 n112
neutral zone, 207 n155
peacekeeping operations, 1201
and Security Council, 1124 n200
UNIKOM, 1113
Kyoto Protocol, 789
Kyrghyzstan, 375 n27

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

index
Lac Lanoux, 773, 792 n207, 920
Lagash, 14
lakes. See international watercourses
land degradation, 756
land law, 411, 413, 421
landlocked states, 541–2, 544
languages, 340, 346, 844
Laos, 1185
laser weapons, 1068
Lateran Treaty, 219
Latin America
Andean Pact, 1182 n91
and Calvo doctrine, 734
independence, 27
ONUCA, 1112
pre-war crises, 1166
principles of law, 94
regional custom, 2, 73, 87
UN Commission, 1092
UN observer missions, 1112
and UN Security Council, 39,1085
US sphere of inﬂuence, 56
uti possidetis doctrine, 446–51, 872
Latin American Integration
Association, 1183 n91
Latvia, 273 n153, 391, 866, 1174 n52
Lausanne, Treaty of, 904 n230
Lauterpacht, H., 122, 177, 197,
372–3
law
and China, 37
function, 122
natural law. See natural law
nature, 1, 48, 50, 51, 52
positivism. See positivism
universality of law, 17
law enforcers, code of conduct, 304
Law Merchant, 19
law of the sea
1982 Convention. See UNCLOS
British inﬂuence, 75
conferences, 491–2
contiguous zones, 491, 515–17
continental shelf. See continental
shelfdevelopment, 19
dispute resolution, 568–71© Cambridge University Press1257

economic pressures, 492
environmental protection, 762
equity, 102
exclusive zones. See exclusive
economic zones
ﬂux, 491
Geneva Conventions, 104
Grotius, 24high seas. See high seas
ILC origins, 113
International Tribunal for the Law of
Sea (ITLOS), 1005–10
jurisdiction, 80–1, 130, 131–2
landlocked states, 541–2
navigation rules, 79
pollution. See marine pollution
resources. See marine resources; sea
ﬁshing
Rhodian Sea Law, 19
seabed. See seabedterritorial waters. See territorial seas
websites, 1220
law-habit, 11
League of Nations
Covenant, 960, 1016, 1099, 1100
dispute settlement, 1099–1100
dissolution, 1213
establishment, 30, 1016, 1163
failure, 1017
generally, 1166
human rights, 252–3
law of treaties, 825
and Liechtenstein, 195
mandated territories, 201, 252
and minorities, 274
organs, 1166
purpose, 1165
recognition of states, 391
Saar and Danzig, 208 n163
and self-determination, 225
and Soviet Union, 30, 33
treaty succession, 1214 n238
tribunals created by, 978
UN succession, 1004 n366
and use of force, 848
leases of territories, 459, 912
Lebanon, 935, 1153, 1183
legal disputes, meaning, 969–72

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

1258

index

legal personality
acquisition, 241–4
association of states, 214–17
belligerents, 219–20
condominiums, 206–7
foreign corporations, unrecognised
states, 401
generally, 175–7
Holy See, 218–19
individuals, 232–41
insurgents and belligerents, 219–20
international organisations, 46, 104,
241, 1187–93, 1201
international public companies, 223
international territories, 207–11
mandated territories, 201
multiplicity of models, 242
national liberation movements,
220–3
Order of Malta, 218
qualiﬁed personality, 242, 244
right to judicial personality, 256
rights and duties, 245
Saharan Arab Democratic Republic,
213
states, 177–201, 379
Taiwan, 211transnational corporations, 224
trust territories, 201–4
Turkish Republic of Northern
Cyprus (TRNC), 212
UN, 46, 1188–9
Vatican City, 219
legal representation, capital offences,299
legal writers, 105–7
legislative jurisdiction, 576–7
legitimacy, concept, 60, 379
Letelier, O., 624, 648, 667, 924–5
lex specialis derogat legi generali,116
liberalism, 61–2
Liberia
civil war, 933, 1121
ECOMOG, 932–3, 1157–8
ﬂags of convenience, 545, 546
regional involvement, 1157–9
UN mission, 1158

© Cambridge University Press

UN sanctions, 1130
Yamoussoukro Accord, 1158
Libya
and Aouzou Strip, 915–16, 1114
n153
boundaries with Chad, 873, 915
continental shelf, 529, 530, 532–3,
992, 998
diplomatic bags, 677, 827
Gulf of Sirte, 500
and Lockerbie bombing, 988, 1050,
1149–50
London embassy, 673, 677
oil nationalisations, 717, 739, 742,
956 n37
terrorism, 1127
threat to peace, 1121–2
UN sanctions, 670, 1127–8
US air raid, 1033
US sanctions, 616, 617
licensing of journalists, 360–1
Liechtenstein, 195, 725–726,
1174 n53
limited liability companies, 99
Lithuania, 182, 273 n153, 391, 866,
1174 n52
Litvinov Agreement, 147, 387
local government, 343 n161
Locke, John, 25, 248
Lockerbie trial, 580, 988, 1004–5,
1128
locus standi
individuals, 233
International Court of Justice, 984
rules, 117
trust territories, 203
Lombok, Strait of, 504
Lomé Convention, 1173
Louis XIV, 1162
Lusaka Agreement, 1146, 1150
Maastricht Treaty, 345, 1170, 1173
McDougal, M. S., 57
Macedonia. See also Yugoslavia
and Council of Europe, 320
OSCE mission, 937
peacekeeping operations, 1160, 1170
recognition, 384 n67, 386

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

index
and Torture Committee, 338 n125
UN membership, 1088
UNPREDEP, 1141
Machiavelli, Niccolò, 20
Maine, Gulf of, 531, 537, 964
Maine, H., 22
Malaysia, 627, 993, 1185, 1210
Mali, 440, 447, 450, 451, 872, 878, 884,
965
Malta, 532–3, 992, 1174 n52
Malta, Sovereign Order of, 218
Malvinas, 452–3
Manchuria, 390
mandated territories, 30, 201–4, 225,
257–8, 415, 1092
manganese, 560, 561
Marcos, Ferdinand, 656
Mareva injunctions, 661–2
margins of appreciation, 330
Mariana Islands, 202
Marie Byrd Land, 456
marine pollution
1954 Convention, 806–7
due diligence, 764
exclusive economic zones, 807
generally, 553–5, 754, 805–9
London Convention, 804
meaning, 765
oil pollution, 807–9
Oslo Convention, 804
ships, 553–5, 804, 805–9state right to control, 762
territorial seas, 807
UNCLOS, 807
marine resources. See also sea ﬁshingexclusive economic zones, 519
and law of the sea, 491
rights of landlocked states, 542
scope of international law, 47
straddling stocks, 556–60
maritime law. See law of the sea
Maroua Declaration 1975, 125, 846
marriage, right to marry, 322
Marshall Islands, 202
Marshall Plan, 1172
Martens clause, 1055 n5
Marxism, and human rights, 249
Matsu, 212© Cambridge University Press

1259

Mauritania, 413, 446, 1002
Mauritius, 299
Mayotte, 922 n39
mediation, 921–3, 1104, 1106
medical ethics, 304
mercenaries, 283, 597
MERCOSUR, 941, 1183 n91, 1224
Mesopotomia, 14
meteorology, remote sensing, 488
Mexicoand Clipperton Island, 433
criminal jurisdiction, 589
employment standards, 734
expropriations, 743, 746
secession of Texas, 902
standards of criminal justice, 735
state responsibility, 698, 699, 703,
710–11
US boundaries, 427
US–Mexico Claims commissions,
959
US–Mexico General Claims
Convention 1923, 731
MICIVIH, 1122
Micronesia, 202
Middle Ages, 18–19
Middle East
Chapter VII operations, 1120
peacekeeping, 1095, 1109
and UN, 1086, 1091, 1104, 1110,
1153
and UNESCO, 1097
UNTSO, 1109
migrant workers, 261, 309–10, 334, 343
n161
migration, 47 n16
mineral resources
Antarctica, 457–9
moon, 486
oceans, 42, 454
seabed. See seabedmines, 512, 700, 701, 1068
minorities. See protection of minorities
Minquiers, 428, 435, 973
Minsk Agreement, 866 n21, 873 n65
MINURSO, 1113
mistakes, 847, 957
mob violence, 699, 705–7, 710–11

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

1260

index

Moldova, 375 n27, 937
monism, 29, 50, 122Montenegro. See also Yugoslavia
Council of Europe membership,
1171 n37
human rights, 887
state succession, 188, 867, 868
UN membership, 1088, 1089
and UN Security Council, 1128
Montevideo Convention on Rights andDuties of States, 178, 385 n69
Montreal Rules, 765 n57, 773, 780
MONUC, 1045, 1146
moon
common heritage of mankind, 454,
485, 790
demilitarisation, 485
exploration, 481, 485
landings, 479
Moon Treaty, 454, 485, 790
natural resources, 485
moral principles, and internationallaw, 12
MoroccoGulf War, 1135 n259
and SADR, 213
Spanish zone, 696–7
status, 194–5
territorial claims over Algerian
territory, 446, 930
territorial claims over Mauritania,
413, 446
and Western Sahara, 435, 446, 1002
Moscow Mechanism, 351
Mox arbitration, 954, 1009
Mozambique, 1106 n114, 1112
Multilateral Investment Guarantee
Agency, 751–2
municipal courts
evidence of customary law, 79, 105force of rulings, 104
and international law; Australia, 151
n159, 152; Canada, 151–2;
customary law, 129–35, 143–6,
155; Cyprus, 154; doctrine ofincorporation, 129, 130, 131,
133–5, 143; doctrine oftransformation, 129, 130, 131;

© Cambridge University Press

evidence of rules, 131, 132–3;
France, 156–7; generally, 128–62;
Germany, 155; India, 154; Ireland,154; Israel, 151; Italy, 156; Japan,
160; Netherlands, 156; New
Zealand, 152; no conﬂict
presumption, 139–40, 145;
Portugal, 156; Russia, 159; South
Africa, 157–9; treaties, 135–43,
146–51, 155; United Kingdom,
128–43; United States, 143–51
procedural rules, 150
municipal law
basis of international custom, 79
contrary to international law, 356–7,
575, 577
and international law, 120–1, 124–7
justiﬁcation, 50
principles, 94, 95, 99
procedures, 95role of municipal rules ininternational law, 124–7
and validity of treaties, 846–7
murder, 588
mutual assistance, 598
Myanmar, 1107 n114, 1185
NAFTA, 941–3, 1224
names, right to, 307, 355
Namibia
Bantustans, 447
boundaries, 418, 426
control by South Africa, 705
and ICJ judges, 962
intervention in Congo, 1044
mandate succession, 1214 n238
recognition, 392
status, 203–4, 222–3
and UN, 1090, 1091, 1095, 1117,
1153
UN Council for Namibia, 282, 1091
UN Transition Assistance Group,
209 n164, 1112
Napoleonic wars, 26, 1162
national debt, state succession, 900–4
national liberation movements, 220–3
national security, 332, 346–52, 507,
521, 591–2

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More informationindex
nationalisations, 717, 738
nationalism, 27
nationality
aircraft, 466, 589
civil jurisdiction, 588
companies, 727–9
concept, 104, 232–3
criminal jurisdiction, 572–3,
584–9
deﬁnition, 585
and diplomatic protection,
721–9
dual nationality, 726, 727
European Convention, 909
foundations, 586–7
gender discrimination, 587
grants, 574, 575, 585
Hague Convention, 585
and ICSID, 944–5
jus sanguinis, 586
jus soli, 586
municipal laws, 724–6
naturalisation, 587
right to, 256, 307, 584 n52
rights, 584–5
ships, 545, 547, 548, 589, 729,
1010
and state succession, 861, 907–11
statelessness, 908
wives of nationals, 587
NATOcollective self-defence, 1035
dispute settlement, 936
generally, 1168–70
Kosovo intervention, 1046–7
organisation, 1169
origins, 46, 56
post Cold War changes, 1169
troops in UK, 166
and UN Security Council, 1087
and US Afghanistan operations,1028
website, 1224
and Yugoslavia, 1140, 1141, 1142,
1159–60
natural law
equality of states, 193
generally, 24–6

© Cambridge University Press1261

and human rights, 248
inﬂuence of academic writers, 106
and jus cogens, 117
natural rights, concept, 26
and positivism, 48–53
and principles of international law,
93
Renaissance, 21–2
Roman concept, 17
Spanish philosophers, 22, 23
and state sovereignty, 122values, 59
natural resources
moon, 485
sovereignty over, 40, 743, 759
UN Committee, 1092
naturalisation, 587
naturalism. See natural law
Nauru, 179, 1187
navigation. See ships
Nazism, 52, 274
necessity, 712–13, 1031
negotiations, dispute settlement,
918–21
Netherlands
Belgian secession, 879
civil jurisdiction, 578
continental shelf, 528
deep sea mining, 564
dispute with Indonesia, 1104
free trade, 24
Gulf War, 1135 n259
international law in municipal
courts, 156
Lockerbie trial, 580 n36, 1128
nuclear power installations, 775
n113
and Palmas Island, 433
recognition of governments, 381
n52
UK–Netherlands nuclear agreement,
799
New Hebrides, 206
New Territories, 459, 912
New Zealandclaims over Antarctic, 456
and Cook Islands, 214
French nuclear tests. See nuclear tests

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

1262

index

New Zealand (cont.)
and international law in municipal
courts, 152
Nauru trusteeship, 1187
Rainbow Warrior. See Rainbow
Warriorrecognition of governments,
381 n52
tuna ﬁsheries, 570
Newfoundland, 461, 534
Nicaragua
border conﬂicts, 935, 977
collective self-defence, 1036
Contras, 704, 1071
election observers, 1112
Gulf of Fonseca, 207
Honduras/El Salvador case, 207, 992,
993, 994
human rights, 356
ICJ jurisdiction, 980
indigenous people, 279
mines, 701
ONUVEN, 1112
US breach of international law, 608,
701, 704
and US right of self-defence, 1026–7,
1029
US–Nicaragua Treaty of Friendship,
977
Nice Treaty, 1175 n57, 1176 n62
nickel, 561
Niger, 1135 n259
Niger Basin, 794 n226
Nigeria
Civil War, 383, 447, 1043 n154, 1078,
1117
conﬂict with Cameroon, 989, 993,
996
consular protection, 690
continental shelf, 539–40
Dikko incident, 676, 677
involvement in Liberia, 1157
Maroua Declaration, 125, 846
nitrogen oxides, 782
non liquet, 93, 983
non-aggression principle
and developing countries, 39erga omnes obligation, 116© Cambridge University Pressjus cogens, 117
peaceful co-existence, 194
non-discrimination
afﬁrmative action, 296
children’s rights, 295
customary law, 257, 266, 267
ECHR, 322
erga omnes obligation, 116
European Charter of Fundamental
Rights, 345
expropriations, 744, 751
gender. See gender discriminationand Human Rights Committee,
295–6international convention, 266–8
migrant workers, 309
national minorities, 341
principle, 266–9
race. See race discrimination
religion, 267, 268
non-governmental organisations, 253,
287, 311–12, 335, 1162
non-intervention principle, 39, 191,
194, 574, 734, 1021, 1083
Noriega, Manuel, 656, 1042
North Atlantic Co-operation Council(NACC), 1169
North Atlantic Fisheries Organisation(NAFO), 559–60
North Atlantic, straddling stocks,
559–60
North Korea, 368, 925 n56, 1124, 1134,
1147
North Sea
air pollution, 783 n166
continental shelf, 521, 523, 526, 528,
530, 920
pollution, 808 n315
North Vietnam, 377, 385 n70
Northern Ireland, 331, 338 n125
North–South divide, 41
NorwayAntarctic claims, 456
Arctic territory, 456
cession from Sweden, 884
continental shelf, 535, 538, 927
and Eastern Greenland, 434, 438,
439

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

index
EFTA, 1174 n53
European Economic Area, 1174
French loans, 980
Gulf War, 1135 n259
incorporation of treaties into
municipal law, 161
Jan Mayen Island, 535, 538, 927
and Spitzbergen, 455
territorial seas, 496
treaty-making powers, 816
UK–Norway nuclear agreement,
799
nuclear activities
assistance, 799–801
Assistance Convention, 800–1
bilateral agreements, 775 n113, 799
civil liability, 801–3
emergencies, 797, 798–9
and environment, 759
generally, 796–803
information, 798–9
installations, 1065
International Atomic Energy
Authority, 797–8, 799, 801
Mox arbitration, 954, 1009
Nordic Mutual AssistanceAgreement, 799
Nuclear Safety Convention, 801
outer space, 484
radiation accidents, 799
UNDRO, 799
waste, 798 n243, 801 n268, 804–5
nuclear tests
environmental impact assessments,
776
French tests in Paciﬁc, 543–4, 761,
763, 988, 991, 998–9
Test Ban Treaty, 393, 544, 796–7
nuclear weaponsbalance of terror, 42
and environmental protection, 708,
761
and Human Rights Committee, 295
legality, 47 n16, 93 n104, 103,
109–10, 920–1, 983, 1003, 1020,
1065–7
non-proliferation, 375, 797, 920–1,
1067© Cambridge University Press

1263

outer space, 482
proportionality, 708, 1020, 1031
US weapons in Palau, 202
Nuremberg Tribunal
and annexed territories, 423
Charter, 113, 235, 1078
crimes against peace, 595
individual criminal responsibility,
45, 656, 1078
principles, 594, 848
website, 1222
Nyasaland, 884
occupation, and territorial acquisition,
424–9, 438, 441, 453, 955–6
Oder River, 760
OECD
generally, 1172
hazardous waste, 804
membership, 1172
nuclear energy, 802organisation, 1172
and pollution, 772–3, 779, 780
purpose, 1172
website, 1223
offshore installations, 526, 543, 774
n109
oil pollution
civil liability, 808–9
insurance, 808
International Fund, 554, 809
marine pollution, 553–5, 807–9
polluter-pays principle, 779
Torrey Canyon, 553–4, 712, 807
n313
oil rigs, 526
Okhotsk Sea, 560
Oleron, Rolls of Oleron, 19
Oman, 1135 n259
ONUC, 1110
ONUCA, 1112
ONUMOZ, 1112
ONUVEH, 1112
ONUVEN, 1112
opinio juris
establishment, 70–1, 74
generally, 80–4, 90
outer space, 481

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

1264

index

opinio juris (cont.)
Soviet thinking, 34
UNGA decisions, 108–10, 228
Oppenheim, L. F. L., 106
Orders in Council, 141, 654, 1190,
1192, 1211, 1212 n223
Organisation for Security andCo-operation in Europe (OSCE)
Charter of Paris, 1179
Conﬂict Prevention Centre, 1179
dispute settlement, 936–8, 1180–1
Forum for Security Co-operation,
1180
generally, 1179–81
High Commissioner on National
Minorities, 1180
human rights, 346–52
involvement in Yugoslavia, 1160
Ministerial Council, 1180
missions, 937, 1180
Ofﬁce for Democratic Institutionsand Human Rights, 1179, 1180
Ofﬁce for Free Elections, 1179
organisation, 1179–81
Pact on Stability in Europe, 1180
Parliamentary Assembly, 1180
Permanent Council, 1180
Secretariat, 1179
Senior Council, 1180
and terrorism, 1052
website, 1224
and WEU, 1170
Organisation of African Unity
Bamako Convention, 804
and Bantustans, 182
Cairo Declaration, 931
and colonial boundaries, 447
dispute settlement, 930–2
generally, 46
history, 1183
involvement in Liberia, 1158
mediation, 922 n39
principles, 194
recognition of liberation
movements, 220
and SADR, 213
and Somalia, 1156 n356
and treaty succession, 872© Cambridge University Press

Organisation of American States
Charter, 355, 361, 371
Convention against Terrorism, 1052
dispute settlement, 918, 934–5
Esquipulas II agreement, 935
generally, 46, 1182
and Helms–Burton legislation, 617
immunities, 1206 n196
indigenous peoples, 279
involvement in Haiti, 1156–7
mediation, 922 n39organisation, 1182
origins, 1182
Pact of Bogotá, 934, 977, 1182
peacekeeping, 1155
purpose, 1182
Rio Treaty, 1182
website, 1224
Organisation of Eastern Caribbean
States, 1155
Ottoman Empire, 902, 904 n230
outer space
and airspace law, 464, 479
astronauts, rescue, 484
debris, 483, 790
deﬁnition, 480delimitation, 480
demilitarisation, 482, 485, 790
exploration, 481
generally, 479–89
geostationary orbit, 488–9
impact of USSR and US, 76, 479
international environmental
responsibility, 762
jurisdiction, 483
legal framework, 481–6
legal principles, 481
moon, 454, 479, 485, 491, 790
nuclear power, 484
Outer Space Treaty, 481–3, 485, 768,
790
remote sensing, 487–8
res communis, 413, 481
scope of international law, 44
space objects; damage by, 483, 731,
763, 796; recovery, 484
state liability, 482–4, 768
telecommunications, 486–9

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More informationindex
UN Committee on Peaceful Uses ofOuter Space, 479 n70
UN Declarations, 109, 481
websites, 1220
ozone depletion
adverse effects, 766
CFCs, 784, 785
controlled substances, 785
generally, 754, 784–6
halons, 785
Helsinki Declaration, 785
Montreal Protocol, 755, 776,
785–6
Multilateral Fund, 786
precautionary principle, 776
Vienna Convention 1985, 755, 766,
776, 784
PaciﬁcClarion–Clipperton Ridge, 563,
565
new island, 420
straddling stocks, 560
trust territories, 202
UN Commission, 1092
Paciﬁc Islands, 1092 n46
Pact of Paris 1928, 390
pacta sunt servanda, 10, 29, 49, 97, 739,
811–12, 871
Pakistan
Gulf War, 1135 n259
Indo-Pakistan disputes, 274 n155,922
split territory, 180
state succession, 865, 889, 903
treaty succession, 882
UN mission, 1111
UNMOGIP, 1109 n125
Palau, 202, 1093
Palestine
Chapter VII operations, 1120
Conciliation Commission, 928
mandated territory, 1105 n106
occupied territories, 222, 282
partition, 1105 n106
recognition, 179
status, 208, 865
and UN, 208, 222, 1153

© Cambridge University Press

1265

Palestine Liberation Organisation(PLO), 221, 970, 1207
Palmas Island, 421, 425, 430, 433, 435,
761
Panama, 545, 546, 656, 875, 879, 902,
1033, 1042
Panama Canal, 379, 459, 461, 584 n49
papacy, 18, 20, 542
papal states, 218
Papua New Guinea, 685
Paraguay, 356, 941
Paris, Charter of Paris, 349, 374
Paris Conference 1856, 1162
Paris, Treaty of Paris 1898, 421
parliamentary supremacy, 49
particularism, 27, 41, 62
Pashukanis, 32
peace. See also collective security;
dispute settlement
maintenance, 914, 1082
right to peace, 281
threats to peace, 1120, 1147, 1149,
1150
UN peacekeeping. See peacekeeping
operations
peace treaties, 420
peaceful coexistence, 94, 193–4
peacekeeping operations
assessment, 1147
Belgium, 1109–10
Congo, 1109–10, 1146
Croatia, 1113
Cyprus, 1110
functions, 1110–12
generally, 1107–17
Greece, 1109
IFOR, 1142, 1159
KFOR, 1160, 1170, 1223
Kuwait, 1183, 1201
liability of forces, 1201
Liberia, 1158
Macedonia, 1160
Middle East, 1095, 1109
Model Status of Forces Agreement,
1115, 1116
MONUC, 1045, 1146
ONUC, 1110
principles, 1118

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

1266

index

peacekeeping operations (cont.)
regional arrangements, 1155
review, 1118
Rwanda, 1144–5
safety of personnel, 1115
Sierra Leone, 1145
Somalia, 1142–4
and Soviet Union, 8
UNAMIR, 1144–5
UNAMSIL, 1145
UNEF, 1109, 1110 n131, 1111 n134
UNOMIL, 1158
UNOSOM, 1143–4
UNPROFOR, 1139–42, 1159
UNSCOB, 1109
UNTSO, 1109
Yugoslavia, 1139–42
Penghu, 212
peoples, meaning, 230–1, 363–4
perestroika, 35, 1086
Permanent Court of Arbitration, 28,
104, 953–4, 958, 960, 1221
Permanent Court of International
Justice, 30, 103, 960, 961, 978, 980
Persian Gulf, 521, 1068 n76
persistent organic pollutants (POPs),783
personal injuries, and state immunity,
648
Peru, 522, 675, 853
Pescadores, 211
Petersburg Declaration, 1170
Philadelphia Declaration, 312
Philippines, 421, 656, 993, 1185
pillage, 1074, 1076
Pinochet, Augusto, 599, 640, 657
pipelines, 509, 519, 526, 543
piracy, 117, 234, 252, 548, 549, 593
places of worship, 236, 1064
pleadings, ICJ, 966
pluralism, 122
poisoned gas, 1067
Pol Pot, 674
Polandand Austro-Hungarian Empire, 884n126borders, 206
and EU membership, 1174 n52© Cambridge University Press

German Settlers, 905–6
independence, 905
minorities, 273 n153
recognition, 371, 397–8
and Soviet Union, 56
and Universal Declaration of Human
Rights, 259
Upper Silesia, 233, 734, 742, 905–6
polar regions, 455–9. See also
Antarctica
Polisario, 213
politics
and international law, 11–13, 53
political offences, 610
political rights, 250, 256, 352, 363
and recognition of states, 368
polluter-pays principle, 779, 792
Ponsonby rule, 139, 819
population expansion, 47 n16
ports. See harbours and ports
Portugal
African colonies, 220closed seas concept, 24, 490, 542
EU membership, 1174
and Guinea-Bissau, 183–4
international law in municipal
courts, 156
Nautilaa dispute, 1023
North Atlantic ﬁshing, 560
nuclear power installations, 775
n113
and Rhodesia, 391
WEU membership, 1170
positivism
19th century, 28, 29, 44–5
and academic writings, 106
and customary law, 71
doctrine of transformation, 129
and equality of states, 193
generally, 24–6
and human rights, 249
and just war, 1015
and natural law, 48–53
origins, 21
and principles of international law,94, 177
and Soviet Union, 33
and state sovereignty, 71, 121www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

index
possession, territorial acquisition,
424–9, 438, 441
Pound, Roscoe, 51
poverty, 313, 337
Praetor Peregrinus, 16precautionary principle, 776–7, 792
precedent, doctrine, 130, 133, 135,
144
preclusion, 437
pregnant women, death penalty, 296
preliminary objections, 666, 983–4, 998
prescription, acquisitive prescription,
426–7, 428, 453, 543, 955–6
Prevlaka Peninsula, 1113, 1139
price ﬁxing, 619, 620
principles of law
equity, 99–103, 956, 983
estoppel, 84, 96–7, 217, 243, 437,
439–40
generally, 92–103
good faith, 49, 97–98, 124 n11, 811,
839, 846, 1013, 1083
municipal law, 94, 95, 99
pacta sunt servanda, 10, 29, 49, 97,
739, 811–12, 871
procedure and evidence, 95, 150
reparation, 95
res judicata, 95–6, 956 n40
respect for acquired rights, 97,
905–7
printing, 19
prisoners, 304, 1074
prisoners of war
deﬁnition, 1058, 1071
disciplinary offences, 1060
exchange, 1079
Geneva Conventions, 252, 1056,
1058–61
humiliation, 1060
Indian treatment of Pakistaniprisoners, 1077
medical treatment, 1060
obligations, 1060
release, 1060
religious activities, 1060
reprisals, 1060
torture, 1060
war crimes, 1078

© Cambridge University Press

1267

privacy rights, 259, 307, 322
private international law, 1–2
privatised companies, 702
property rights, 26, 248, 322, 354, 366,
412, 739 n278, 1015. See also
expropriation of foreign property
proportionality
conduct of war, 1066 n64
countermeasures, 709, 710
nuclear weapons, 708, 1020, 1031
reprisals, 1023
self-defence, 1031–2
US bombing raid in Libya, 1033
US invasions in Panama andGrenada, 1033
prostitution, 303, 1074
protected states, 194–5
protection of minorities
1919 Peace Treaties, 233, 253, 273
CIS Convention, 352
cultural life, 292, 486
deﬁnition of minorities, 275, 343
European Framework Convention,
340–3
generally, 273–9
High Commissioner on National
Minorities, 350, 1180
Human Rights Committee, 296
indigenous peoples, 261, 277–9
languages, 340
and League of Nations, 225
minimum humanitarian standards,
1076
new Eastern European states, 374
reserves, 275
UN Declaration, 276–7
UN Subcommission, 274, 277, 283,
285
Vienna Declaration, 261
protectorates, 194–5
protests, 84–6, 114
provisional measures
International Court of Justice, 968,
987–90ITLOS, 1007–8, 1009, 1010
public international law. Seeinternational law
public policy, 128, 135, 167

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

1268

index

Pufendorf, Samuel, 24, 106
punishment
collective punishment, 1073, 1074
n103, 1076
corporal punishment, 1074 n103
use of force, 1015, 1016
punitive damages, 718
Qatar, 539, 814, 975, 1135 n259
Quebec, 230, 231, 444
race discrimination. See also
non-discrimination
Committee, 272, 289–92, 312
complaints by states, 290
Convention, 233, 261, 266–8,
289–91and customary law, 257, 266
deﬁnition, 266
federal states, 199
ICJ jurisdiction, 977
United States, 148
Vienna Declaration, 261
war crime, 236
Radbruch, Gustav, 52
radioactive waste, marine pollution,
553
Rainbow Warrior, 694–5, 701, 711–12,
714, 716, 718–19, 852, 853–4
Rameses II, 14
rape, 596, 1073, 1074 n103, 1076
Reagan, Ronald, 1033 n105
Realism, 51–2
rebellions
internal matter, 1040
state assistance, 1043–4
and state responsibility, 699, 705–7,
1020
and use of force, 1020
rebus sic stantibus, 855–6
reciprocity, 7, 1013
recognitioncollective recognition, 388
conditional recognition, 387
constitutive theory, 368, 369, 371–3,
378, 394, 416
de facto and de jure, 377, 379, 382–3,
388, 389© Cambridge University Press

declaratory theory, 369, 371, 373,
378
generally, 367–8
governments, 376–82; Estrada
doctrine, 380; legitimacy doctrine,
379; Tobar doctrine, 379
implied recognition, 384–7
legal effects; generally, 367, 393–408;
internally, 393–4; internationally,
114, 115, 243, 393; UK cases,
394–403; US cases, 404–8
liberation movements, 220
new territories, 414, 437–8, 442
non-recognition doctrine, 390–2
politics, 368
premature recognition, 383–4
retroactivity, 395, 398, 399
states, 178, 185–6, 217; EU practice,374–5; new Eastern European
states, 185, 374; post-WW1, 371;
and statehood, 368, 371; theory
and practice, 368–76; UK practice,370; US practice, 368–9, 373–4,
375
territorial sovereignty over high seas,
543
withdrawal, 388–90
recommendations, 111
Red Crescent, 1057
Red Crossfoundation, 28, 1162
and Geneva Conventions, 28, 1163
humanitarian work, 1078–9
in Iraq, 1126
International Committee, 243,
1076
recognition, 1057
website, 1222
Red Crusader incident, 924
Red Sea, 460
refugees, 2, 354 n217, 356, 675, 1092,
1113. See also asylum
regime change, 173
regional organisations. See also speciﬁcorganisations
Africa, 1183–5
American Continent, 1182
Arab League, 1183

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More informationindex
Asia, 1185–6
dispute resolution, 928–30
Eastern Europe, 1185
Europe, 1168–82
generally, 1168–86
growth, 46
and UN, 1107
regional-international law, 2, 34, 46
Reisman, W. M., 59
religious discrimination, 267, 268
religious freedom, 250, 256, 259, 292,
307, 348, 366
religious intolerance, 283, 284
remedies
domestic remedies. See exhaustionof local remedies
effective remedies, 259, 322
ICJ, 972, 994–6
state breaches of international law,
715–20
torture, 304
remote sensing, 487–8
Renaissance, 13, 19–22
RENAMO, 1106 n114, 1112
reparation
damages, 717–19
declarations, 719–20
ICJ procedure, 994
outer space damage, 483
principles, 95, 97
refusal, 1023
restitution, 716–17, 995
satisfaction, 719, 720
state responsibility, 694, 715–20
reprisals, 5, 708, 853, 1016, 1018
against prisoners of war, 1060, 1064
generally, 1023–4
Geneva Conventions, 1056, 1061,
1064–5, 1077
Republika Srpska, 214 n192
res communis, 413, 424, 438, 454, 481,
490
res judicata, 95–6, 956 n40
research, marine research, 509, 543, 569
reserves, 275, 299
residence, 322, 574, 578
restitution, 716–17, 995
retaliation, 1022

© Cambridge University Press

1269

retorsion, 1022, 1023
Rhine, 445, 794 n226, 1163
Rhodes, 218
Rhodesia, 4, 184, 391–2, 400, 884,
1125
Rhodian Sea Law, 19
right to development, 280–1, 283, 363
right to healthy environment, 281, 363,
756–7
right to liberty, 248, 259, 292, 299, 322,
366
right to life, 248, 256, 292, 307, 321,
331, 332, 355
right to marry, 322
right to peace, 281
right to security, 259, 292, 322, 366
right to social security, 260, 286, 334,
352
right to work, 260, 286, 352
Rio Declarationcommon but differentiatedresponsibilities, 777
consultation, 773
environmental impact assessments,
774 n110human rights, 757
international co-operation, 772
international environmental
responsibility, 762
notiﬁcation of environmental
hazards, 773
precautionary principle, 776
right to development, 281
sovereignty over natural resources,759
sustainable development, 759, 778
riots, 705–7, 1020
risk theory, 698
rivers. See international watercourses
Rolls of Oleron, 19
Roman Empire, 16
Roman law, 155, 412, 862
Romania, 273 n153, 338 n125, 842, 884
n126, 1001
Rome Statute, 238, 596, 599
Rome, Treaty of, 345
Rousseau, C., 106, 123
royal prerogative, 137

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

1270

index

rule of law, 319, 349, 374
Russia. See also Soviet Union
Alaska sale, 422
and Chechnya, 339 n133, 937
CIS membership, 216, 1181
and Committee for Prevention of
Torture, 338 n125
Dogger Bank incident, 923–4
and Eastern Carelia, 1002
international law in municipal
courts, 159
Russian–Japanese War 1905, 922
state succession, 187, 215, 865–6, 897
treaty succession, 881
UN Security Council membership,
3, 193, 865, 1084
Rwandagenocide, 264, 1121
individual criminal responsibility,
656
intervention in Congo, 1044, 1146
and Red Cross, 1079
UN mission, 1116 n165
UN sanctions, 1130
UN use of force, 1144–5, 1147
UNAMIR, 1144–5
UNOMUR, 1144
War Crimes Tribunal, 45, 238,
239–40, 263, 656, 1074 n103,
1219
Saar, 208 n163
SADC, 933–4, 1223
Saharan Arab Democratic Republic,
213–14
St Augustine, 1014
St Germain, Treaty of, 862, 900 n210,903
St Petersburg Declaration, 1054, 1065,
1068
St Pierre and Miquelon, 533–4, 538
Saint-Vincent, 1010
Samaria, 1061
Samoré, Cardinal, 922 n35
sanctions. See UN sanctions
sanitary laws, 515, 516, 517
Sanjak, 937
satellites, 74, 479, 486–9, 487© Cambridge University Presssatisfaction, 719
Saudi Arabia, 207 n155, 259, 638, 677,
814, 1135 n259
scientiﬁc research, marine research,
509, 543, 569
Scilly Isles, 529
Scotland, 498, 580
sea. See high seas; sea ﬁshing; seabed;territorial seassea ﬁshingcontiguous zones, 515
dispute resolution, 569
European Fisheries Convention,
517–18exclusive economic zones, 517
ﬁshing zones, 491, 518, 520
halibut, 559
high seas, 543
straddling stocks, 556–60
territorial seas, 507, 508, 509
seabed1982 Agreement, 564
1987 Agreement, 564–5
common heritage of mankind, 454,
491, 561
dispute resolution, 570, 1007–8
Enterprise, 562, 566
generally, 560–8
international environmental
responsibility, 762
International Seabed Authority, 526,
542, 561, 566–8
pioneer investors, 562
reciprocating states regime, 563–5
rights of coastal states, 523
rights of landlocked states, 542
scope of international law, 47
UN Declaration, 454, 561
UNCLOS, 561–3, 565–6
security. See national security; right tosecurity
Selden, John, 24
self-defence
anticipatory, 1028–30
arrest of diplomats, 681
collective self-defence, 1035–6
competing principles, 708
customary law, 91

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More informationindex
entry into embassies, 673
high seas, 545
hijacking, 604
and intruding aircraft, 476
Iraqi no-ﬂy zones, 1136–7
necessity, 1031
nuclear weapons, 983
pre-emptive attacks, 1028–30
proportionality, 1031–2
right, 1024–32, 1149
and state responsibility, 708
and terrorism, 1027–8
UN Charter, 1025–6
use of force, 4, 5, 1015, 1017
use of nuclear weapons, 93 n104
self-determination
and alien occupation, 270
associated states, 215
Banjul Charter, 270, 363
CIS, 216
and colonial powers, 575
deﬁnition, 230–1
economic self-determination, 40
erga omnes obligation, 116, 229
Falkland Islands, 179, 453
ICCPR, 292
insurgents and belligerents, 220internal self-determination, 273
International Covenants, 286, 292
minorities, 276, 444
principle, 178, 183–5, 225–31
right to, 269–73, 1037
Saharan Arab Democratic Republic,213
settled rule of international law, 39
and territorial integrity, 230, 270–1,
276, 443–6
trust territories, 202
UN Charter, 443, 1083
and use of force, 1018, 1036–9; third
party assistance, 1038–9
Senegal, 1135 n259
separation of powers, 11, 12
September 11 events, 476, 478, 1027,
1051, 1087, 1101, 1122
Serbia. See also Yugoslavia
Council of Europe membership,
1171 n37© Cambridge University Press

1271

human rights, 887
loan repayments, 710
minorities, 273 n153
state succession, 188, 865, 867
UN membership, 1088, 1089
and UN Security Council, 1128
UNTAES, 209 n164
service of process, and state immunity,
666
servitudes, 460–2, 874
sexual harassment, 337
SFOR, 209 n166 , 1159, 1223
Shabra and Shatilla murders, 596 n103
shareholders, diplomatic protection,
728
Sharm el Sheikh memorandum, 222
Sharon, Ariel, 596 n103
Shimonoseki Treaty, 211
ships
collisions, 552, 582
criminal jurisdiction, 136, 581; ﬂag
states, 545–8; internal waters,
493–5; territorial seas, 511–12;
treaty rights, 552
freedom of navigation on high seas,
24, 25, 490, 491, 543, 544–5,
548–9; right of approach bywarships, 548–9, 1009
hospital ships in wartime, 1058
hot pursuit, 551, 1010
nationality, 545, 547, 548, 589, 729,
1010
navigation rules, 509, 704
neutrality rules, 104–5, 125, 952
piracy, 117, 234, 252, 548, 549, 593
pollution. See marine pollution
registration, 1010
right of passage over territorial seas,
498, 504, 506, 507–11, 541
slave trade, 548, 550
stateless ships, 547
unauthorised broadcasting, 548, 550
warships. See warships
Sicily, 218
Sierra Leone, 240–1, 699, 933, 1121,
1130, 1145
Silesia, 233, 273 n153, 734, 742, 905–6
Singapore, 1185

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

1272

index

Single European Act, 1173, 1178
Sirmium, 1113
Sirte, Gulf of, 500
slave trade, high seas, 548, 550
slavery
criminal responsibility, 234
and customary law, 257
early treaties, 252
erga omnes obligation, 116
jus cogens, 117, 720
prohibition, 256, 257, 322
treaties, 322, 597
UN working groups, 286
war crime, 1078
Slavonia, 209 n164, 1113
Slovakia, 187, 873 n65, 1174 n52
Slovenia, 188, 867, 1174 n52
smuggling, 516
social and economic rights
Banjul Charter, 363
Charter of Organisation ofAmerican States, 355
cultural life, 287
Economic Rights Committee,
287–9Inter-American Commission on
Human Rights, 356, 357
International Covenant, 286–9
right to development, 280–1, 283,
363
right to peace, 281
right to social security, 260, 286, 334,
352
right to work, 260, 286, 352
standards of living, 286
Third World, 251
Universal Declaration, 259–60
social exclusion, 337
social security, 260, 286, 334, 352, 683
soft law, 110–12
Solferino, battle of, 1054
Somaliaborder claims, 413, 445
OAU mediation, 930
Red Cross in, 1079
regional interventions, 1156 n356
UN failure, 1107
UN sanctions, 1130

© Cambridge University Pressand UN Security Council, 1121
UN use of force, 1142–4
UNITAF, 1143
UNOSOM II, 1143–4
war crimes, 237
sources of law
custom. See customary law
formulation, 66
generally, 65–7
hierarchy, 115–19
international bodies, 114
International Law Commission,
112–14
judicial decisions, 103–5
jus cogens, 117–19
miscellaneous sources, 107–12
principles, 92–103
soft law, 110–12
treaties. See treaties
UN General Assembly resolutions,
107–10UNCITRAL, 114
UNCTAD, 114
unilateral acts, 114–15
websites, 1217
writers, 105–7
South Africa
and Angola, 1041, 1112 n139, 1124
n200
apartheid. See apartheid
Bantustans, 181–2, 402, 447
Boer War, 703, 907
and Ciskei, 402
election observers, 1113
freedom of association, 315
human rights, 283
international law in municipal
courts, 157–9
mandated territories, 202
and Namibia, 203–4, 223, 392, 705,
1214 n238
and Rhodesia, 391
UN membership, 1089
South Korea, 1124, 1134
South-West Africa, 203–4, 208, 222–3,
1093, 1214 n238
Southern African Development
Community (SADC), 933–4

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More informationindex
sovereign immunity. See state
immunity
Soviet Union. See also Russia
approaches to international law,
31–6
Arctic claims, 455, 456
Chernobyl accident, 798, 803
compensation for UK property, 750
Cosmos incident, 483
deep sea mining, 562, 564
diplomatic bags, 676 n309
dissolution, 36, 43, 178, 185, 187,
215, 319
exclusive economic zones, 521
and Greenland, 455
Gulf War, 1135 n259
human rights, 45, 250, 259
and India–Pakistan dispute 1965,
922
inﬂuence on space law, 76intervention in Angola, 1041
invasions; Afghanistan, 36, 1117;
Baltic states, 182, 391; Bessarabia,
391; Czechoslovakia, 34, 36, 391,
1117; Finland, 30, 391, 1166
and Korea, 1134
Korean aircraft incident, 474, 476
and League of Nations, 30, 33
outer space information, 488
and peaceful co-existence, 193, 194
perestroika and glasnost, 1086
and post-war Germany, 205
protection of minorities, 277
recognition by; UK, 390, 394–5; US,147, 387, 405
satellites, 479
and self-determination, 226
Siberian pipeline, 616
sphere of inﬂuence, 56
state immunity, 630
state succession, 865–6, 873 n65,
896–7
territorial waters, 510
treaty succession, 880–1
UK–USSR investment treaty, 748–9
UN boycott, 1134
and UN peacekeeping, 8
UN Security Council veto, 1084

© Cambridge University Press

1273

space. See outer space
Spain
and American Indians, 22
Civil War, recognition, 382, 396
closed seas concept, 542
and Committee for Prevention of
Torture, 338 n125
Cuban secession, 879
economic harm to foreign
shareholders, 728
EU membership, 1174
and Falkland Islands, 452
genocide jurisdiction, 596 n103
Gulf War, 1135 n259
Inquisition, 22
and Iraq, 1138
and Lac Lanoux, 773, 792 n207, 920
nuclear power installations, 775
n113
and Palmas Island, 421, 425, 430, 433
philosophers of Golden Age, 22
rise of nation-state, 20
state immunity, 665
and straddling stocks, 560
and Western Sahara, 229, 1002
WEU membership, 1170
special missions, 113
speciﬁc performance orders, 661
Spitzbergen, 455
Sri Lanka, 1022, 1079
Stalin, Joseph, 33
Stammler, R., 52
standards, 111
standards of living, 286
stare decisis, 130, 133, 157
state immunity
absolute immunity, 625–8, 657
acts jure gestionis, 625, 633, 634, 665
acts jure imperii, 625, 633, 634, 638,
665
acts of state, 623–34, 643
and Alien Tort Claims Act, 608, 609
breach of contract, 635
burden of proof, 666
commercial transactions, 640–6
contracts of employment, 646–8
customary law, 639, 647, 656
death and personal injuries, 648

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

1274

index

state immunity (cont.)
employment contracts, 646–8
European Convention on State
Immunity, 631 n55, 632 n61,
648, 654, 660 n217, 660 n218,
662
excluded areas, 648–9
federal states, 654–5
foreign army bases, 637
generally, 620–68
heads of state, 655–9
and human rights, 146, 638–40
immune entities, 649–55
immunity from execution, 662–6
and jus cogens, 119
meaning of state, 632
nature, 621–4
and non-justiciability, 623–34
pre-judgment attachments, 661–2
procedure, 666–7
restrictive immunity, 625, 628–31
sovereign and non-sovereign acts,
630–8
state-sponsored terrorism, 667
torts, 648
waiver, 659–61
state of emergency, 361
state responsibility
absolute liability, 700, 703
acquiescence, 713
acts of private individuals, 704
attribution, 700–2
basic principle of international law,694–6
breach of international law, 140,
149
breach of jus cogens, 720–1
civil aviation, 700
civil wars, 705–7
contractual and tortious
responsibility, 695
diplomatic protection, 721–9
due diligence, 706
environment. See international
environmental responsibility
exemptions, 707–13; consent, 707;
countermeasures, 708–10;
distress, 711–12; force majeure,© Cambridge University Press

695, 710–11; necessity, 712–13;
self-defence, 708
expropriation, 703, 716–17
fault, 698–700
federal states, 200–1
genocide, 265
human rights breach, 362
ILC draft articles. See International
Law Commission
insurrections, 703, 704, 705–7
international crimes, 720–1
invocation, 713–14
military action, 698, 700, 701, 705
mines, 700, 701
mob violence, 699, 703, 705–7
and nationality of claims, 721–9
nuclear activities, 801, 803
objective responsibility, 698, 700,
704
outer space activities, 482, 484
private utilities, 702
rebellions, 699
reparation, 694, 715–20
requirements, 696–8
shipping, 704
and state control, 704–5
state organs, 701–2
strict liability, 698
subjective approach, 698–700
treatment of aliens, 733–7
ultra vires acts, 702–4
waiver, 713
wrongful acts, 697; cessation, 714
state sovereignty
case law, 105
CIS, 216
communist approach, 33, 34, 35
and developing countries, 35, 39
and globalisation, 47
and human rights, 47, 191, 574
and jurisdiction, 572
and justiciability, 163
legal principle, 120
and natural law, 26, 122
non-interference, 191–2, 574, 1039
origins, 13, 20, 21
positivists, 71, 121
and territory, 409

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

index
theories, 121–4
Third World, 251
title, 412
UN recognition, 1083
state succession
assets and liabilities; 1983 Vienna
Convention, 864, 890; absorption
and mergers, 896; archives,
897–900; generally, 890–907;
newly independent states, 894,
898, 904; private rights, 905–7;
public debt, 900–4; state property,
891–7
continuity, 865–70
date of succession, 864
devolution agreements, 863, 871,
883–4
Hong Kong, 912–13
issues, 861–4
meaning, 864
membership of internationalorganisations, 889–90
and nationality, 907–11
new Eastern European states, 375
post-war upheavals, 865–70
treaty succession; 1978 Vienna
Convention, 864, 871, 873, 874,
876, 877, 878, 879–80, 881, 882,
883, 885; absorption and merger,
875–8; bilateral treaties, 882;
cession of territories, 878;
devolution agreements, 883–4;
dissolution of states, 884–5;
generally, 871–89; human rights
treaties, 885–9; newly
independent states, 881–4;
personal treaties, 874–5; politicaltreaties, 874–5, 876; secession,
878–81; territorially grounded
treaties, 871–4, 876
unilateral declarations, 871
Yugoslavia. See Yugloslavia
statesassociations, 214–17
basis of international law, 44, 409
centrality, 251
Charter of Economic Rights andDuties, 743, 744, 1019

© Cambridge University Press

1275

creation of statehood, 177–83;
membership of UN, 387, 388; andrecognition, 368, 371
Draft Declaration on rights andduties, 113, 124 n11, 189
equality, 6, 120, 192–3, 194, 1083,
1089
extinction, 185–6
federal states, 105, 195–201, 574,
654–5
fundamental rights, 189–94
independence, 181–3, 189–92
and international law system, 177interventions. See interventions
legal personality, 177–201
meaning, 632, 653 n174
Montevideo Convention on Rights
and Duties of States, 178, 385 n69
papal states, 218
peaceful co-existence, 193–4
practices and customary law, 77–80
protected states, 194–5
protectorates, 194–5
recognition. See recognition
requirements, 178, 416; deﬁned
territories, 179; effective control,
180, 378, 379, 399; independence,
181–3; legal capacity, 181;
permanent population, 178–9
rise of nation-states, 20, 21
self-determination. See
self-determination principle
sovereignty. See state sovereignty
succession. See state succession
territorial integrity, 230, 270–1, 276
treaties with internationalorganisations, 858–60
will of states, 28–9, 437
Stimson doctrine, 391
Stockholm Conference 1972, 755
Stockholm Declaration, 756, 758–9,
762, 771–2
stoicism, 17
Stonecutters Island, 912
straddling stocks, 556–60
straits, international straits, 512–15
Strupp, K., 121
Suárez, Francisco, 23, 1015

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

1276

index

subsidiarity, 330
succession
and diplomatic immunity, 683
international organisations, 1214–15
states. See state succession
Sudan, 283, 447, 1027, 1051, 1122
Suez Canal, 461, 836, 1109
Suez crisis, 1109, 1153
sulphur emissions, 782
Sulu, Sultanate of, 993 n297
Sumeria, 14
summary executions, 283, 608
Sun Yat Sen incident, 671
Sunda, Strait of, 504
Surinam, 356
surveillance, remote sensing, 488
sustainable development
emerging principle, 777–9
and human rights, 757
Inter-Agency Committee on
Sustainable Development, 755
Rio Declaration, 759
trends, 758–60
UN Commission, 755, 1092, 1221
SWAPO, 1112 n139
Sweden, 180, 226, 275, 460, 578, 884,
1077, 1174
Switzerland
and BIS, 224
ECHR reservation, 824, 829
EFTA, 1174 n53
federalism, 197
immunities of internationalorganisations, 1208
nationality law, 586
nuclear power installations, 775
n113, 798 n245
Protecting Power, 1077
and UN membership, 67, 972
Syria, 686, 876 n88, 877, 889, 1135
n259
Tadzhikistan, 375 n27, 937
Taipei, 212
Taiwan, 211, 386, 389–90
Tanganyika, 863 n6, 876 n88, 877
Tanzania, 877
taxation© Cambridge University Press

consular premises, 689
diplomats, 683, 686 n378
embassies, 679
jurisdiction, 576
proceedings, 649
state representatives to internationalorganisations, 692
Tehran Proclamation, 260
telecommunications, outer space,
486–9
terra nullius, 177, 413, 424–6, 432, 438
territorial acquisition
accretion, 419–20, 421, 441
acquiescence, 437, 438, 440, 442
boundary awards, 419
boundary treaties, 417–19
cession, 420–2, 438, 441, 444
conquest, 422–4
critical dates, 431
discovery, 425, 430, 453
effective control, 424–9, 441–2
estoppel, 437, 439–40
intertemporal law, 429–30
and maps, 440–1
methods, 417–41
occupation, 424–9, 438, 441, 453,
955–6
prescription, 426–7, 428, 441, 955–6
recognition, 437–8, 442
sovereign activities, 432–6, 440, 450
subsequent conduct, 436–41
terra nullius, 413, 424–6, 438
time, 429–30
territorial integrity
generally, 443–53
historic grounds for claims, 446
and humanitarian interventions,1046
new factors, 410
principle, 410
and self-determination, 230, 270–1,
276, 443–6
UN Charter, 391, 443, 1017, 1032
and use of force, 391, 1021–2
uti possidetis doctrine, 446–51, 872
territorial seasarchipelagic states, 502–5
baselines, 495–8

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

index
bays, 499–501
cabotage, 507
criminal jurisdiction, 130–1, 582;
foreign ships, 493–5, 511–12
custom control, 507, 509
delimitation, 495–8, 575
enlargement, 491
extent, 73, 82–3, 104, 491, 495–501,
505
ﬁshing rights, 507, 508, 509
generally, 493–512
Geneva Convention, 495, 497, 498,
499, 501, 503, 507, 508, 509, 510,
512, 516, 517, 527
historic bays, 499–500
inﬂuence of great maritime nations,76
internal waters, 493–5
international straits, 512–15
islands, 501
legal nature, 506–7
long-standing regional economic
interests, 498
marine pollution, 807
mines, 701
right of innocent passage, 498, 504,
506, 507–11
security, 507
states with adjacent/opposite coasts,
506, 527
warships, 494–5, 509–11
territorial sovereignty
acquisition of title, 414–17
airspace, 463, 464, 473, 480
concept, 411–13, 761
Falkland Islands, 452–3
high seas, 490, 543
mandated and trust territories, 415
territorial seas, 506
transfer, 421
territories
acquisition. See territorialacquisition
concept in international law, 409–11
discovery, 425, 430
disputes, categories, 413
domestic jurisdiction, 414–15
and jurisdiction, 573© Cambridge University Press1277

leases, 459
res communis, 413, 424, 438, 454,
481, 490
servitudes over, 460–2
sovereignty. See territorial
sovereignty
surrenders, 138, 420–2, 442
terra nullius, 413, 424–6, 432
terrorism
aircraft, 472, 476, 478
challenges, 42Counter-Terrorism Committee,
1051, 1085, 1087, 1222
deﬁnition, 1048, 1049
detention, 331
hijacking. See hijacking
and human rights law, 1052–3
internal conﬂicts, 1073
and international law, 1048–53
jurisdiction, 590–1, 601–4
Libya, 1121–2
motivation, 1048
regional instruments, 1052
Rwanda, 1074 n103
self-defence, 1027–8
September 11, 1101
and state immunity, 667
UN Charter, 1018
UN Committee, 1050
UN conventions, 1049, 1050
UN Declaration, 1049–50
UN resolutions, 1050–2
and US courts, 146
websites, 1222
Thailand, 439, 847, 1185
thalweg principle, 451
Third World
approaches to human rights, 251–2
exclusive economic zones, 492
generally, 38–41
growing importance, 107
and international law, 243international law priorities, 733
and law of the sea, 492
non-alignment, 56
and peaceful co-existence, 193
use of force, 849; for selfdetermination, 1037, 1038

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

1278

index

Third World (cont.)
and warships in territorial seas, 510
Thirty Years War, 1161
threats
anticipatory self-defence, 1028–30
economic and political, 849, 1019
nuclear weapons, 1020
threats to peace, 1120, 1147, 1149,
1150
use of force, 1020
Timor-Leste, 211
title, territorial title, 414–17
Tobar doctrine, 379
Tokyo Convention, 601
Tokyo Tribunal, 45
Torrey Canyon, 553–4, 712, 807 n313
torts, 607–10, 648, 695, 1198
torture
ACHR, 355, 356
Arab Charter, 366
civilians in wartime, 1061
Committee against Torture, 303–7
conﬁdential inquiries, 305
Convention against Torture, 284,
304, 599, 640
crime against humanity, 596
and customary law, 257, 303, 599
deﬁnition, 304
and deportation, 304
ECHR, 322
European Convention on Torture,
337–40Geneva Conventions, 1056, 1057,
1058
Human Rights Committee, 303
individual criminal liability, 608
Inter-American Convention on
Torture, 357
internal conﬂicts, 1073
inter-state complaints, 305
jurisdiction, 599
jus cogens, 303
minorities, 1076
OSCE, 351 n205
prisoners of war, 1060
prohibition, 116, 256, 257, 259,
261
remedies, 304© Cambridge University Press

reports, 305
Rwanda, 1074 n103
Special Rapporteur, 306
and state immunity, 146, 640
UN investigations, 283
US courts, 145, 146
war crimes, 236, 595
trade, scope of international law, 44
trade unions, 309, 331, 334, 357
transfer of technology, deep sea
mining, 566
transformation, doctrine, 129, 130, 131transit rights, 874
Transkei, 181–2
travaux préparatoires, 141, 841, 1026
treason, 588, 592
treaties
1969 Convention. See Vienna
Convention on Law of Treaties
1986 Convention, 858, 859, 860
accession, 820–1
amendment, 837–8
application, 832–6; colonial
application clauses, 833; conﬂicts
between treaties, 833 n106; ergaomnes obligations, 836; non-party
states, 834–6; successive treaties,
833–4; territorial application, 833
between states and internationalorganisations, 858–60
bilateral treaties, breach, 695
boundary treaties, 417–19
breaches, 853–5
categories, 871
Chinese attitude to, 37
consensus, 817
consent, 816–21, 848–50
criminal jurisdiction, 597–604
and custom, 34, 90, 835–6
deﬁnition, 88 n86, 812
denunciation, 851
dispute resolution, 858, 860, 976–8
entry into force, 831–2
extension to non-parties, 92
form, 812–13, 815
formalities, 815–16
functions, 810
growth, 89

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More informationindex
implementation, federations,
198–200
incorporation in UK law, 136
international organisations,
1197–8interpretation. See interpretation oftreaties
interpretative declarations, 822–5
invalidity; coercion, 848–50;
consequences, 850–1; corruption,
848; error, 847; fraud, 848;
generally, 845–51; jus cogens, 850;
municipal law, 846–7
law-making treaties, 88, 89–92
modiﬁcations, 837–8, 852
nature, 811
and non-binding agreements,
813–14
non-retroactivity, 832–3
pacta sunt servanda, 10, 29, 49, 97,
739, 811–12, 871
peace treaties, 420
procedure, 815–21
ratiﬁcation, 90, 818, 819–20; France,
156–7; Japan, 160; Russia, 159;
South Africa, 158; United
Kingdom, 129, 138, 139, 819, 820;
United States, 146–7, 820
recognition; Australian courts,
152–3; Canadian courts, 151;
Cyprus, 154; Dutch courts, 156;
French courts, 156–7; generally,
160–1; German courts, 155;
Indian courts, 154; Irish courts,
154; Japanese courts, 160; New
Zealand courts, 152; Russian
courts, 159; South African courts,
157–9; UK courts, 135–43; US
courts, 146–51
registration, 832
reservations, 118, 821–31;
acceptance, 831; bilateral treaties,
825; compatibility, 825–6, 828;
consent, 825; effect, 827–9;
human rights, 360, 829–31;
impermissible reservations,
828–9; procedure, 826–7; US
federal reservations, 198© Cambridge University Press1279

secret treaties, 832
signatures, 817–18
source of international law, 6,
88–92
succession. See state succession
suspension, 845, 851, 852
termination, 845, 851–8; changes ofcircumstances, 855–8; consent,
851–2; impossibility of
performance, 855; material
breaches, 853–5; subsequent
treaties, 852; treaty provisions as
to, 851–2
terminology, 812
treaty-contracts, 88, 92
treaty-making powers, 815, 846–7
and UK courts; incorporation,
135–43; interpretation, 141–3
voidability, 117, 118, 816, 850
websites, 1220–1
withdrawal, 845, 851
Trianon, Treaty of, 903
tribes, 195, 278, 425
Triepel, H., 29, 121
Trieste, 208
Trinidad, 298
Truman Proclamation, 522, 525
trust territories, 201–4, 220, 257–8,
415, 1086, 1092 n46, 1187
Trusteeship Council, 1092–3
Tunisia, continental shelf, 529, 530,
992, 998
Tunkin, G. I., 32, 33, 34, 94, 250
Turkeycriminal jurisdiction over ships,
581–2, 589–90
Dardanelles and Bosphorus Straits,515
defeat of Byzantium, 19
detention conditions, 339 n133
ECHR reservations, 829
and EU membership, 1174 n52
invasion of Cyprus, 1111
minorities, 273 n153
state succession, 902, 907
torture, 338 n125
Turkish Republic of Northern Cyprus(TRNC), 212–13, 392, 400

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

1280

index

Turkmenistan, 375 n27, 1181
Tuvalu, 179
Uganda, 489, 863 n6, 1033, 1044, 1146,
1150
UkraineCIS membership, 216, 1181
OSCE mission, 937
recognition, 244, 375 n27
state succession, 196, 866 n21, 897
treaty succession, 881
and Universal Declaration of Human
Rights, 259
ultra vires actions, international
arbitration, 957
Umma, 14UN
agencies, 1095–9
Agenda for Peace, 1094, 1100, 1109
n126, 1156
Charter, 89, 92; adoption, 1166;
amendment, 837, 1085, 1086;
compliance with ICJ judgments,
996; constitutional document,
1083; dispute settlement, 917, 921;
good faith, 97; and non UN
members, 835; precedence, 119;and regional organisations, 928;
self-defence, 1025–6;
self-determination principle, 226,
1037; and US courts, 148–9; use offorce, 422–3, 427, 848, 1017–22,
1032
Children’s Fund, 282
collective security. See collective
security
Colonial Declaration, 227, 229, 230,
270 n125, 443
Compensation Commission,
947–50, 1222
Council for Namibia, 222–3
Declaration on Friendly Relations
and Co-operation, 191, 228, 271,
917, 1082
dispute settlement system. See
dispute settlement
economic agencies, 1098

© Cambridge University Press

Economic and Social Council. See
ECOSOC
Economic Rights Committee, 287–9
forces, constitutionality, 1152–3
foundation, 31, 1163, 1166
General Assembly. See UN General
Assembly
Headquarters Agreement, 150, 970,
1206–7, 1210
High Commissioner for Refugees,
282
human rights system; Centre for
Human Rights, 261; Commission
on Human Rights, 282, 283–5;
Committee. See Human Rights
Committee; expert bodies,
285–310; generally, 257–81; HighCommissioner, 261;
implementation, 281–310;
involvement, 576; political bodies,
282–5; proliferation ofcommittees, 310, 311; resources,
310–11; sub-commission, 285–6;
Universal Declaration, 259–61;
Vienna Declaration, 260 n74, 280,
302, 311
immunities, 1003, 1206–12
and international territories, 208–11
and Kosovo, 209–10
legal personality, 46, 1004 n366,
1188–9membership, 46, 387, 388
observer missions, 1107–18
peacekeeping. See peacekeeping
operations
personnel; dismissal, 95;
immunities, 692; safety, 600, 1115
purposes, 1082–3, 1165
sanctions. See UN sanctions
Secretariat, 1093
Secretary-General; disputesettlement, 1106–7, 1108;
generally, 1093–5; mediation, 922,
1094; role, 1094; special
representatives, 1107
Security Council. See UN Security
Councilwww.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More informationindex
system, 1082–4
and terrorism, 1049, 1050
treaty succession, 1004 n366
Trusteeship Council, 202, 1092–3
trusteeship system, 202
website, 1223
UN General Assemblyand collective security, 1151–4
committees, 1091
dispute settlement, 1105, 1108
emergency sessions, 1090–1
generally, 1087–91
membership, 1087–9
powers, 1196
resolutions, 3, 39, 107–10, 1089–91
role, 1090, 1091
special sessions, 1090
voting procedure, 1089
UN sanctions
Afghanistan, 1130
blockades, 1127
Croatia, 1139
Eritrea, 1130
Ethiopia, 1130
generally, 4, 1125–33
Haiti, 1122, 1123
Iraq, 478, 1126–7, 1131–3
Liberia, 1130
Libya, 670, 1127–8
Rhodesia, 4, 1125
Rwanda, 1130
Sierra Leone, 1130
smart sanctions, 1133
UK enforcement, 141
Working Group, 1085
Yugoslavia, 1128–9, 1139, 1159, 1170
UN Security Council
binding resolutions, 108
blockades, 1024
collective security. See collective
security
committees, 1085
compatibility with international law,
1148–51
dispute settlement, 1101–5; failures,
1086–7, 1100; referral of disputes,
918© Cambridge University Press

1281

failures, 1168
generally, 1084–7
and Iraq, 1086–7
and jus cogens, 119membership, 3, 193, 865, 1084, 1085
and PLO, 221
resolutions, 46, 1104–5
role, 3, 928–9, 1085–6
subsidiary organs, 1107
terrorism, 1050–2, 1085, 1087
Third World countries, 39veto powers, 3, 4, 193, 1084, 1105,
1120
voting procedure, 1084–5
UNAMIC, 1113
UNAMIR, 1144–5
UNAMSIL, 1145
UNASOG, 915–16, 1114 n153
UNAVEM, 1112
UNCITRAL, 114, 942, 946, 947
UNCLOSarchipelagic states, 503–4
atmospheric pollution, 783
collisions, 552
conferences, 491
conservation, 557
contiguous zones, 517
continental shelf, 524, 525, 526, 530,
536
deﬁnition of territorial seas, 495
dispute resolution, 568–71, 1005
economic pressures, 492
entry into force, 454, 492
environmental hazards,
information, 772
environmental impact assessments,
774
environmental protection, 554–5,
762, 764
exclusive economic zones, 517,
519–20, 523, 556
ﬁshing rights, 557
ﬂag states, 545, 548, 589, 729
generally, 492–3
high seas, 543; peaceful uses, 544
hot pursuit, 551
implementation, 492

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

1282

index

UNCLOS (cont.)
international straits, 513, 514
landlocked states, 541
marine pollution, 765, 766, 807
piracy, 549, 593
principles, 492
ratiﬁcations, 492
right of innocent passage, 508, 509,
510
seabed, 454, 542, 561–3, 565–6, 898
slave trade, 550
straddling stocks, 557
territorial seas, 498 n32, 527; civil
jurisdiction, 511; criminal
jurisdiction, 511; warships, 512;
width, 505, 506
tribunal. See International Tribunal
for the Law of the Sea (ITLOS)
unauthorised broadcasting, 548, 550
warships’ right of approach, 548–9
UNCRO, 1141
UNCTAD, 114, 1092
UNDRO, 799–800
UNEF, 1109, 1110 n131, 1111 n134
UNEP, 282, 755, 774 n109, 1092
UNESCObinding decisions, 1096
and disappeared persons, 317
dispute resolution, 316
function, 316, 1097
human rights, 315–18
protection of cultural minorities,
486
reports, 317
satellite broadcasting, 487
source of law, 114
and state succession to archives, 897
structure, 316
US withdrawal, 1096
World Heritage List, 199
UNIIMOG, 1127 n221
UNIKOM, 1113
unilateral acts, 114–15
UNISOM II, 1143–4
UNITA, 1112 n138
UNITAF, 1143
United Arab Emirates, 1135 n259

© Cambridge University Press

United Arab Republic, 876 n88, 878,
884, 889
United Kingdom
administrative treaties, 138
airspace, sovereignty, 463
Antarctic claims, 456
archipelagic state, 503
and Bermuda Agreement, 468
bilateral investment treaties, 747–9
bilateral nuclear agreements, 799
and Burmese independence, 415
cession of territory, 138
Channel Tunnel agreement, 582–3
civil jurisdiction, 578
conduct of war, 138
continental shelf, 529, 530
Corfu Channel. See Corfu Channel
criminal jurisdiction, 588, 590;
illegal arrests, 606
Crown prerogative, 723, 815, 819
deep sea mining, 563–4, 565
diplomatic immunity, 674, 677,
679–80, 682, 686
diplomatic protection, 723–4, 729
Dogger Bank incident, 923–4
Dover Straits, 514
EU membership, 1174
executive certiﬁcates, 172–3
extradition, 611 n1987
and extraterritorial jurisdiction, 615
and Falkland Islands, 452–3
ﬁshing limits, 517
and ﬂag states, 546–7
Foreign Ofﬁce certiﬁcates, 172–3
and freedom of the seas, 544–5
and Hong Kong, 459
humanitarian intervention, 1047
n175
and Iceland ﬁshing zone, 518, 936,
988
ICJ jurisdiction, 974–5
immunities of internationalorganisations, 1208, 1211
inhuman treatment, 331
international law in UK courts;
customary law, 129–35; generally,
128–43; no conﬂict presumption,www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More informationindex
139–40; statutory interpretation,
141–3; treaties, 135–43
and Iraq, 1046, 1087, 1101, 1136,
1137, 1138
Irish independence, 903
Jay Treaty, 733, 952
justiciability, 163–9
and law of the sea, 75
legal personality of internationalorganisations, 1190–2
liability of internationalorganisations, 1202–4
Libyan embassy, 673
Minquiers and Ecrehos islands, 428
Mox arbitration, 954, 1009
and Namibia, 204
nationality law, 586
Nauru trusteeship, 1187
and New Hebrides, 206
Nigeria, sale of arms to, 1043 n154
North Atlantic ﬁsheries, 461
and Norwegian territorial seas, 496
nuclear power installations, 798
n245
Orders in Council, 141, 654, 1190,
1192, 1211, 1212 n223
outer space law, 484 n87
and post-war Germany, 205
Privy Council, 702
ratiﬁcation of treaties, 129, 138, 139,
819, 820
recognition of governments, 377–8,
381; Cambodia, 389; China, 399;
Ciskei, 402; GDR, 393, 399–400;
legal effects, 394–403; North
Vietnam, 385 n70; Rhodesia, 400;
Somalia, 403; Soviet Union, 390;
Spain, 382, 397–8; Taiwan, 386;
Turkish Cyprus, 400
recognition of states, 370;
Macedonia, 386
Red Crusader incident, 924
self-defence, 1035
separation of powers, 11
state immunity, 164, 173, 625–30,
639–42, 646–55, 661–3, 666–7
supremacy of Parliament, 49© Cambridge University Press

1283

and Taiwan, 211
territorial seas, 498, 505–6, 514
and Torrey Canyon, 712
torture committed abroad, 599
treaty reservations, 830 n94
and treaty succession, 885
treaty-making powers, 815, 816
UK–France 1903 arbitrationagreement, 953 n16
UN Security Council membership,
3, 193, 1084
and UNCLOS, 563
and USRR expropriations, 750
withdrawal from UNESCO, 1097
n72
United Nations. See UN
United Statesacts of state, 170–2
aircraft intrusions, 710
Alaska purchase, 422
Alien Tort Claims Act, 145, 146,
607–10American Foreign Assistance Act,
1022
and Antarctic, 456
anti-terrorism, 609 n183, 638
anti-trust laws, 612, 614
Arctic territory, 456
Bryan treaties, 924
Byrd Amendment, 149
Canada–US Air Quality Agreement,
783 n167
Canadian boundaries, 957
and China, 211
civil aviation, liability rules, 471
civil jurisdiction, 578
Civil War, 404–5, 952
and consular protection, 689, 714,
995–6
and continental shelf, 521, 522,
525
criminal jurisdiction, 590, 591;
illegal arrests, 605
and Cuba, 8, 616, 1024
D’Amato Act, 617
death row, 332
deep sea mining, 564, 565

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

1284

index

United States (cont.)
diplomatic immunity, 685; driving
offences, 682 n344; waiver, 687
diplomatic relations, with Arabstates, 390
embassies, 672–3
exclusive economic zones, 521
executive agreements, 147
and expropriations, 743, 1022
extradition, 611 n1987
extraterritorial jurisdiction, 612–18
federal government, 197–8
and ﬂag states, 546–7
and Gulf of Maine, 531, 964–5
Gulf War, 1135 n259
Helms–Burton legislation, 616–17,
618
hostages in Cambodia, 1033
and Hudson Bay, 499
human rights, 145–6
human rights treaties, 361
ICJ jurisdiction, 981, 982
immunities of internationalorganisations, 1207, 1211
international law in US courts;
customary law, 143–6; generally,
143–51; legislative presumption,
149–50; no conﬂict presumption,
145; treaties, 146–51
and international terrorism, 603
Iranian airplane incident, 477
Jay Treaty, 733, 952
justiciability, 169–72
and League of Nations, 30
Letelier case, 624, 648, 667, 924–5
Litvinov Agreement, 147
Maine incident, 923 n44
Mexican boundaries, 427
Middle East mediation, 922
and Namibia, 204
and Nicaragua, 608
North Atlantic ﬁsheries, 461
outer space information, 488
outer space law, 76, 484 n87
and Palmas Island, 421, 433
and Panama, 584 n49
and Philippines, 421
and PLO, 1207

© Cambridge University Press

political questions, 169–72
and post-war Germany, 205
race discrimination, 148
ratiﬁcation of treaties, 146–7, 820
recognition of governments, 380;
Angola, 404; Central America,
379; China, 385, 389; communist
states, 368, 370; Estonia, 405, 407;
GDR, 406; Iran, 406; legal effects,
404–8; Soviet Union, 387, 405;
Taiwan, 389–90
recognition of states, 368–9, 373–4;
Baltic states, 391, 866; Bosnia, 384;
new Eastern European states, 375
Revolution, 26
and Russian–Japanese War, 922
separation of powers, 11
sphere of inﬂuence, 56
state immunity, 627–8, 629–30,
638–9, 642–6, 648, 652, 661, 663
state responsibility, Nicaragua, 701
and state succession, 872
and Taiwan, 211
and territorial waters, 500, 501; rightof innocent passage, 510
Texas secession from Mexico, 902
treaty ratiﬁcation, 146–7
treaty reservations, 830 n94
and treaty succession, 875, 878, 880
treaty-making powers, 815
trust territories, 202
and UN; veto power, 3, 193, 1084,
1088 n27; withdrawal fromagencies, 1096, 1097 n72
and UNCLOS, 563
use of force; Afghanistan, 1027,
1028; Grenada, 1033, 1042, 1155;
Iraq, 1034, 1046, 1087, 1101, 1135
n259, 1138; Korea, 1134; Libya,
1033; Nicaragua, 1071; Panama,1033, 1042, 1048; self-defence,
1026–7, 1029; Vietnam, 8, 922,
1041
US–Mexico General Claims
Convention 1923, 731
US–Nicaragua Treaty of Friendship,
977
West Indian territories, 422

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

index
Universal Declaration of Human
Rights, 45, 259–61
Universal Postal Union, 28, 219, 1098
n74, 1163
universality of law, 17, 41
UNMIH, 1113 n153
UNMIK, 209–10
UNMISET, 211
UNMOP, 1113 n152
UNMOVIC, 1132, 1138
UNOMIL, 1158
UNOMUR, 1144
UNOSOM, 1143–4
UNPREDEP, 1141
UNPROFOR, 1139–42, 1159
UNSCOB, 1109
UNSCOM, 1132
UNSMIH, 1113 n153
UNTAC, 208, 1113
UNTAES, 209 n164, 1113 n151
UNTAET, 210, 1114
UNTAG, 1112 n139
UNTSO, 1109
Upper Silesia, 233, 273 n153, 734, 742,
905–6
Uruguay, 298, 356, 941
Uruguay Round, 939, 940, 1167
use of force
acquisition of territories, 422–4
aggression, 238, 392, 596
anti-terrorism, 1048–53
blockades, 1016, 1024
categories, 1022–36
Chapter VII measures, 1133–8
collective self-defence, 1035–6
economic and political threats, 849,
1019
high seas, 1010
independence, 415, 1017, 1021–2
internal order, 1020
interventions, 1039–48
just war, 1013–17
meaning, 849, 1019–21
proportionality, 1015, 1020
protections of nationals abroad,
1032–4
reprisals, 1023–4
retorsion, 1022

© Cambridge University Press1285

role in international law, 4–5
self-defence, 4, 5, 423, 1015, 1017,
1024–32
and self-determination, 1036–9;
third party assistance, 1038–9
territorial integrity, 443, 1017,
1021–2threats, 1020
UN Charter, 422–3, 1017–22
UN forces; Chapter VII measures,
1133–8; non-enforcement
situations, 1138–46
and validity of treaties, 848–50
usque ad coelum, 464, 479, 480
uti possidetis, 446–51, 872
Uzbekistan, 375 n27
values, world order, 58–9
Vanuatu, 207
Vatican City, 218–19
Vattel, Emmerich de, 25–6, 106
Venezuela, 736, 952, 955
Venice, 421
Versailles Treaty, 233, 234, 253, 371,
461, 656, 841 n150
Vienna, Congress of, 26, 28, 1162
Vienna Convention on Consular
Relations, 361–2, 678, 688–90,
977, 996
Vienna Convention on Diplomatic
Relations, 89, 90, 669–76, 677,
679–87, 977
Vienna Convention on Law of Treaties
acceptance, 820
accession, 820–1
adoption, 817
amendments, 837
application; successive treaties, 833;
third parties, 834, 835, 836
approval, 820
binding of parties, 833
breaches of treaty, 853, 854
changes of circumstances, 856–7,
873
consent, 817
consent by exchange of instruments,
818–19consent by signature, 817

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

1286

index

Vienna Convention on Law (cont.)
countermeasures, 708
dispute settlement, 858, 860
entry into force, 811, 832
and federal states, 197
and ILC, 113
interpretation, 839, 841, 844,
1194
jus cogens, 850
meaning of treaty, 88 n86
ratiﬁcation, 820
registration, 832
reservations, 821, 826–8, 829, 830
scope, 814
suspension, 845
termination, 845, 851–2, 855,
856–8
treaties between states andinternational organisations, 859,
860
treaty-making powers, 815, 1197
validity of treaties, 845, 846, 847,
848, 849, 850
void treaties, 850, 851
withdrawal, 845
Vietnam, 8, 56, 377, 385 n70, 899,
1088 n27, 1185
Vietnam war, 594, 922, 1117
violence. See use of force
Vitoria, Francisco, 22, 1014
Vojvodina, 937
volatile organic compounds (VOCs),
782
Vyshinsky, 33
wadis, 451 n241
Waldock, Humphrey, 871–2
war. See armed conﬂicts
war crimes
breach of Geneva Conventions,
1077–8deﬁnition, 1078
Hague Conferences, 1054
individual criminal liability, 608,
1078
individual criminal responsibility,
45, 235© Cambridge University Pressand International Criminal Court,
238
International Law Commission, 237
international tribunals, 1130
UK jurisdiction, 588
universal jurisdiction, 594–5, 597
Warsaw Convention, 469–73
Warsaw Pact, 46, 56, 1035, 1087, 1168,
1185
warships
jurisdiction, 494–5, 512, 548
right of passage in territorial seas,509–11rights of approach, 548
US Civil War, 952
watercourses. See international
watercourses
weaponsbanned weapons, 1068
choice of weapons in war, 1065, 1080
legality, 190
nuclear. See nuclear weapons
outer space, 482
post-war Germany, 206
weapons of mass destruction, 47
n16, 482, 1131, 1223
West Bank, 221, 222, 1061
West Indies, Associated States of theWest Indies, 214Western Asia, 1092
Western European Union, 1170–1,
1223
Western Sahara, 229, 424–5, 435, 446,
922 n39, 931, 1002, 1113
Western Sirmium, 1113
Westphalia, Peace of, 25, 1015, 1161
Wilson, Woodrow, 225, 379, 380 n45
witnesses
diplomats, 683
International Court of Justice, 985
womenCommission on Status of Women,
282
Convention on Elimination ofDiscrimination against Women,
300
health, 301

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More informationindex
human rights, 302
and international law, 63
nationality, 587
pregnant women and death penalty,
296
rights, 261
stoning, 332
UN Commission on Status of
Women, 1092
UN Committee on Elimination ofDiscrimination, 300–3
Vienna Declaration, 302
violence against, 301, 302, 358
works of art, 236
World Bank
dissolution powers, 1213
FDI guidelines, 744
generally, 40, 1098, 1099
Global Environmental Facility,
755–6, 783, 789
Inspection Panel System, 943
Multilateral Investment Guarantee
Agency, 751–2
succession of Soviet assets, 897
websites, 1221–2
World Food Council, 282
World Food Programme, 243, 1098
World Health Organisation, 1003,
1096, 1097, 1193, 1196, 1223
World Intellectual Property
Organisation, 1098 n74
World Meteorological Organisation,
1098 n74
World Trade Organisation (WTO),
and Chinese Taipei, 212
World War I, 30, 56, 371, 832, 1016
World War II, 56, 253, 588
writers, 105–7
WTO, 940–1, 1167–8
Wye River, 222
Yaron, Amos, 596 n103
Yemen, 187, 868, 889
Youndé Convention, 1173
Yugoslavia
Arbitration Commission, 959
borders of new states, 271© Cambridge University Press

1287
Bosnian claim, damages, 994
n306
break-up, 178, 180, 185, 187–9,
885, 1088
Chinese embassy in Belgrade,
673
dissolution of state, 188
EU Declaration, 375
and European organisations, 1156
n356
exclusion zones, 1141
federal state, 196
genocide, 263–6
human rights, 259
IFOR, 1142, 1159
individual criminal responsibility,
656
international investigations, 290,
294
Kosovo, 209–10, 673, 1046–7
and meaning of state, 178
NATO involvement, 1140, 1141,
1142, 1159–60, 1170
no-ﬂy zone, 1140
OSCE mission, 937
recognition of new states, 181 n24,
371, 372, 373, 375, 383, 384
Red Cross work, 1078–9
social ownership, 892
state responsibility, 695–6, 704–5
state succession, 696, 865; archives,
900; army pensions, 354 n217;
assets, 891, 892–3, 895; date,
864, 892; debts, 904; generally,
866–8; nationality, 908–9, 911;
principles, 863; UN membership,
1088–9torture, 303
treaty succession, 885; Genocide
Convention, 970, 990; humanrights, 886–9
UN sanctions, 1128–9, 1139, 1159,
1170
and UN Security Council, 1121,
1128–9UN use of force, 1139–42
UNPROFOR, 1139, 1159

www.cambridge.org

Cambridge University Press
0521824737 - International Law, Fifth Edition
Malcolm N. Shaw
Index
More information

1288

index

Yugoslavia (cont.)
and uti possidetis doctrine, 448–9
war crimes, 237
War Crimes Tribunal, 45, 141,
238–9, 263, 596, 656; meaning ofarmed conﬂict, 1069–71; meaningof war crime, 1078
WEU role, 1171

© Cambridge University Press

Zaire, 489, 561, 1112 n139, 1146
Zambezi River, 794 n226
Zambia, 687
Zanzibar, 876 n88, 877
Zimbabwe, 184, 676–7, 1044,
1125
Zouche, Richard, 24–5
Zubarah, 975

www.cambridge.org