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Introduction

The nature of Public International law

The term international Law was first used by Jeremy Bentham in 1780. It has been defined byWilliams and De Mestral as the system of law !ontainin" #rin!i#les$ !ustoms$ standards and rules

by whi!h relations between state and other international are "o%erned.

Distinction between Private IL and Public IL

&ri%ate IL or '!onfli!t of laws( as it is sometimes !alled$ is a system of rules that is a##lied when a

domesti! !ourt is fa!ed with fa!ed with a !ase that in%ol%es forei"n elements. It resol%es #roblem toas to whi!h a domesti! !ourt should ha%e )urisdi!tion$ whi!h national le"al system should be a##lied$

and to what e*tent should the !ourts of one )urisdi!tion re!o"ni+e and enfor!e )ud"ments based on

those issued by another !ourt in another )urisdi!tion.

&ubli! IL is a se#arate s#here of law and is distin!t from any one national le"al system. This fo!uses

on the brea!h of an international law as o##osed to a national one.

There are a number of "eneral differen!es between both ty#es of law. The main two howe%er$ deals

with the distin!tions in their fun!tion and who the res#onsibility for wron"s most attributable is to.

In domesti! law$ there is a distin!tion between the three fun!tions, law ma-in" le"islature and

e*e!uti%e/$ law determination !ourts and tribunals/ and law enfor!ement admin$ #oli!e$ and army/.

In international law$ there is little or no differentiation between the three fun!tions. ere the 2assembly is not a le"islature$ the international !ourt of )usti!e only o#erates with the !onsent of the

states and the 2 3e!urity 4oun!il has le"ally and #oliti!ally limited enfor!ement #owers.

In domesti! law whi!h is internal to states/$ there is indi%idual res#onsibility for !rimes or torts.

This is not so in International Law. ere$ most !olle!ti%e res#onsibility for wron"s falls u#on the#o#ulation of a state. owe%er$ there are !ases where #eo#le are indi%idually res#onsible es#e!ially

for war !rimes/.

The Evolution of International Law

The de%elo#ment of &ubli! International Law !an be de%elo#ed into three "eneral #eriods,

&re54lassi!al &eriod 6arly ori"ins 518/

The 4lassi!al #eriod 1851918/

The modern system 19185#resent/

A. The pre- classical System

This in!luded !on!e#ts of the Just War Do!trine whi!h a!!ordin" to Thomas :;uinas had three!onditions,


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Three thin"s are re;uired for any war to be )ust. The first is the authority of the sovereinon whose

!ommand war is wa"ed=3e!ondly$ a!ust causeis re;uired$ namely that those who are atta!-ed are atta!-edbe!ause they deser%e it on a!!ount of some wron" they ha%e done= Thirdly$ the ri"ht intention of those wa"in"

war is re;uired$ that is$ they must intend to promote the ood and to avoid evil=>

". The #lassical System

This saw the &ea!e of West#halia 18/$ The 4on!ert of 6uro#e !reated by the ?ienna 4on"ress of

181@/$ 4olonialism$ the Monroe Do!trine$ the Dra"o Do!trine$ rules restri!tin" the sla%e trade and

the a"ue &ea!e 4onferen!es of 1899 and 1907.

&ea!e of West#halia 5 saw a nation of !olle!ti%e defense$ the settlement of

dis#utes and the !oolin" off #eriod

4onferen!e of 6uro#e 5 this #romoted multi5lateral !onferen!es in times of #ea!e

4olonialism 5 IL su##orted !olonialism durin" this #eriod. There were

!harter !om#anies li-e the Dut!h and 6n"lish interior !om#anies

Monroe do!trine 5 this ushered in an era of disasso!iation from 6uro#e in the

Western emis#here. 3aw in!iden!es su!h as the :meri!an

Ae%olution. It !alled for a #oli!y of non5interferen!e by 6uro#e in

Western affairs. This was ne%er a!!e#ted as le"al by the 6uro#eans.

Dra"o Do!trine 5 :n attem#t by Latin :meri!a to !ease the #ra!ti!e of unboat

Di#loma!y.

ene%a 4on%ention 5 "a%e status to the International 4ommittee of the Aed 4ross 18/

&etersbur" 4on%ention5 188

Durin" the !lassi!al #eriod$ the thou"hts of Just war started to fall into disuse. The irony is that atthat time$ IL didn(t im#ose any limitation on a state to "o to war.

There were some limitations on the !ondu!t of warfare$ howe%er whether on land or sea/$ but ne%eron war itself. The rules re"ulatin" the !ondu!t of war were -nown as 'laws of warfare($ but more

re!ently$ 'humanitarian laws(. 4olonialism "a%e the !on;uerin" state the ri"ht of territory.

It is well to note also$ that at this #eriod$ IL allowed states to inter%ene in other state(s affairs$

meanin"$ by use of for!e. This was mainly off5setted by a reli"ious or #oliti!al ba!-"round and was

later dubbed humanitarian inter%ention>.

Gunboat Diplomacy5 This was the #ra!ti!e at the time of 6uro#ean states sendin" shi#s to other

#arts of the World e.". :meri!a. This was what the Dra"o Do!trine sou"ht to alle%iate.

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The Prohibition of the Slave Trade

ne of the first elements was the fa!t that indi%idual states started the #rohibition of the sla%e trade.

This saw a lateral Treaty between states e.". Eran!e and Britain in 181/. Indi%idual states soonabolished the holdin" of sla%e in the early 19th!entury. :fter this !ame e%ents of multi5lateral

treaties between se%eral states. By the end of the 19 th!entury$ the international !onferen!e sou"ht to

#rodu!e an :!t to su##ress and subse;uently abolish the sla%e trade. This did not !ome about until

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The !o%enant of the Lea"ue of 2ations 1919/ restri!ted$ instead of outlawed some e*istin" laws at

the time. :rti!le 1< of the !o%enant sou"ht to im#ose on states a !oolin" off #eriod. :rti!le 1Cim#osed re;uirements on members to obey the Lea"ue$ :rti!le 1@ states that if a dis#ute is not

settled$ a unanimous %ote has to be rea!hed$ in whi!h !ase$ members of the Lea"ue are e*#e!ted to

!om#ly with the results of the %ote and :rti!le 1 sti#ulates that if anyone brea!hed an arti!le$ theybrea!h a"ainst all states of the Lea"ue.

:nother de%elo#ment was the !reation of the &ermanent International 4ourt of Justi!e in 19


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be!ause of a 3 reser%ation to its a!!e#tan!e of the 4ourt(s )urisdi!tion that e*!luded dis#utes

arisin" under a multi5lateral treaty>. The ;uestion for the !ourt therefore was whether the !ustomaryrules on armed for!e and inter%ention !ontinued to bind the #arties in #arallel with the obli"ations

under the 2 4harter and other treaties they a!!e#ted$ so that the 4ourt !ould a##ly them$ des#ite

the 3 reser%ation.

The 4ourts held that,

HThere are no for holdin" that when !ustomary international law is !om#rised of rules identi!al to those oftreaty law$ the latter 'su#er%enes( the former$ so that the !ustomary international law has no further e*isten!e

on its own=.thus if Ha rule #arallels a rule of !ustomary international law$ two rules of the same !ontent are

sub)e!t to se#arate treatment as re"ards the or"ans !om#etent to %erify their im#lementation$ de#endin" on

whether they are !ustomary rules or treaty rules.>

The 'eneral Principle of (on-Intervention

:rti!le

)ule aainst the Threat or %se of &orce

This is dealt with under :rti!le

This arti!le #rohibits armed for!e$ whether or not it amounts to war. It bans threats to use of for!ewhether they are e*#li!it or un%eiled. TheNuclear $eapons Casestates and su""ests that #ossession

of su!h wea#ons may amount to use of for!e. The !ase also "oes on to state that e!onomi! !oer!iondoes not amount to use of for!e$ but it !ould %iolate the rule of #rohibited inter%ention.

:rti!le


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The Nuclear Weapons Case

There were two noted #oint in this )ud"ment amon" se%eral/. The first issue states that if the use of

a wea#on was unlawful #er se$ then there is no )ustifi!ation in its use. The se!ond hi"hli"hted that

fa!t that all unlawful uses of for!e are sub)e!t to international humanitarian Law.

Limitations that e*ist on +umanitarian Law

i. wea#ons !annot be used to atta!- !i%iliansii. no wea#on should be used if it !auses unne!essary harmG#ainGsufferin" to !ombatants

It is well to note that the ma)ority of the !ourt !on!luded that it !ouldn(t find with !ertainty that in all!ir!umstan!es$ the use of nu!lear wea#ons would be unlawful. owe%er$ the dissentin" )ud"ment

#ointed to the fa!t that many states share dis#layed nu!lear #ra!ti!es themsel%es. It was ar"ued that

from that state #ra!ti!e$ it !ould be dedu!ed that the use of nu!lear wea#ons did not brea- from the!ustomary rules.

:ll )ud"es in this !ase re"arded that the use of nu!lear wea#ons em#hasi+ed the main #oint on theuse of for!e.

E*ception to the )ule of %se of &orce,

i. 3elf5defen!e both indi%idual and !olle!ti%e/

ii. 4olle!ti%e measures both 25s#onsored and re"ional/

iii. Aes!ue of nationals$ andi%. umanitarian inter%ention

Both self5defense and !olle!ti%e measures are a%ailable under the 2 4harter and !ustomaryInternational Law. owe%er$ there is some doubt as to whether the res!ue of nationals and

humanitarian inter%ention e*ist under !ustomary IL.

Self- Defence

:rti!le @1 of the 2 4harter deals with this issue. It !o%ers both indi%idual and !olle!ti%e self5

defen!e. It e*#ressly states that,

2othin" in the #resent 4harter shall im#air the inherent ri"ht or indi%idual or !olle!ti%e self5defen!e if an armed atta!-

o!!urs a"ainst a member of the nited 2ations$ until the 3e!urity 4oun!il has ta-en measures ne!essary to maintain

international #ea!e and se!urity.>

TheNicara!ua casestates that the ri"ht to self5defen!e is a%ailable under !ustomary International

Law. To fully understand the essen!e of this$ we ha%e to e*amine the definition for self5defen!e.

Indi%idual, 5 where the state defends itself

4olle!ti%e, 5 where other states !ome to the aid of one state to hel# defend it.

#onditions for self-defence

There are a number for !onditions for the e*er!ise of self5defen!e,

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i% There must be an armed atta!-

:rti!le @1 in !ollaboration with the rules of !ustomary international law su##orts the abo%e

statement$ he Nicara!ua!ase defines what an armed atta!- is by sayin" that

an armed atta!- must be understood as in!ludin" not merely a!tion by re"ular armed for!es

a!ross an international border$ but also the sendin" by or on behalf of a 3tate of armed bands$

"rou#s$ irre"ulars or mer!enaries$ whi!h !arry out a!ts of armed for!e a"ainst another 3tate ofsu!h "ra%ity as to amount to> an a!tual armed atta!-$ !ondu!ted by re"ular for!es=>

The ri"ht of self5defen!e is a%ailable where an atta!- is made by the 3tate on another

3tate. 6."."sraeli $ar Case andDemocratic &epublic of Con!a # U!anda.

TheNicara!ua casee*#ressly does not ar"ue on issues surroundin" #re5em#ti%e

solutions to self5defen!e.

ii% There must be a de!laration of atta!-

iii% There must be a re;uest for assistan!e. This only a##lies to !olle!ti%e self5

defen!e established by theNicara!ua case)

i#% There must be a need for the res#onse and#% The res#onse must be #ro#ortionate.

he Caroline Case

The !ase arose out of the 4anadian rebellion of 18C7. The rebel leaders$ des#ite ste#s ta-en by the 3 authorities to#re%ent assistan!e bein" "i%en to them$ mana"ed on De!ember 1C$ 18C7$ to enlist at Buffalo in the 3 the su##ort of a

lar"e number of :meri!an nationals. The resultin" for!e established itself on 2a%y Island in 4anadian waters from

whi!h it raided the 4anadian shore and atta!-ed #assin" British 3hi#s. The for!e was su##lied from the nited 3tates

shore by an :meri!an shi#$ The Caroline. n the 2i"ht of De!ember

This !ase brou"ht forward three main issues$ as noted in arrisF

Lord :shburton $ in his re#ly made a "ood attem#t at )ustifyin" the British a!tion ina!!ordan!e with the test formulated by Webster whi!h has the "eneral a!!e#tan!e when

dealin" with matters of self5defen!e as a!!ordin" to the 2 4ha#ters/.

It was not doubted in this !ase that the British was entitled to anti!i#ate further atta!-s.

: re#ort made to the Lea"ue of 2ations in 19


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he Nicara!ua Case' shows that the ade;uate res#onse and #ro#ortionality issues are two mainre;uirements that are a #art of !ustomary international law. It also shows that the a!tions of the 3

in this !ase were dis#ro#ortionate.

he Nuclear $eapons Case' the !ourt found that any wea#ons that are used in self5defen!e had to

satisfy the re;uirements of #ro#ortionality. They also loo-ed at the li-elihood of es!alation in the use

of su!h wea#ons and whether this !ould be #ro#ortioned.

he il latforms Case' this !ase too- #la!e durin" the Ira;GI@ran war in the 1980s. The !ourts

found that the a!ts were neither ne!essary nor #ro#ortionate. They also found this in res#e!t to the

se!ond atta!-.

D&C # U!anda' The !ourt #ointed out that ta-in" air#orts and towns that are many miles away

from the 4on"o !ould not be #ro#ortionate.

#i% Ae#ort to the se!urity !oun!il

#ii% 4essation of self5defen!e after se!urity has ta-en the measures ne!essary. Both these!onditions are #rote!ted under the !harter :rti!le @1/.

#ollective $easures

This is #rimarily dealt with under 4ha#ter 7 of the 2 4harter :rti!les C95C/. They essentially

authorise the se!urity for!es to ta-e enfor!ement a!tions where there are threats of #ea!e brea!hes of#ea!e or a!ts of a""ression.

The 4ha#ter has been ar"ued by some to set out a series of !umulati%e re;uirements for 3e!urity4oun!il a!tion. Te!hni!ally s#ea-in"$ this is #robably in!orre!t. But it is interestin" to see how

:rti!les 05< #ro%ide in!reasin" measures for use by the 3e!urity 4oun!il.

The main me!hanism for 3e!urity 4oun!il a!tion was su##osed to be throu"h s#e!ial standby for!es

established under :rti!le C. nfortunately$ no :rti!le C a"reement has e%er been entered into

between a member of state and the 2 and there are no standby for!es. :s a result$ al for!es a!tin"

under the authority of the 3e!urity 4oun!il u# until the #resent date5whether #ea!e-ee#in" or otherfor!es$ merely ha%e been lent to the 2 on a %oluntary ad hocbasis. This re#resents a ma)or

!hallen"e for 4ha#ter 7 as a whole. :n a!ademi! debate e*ists as to whether the 3e!urity 4oun!il

!an lawfully authorise use of for!e under the 4harter5 sin!e the -ey me!hanism by whi!h it wasmeant to do so is not o#erational.

The 4ha#ter sets out e*a!tly what the 3e!urity 4oun!il !an do.

05 enables the 34 to ta-e #ro%isional measures

15 enables the 34 to ta-e #ro%isional measures not in%ol%in" the use of armed for!es


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05 !ondemned the Ira;i in%asion of uwait$ demanded their immediate withdrawal and!alled for instant ne"otiations 1990/

785 authorised 2 members to use any measures ne!essary to remo%e Ira; from uwait

1990/875 In!ludes a !ease fire a"reement that Ira; si"ned. It im#osed disarmament obli"ations on

them. 1991/

115 &assed in


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who ;ui!-ly too- !ontrol of the island$ after fi"htin" with renada for!es. 3 troo#s were e%a!uated in De!ember 198C

and a !entre ri"ht "o%ernment was demo!rati!ally ele!ted in 198.

The 3 )ustified its inter%ention on three "rounds,

the #rote!tion of 3 nationals

a re;uest to inter%ene from the 643$ of whi!h renada was a member

a re;uest from the of renada

These )ustifi!ations ha%e been doubted. :lthou"h there were 3 nationals in the island$ all a!!ountssu""est that they were not at ris-. The !om#eten!e o the 643 to re;uest a non5member state to

inter%ene in the absen!e of e*ternal a""ression and by the #ro!edure followed is ;uestionable$ and

the was #robably not !onstitutionally !om#etent to re;uest assistan!e.

)escue of (ationals

This is not dealt with under the 4harter. 3ir Waldo!- howe%er "a%e the su""ested !riteria from

whi!h to follow. e stated that,

There must be 1/ an imminent threat of in)ury to nationals$


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This do!ument su""ests the followin",

The rational for humanitarian inter%ention is that 'ultimately$ #ea!e is more endan"ered by

tyranni!al !ontem#t for human ri"hts than by attem#ts to assert$ throu"h inter%ention$ the

san!tity of human #ersonality.( as a!!ordin" to Lauter#a!ht/

That the best !ase that !an be made in su##ort of humanitarian inter%ention is that it !annot

be said to be unambi"uously ille"al

It a!-nowled"es the la!- of e%iden!e that shows a ri"ht of human inter%ention for three

main reasons,

a/ The 2 4harter nor modern international law does not s#e!ifi!ally in!or#orate su!h ari"ht

b/ There are hardly any !ases whi!h refer to the "enuine need for humanitarian

inter%ention

!/ The s!o#e for abusin" su!h a ri"ht ar"ues stron"ly a"ainst its !reation

nited in"dom uidelines on umanitarian Inter%ention

These "uidelines were tri""ered by the Ira;i in%asion of uwait and #arti!ularly y the 2:T

bombin"s of the EAK in 1999. They mar- a de#arture in the #ra!tise from the #osition they too-in the E4 &oli!y do!ument 2o$ 18 and "o as far as any state would a##ear to ha%e "one in

a!!e#tin" that umanitarian inter%ention may be lawful.

The "uidelines themsel%es list si* #rin!i#les that ou"ht to be followed. :! these #rin!i#les indi!ate$the !laimed ri"ht is limited o !olle!ti%e a!tion by more than one state$ thou"h not ne!essarily sub)e!t

to 2 authorisation$ whether e*#ressed or im#lied.

A note on %( Peaceeepin

There is no :rti!le in the 2 4ha#ter that authorises #ea!e-ee#in". :rti!le CC is the !losest5 related

#ro%ision as it en!oura"es the #arties to a dis#ute to use #ea!eful means o their own !hoi!e. The

#ea!e-ee#in" notion arose out of ne!essity.

Different Perspectives of Law

Different a!tors ha%e tried to sha#e the form of international law, natural lawyers$ #ositi%ists$ the

3o%iet Blo!$ de%elo#in" states i.e. the 2ew International 6!onomi! rder/ and modern le"als!holars e.". feminists et!./

2atural Law

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This s!hool of thou"ht s#ea-s that the law deri%es from some hi"her #ower. It ma-es a distin!tion

between )ust and un)ust laws. This$ howe%er$ is sub)e!t to abuse as ea!h #erson would thin- that theirlaw is )ust.

&ositi%ism

They re"ard the law as man5made. This$ they !laim$ draws the line between law and )usti!e.

&ositi%ism seems to be more #re%alent in today(s so!iety. It also su##orts the %iew that international

law !an only bind states byGwith their !onsent.

3o%iet Blo!

This #ers#e!ti%e related to Mar*ism/ sees international law as bein" re"arded a #art of the forei"n#oli!y of a state.

De%elo#in" 3tates

Their full #osition is diffi!ult to define. owe%er$ they were stron"ly in fa%our of the end of!olonialism and a#artheid.

Eeminists

They thin- that there is a bias in the di#lomati! !areer a"ainst women. They hi"hli"hted the lowle%el of women who re#resent hi"h le%el or"anisations.

Is International Law really Law

John :ustin and erbert art are both !on!erned with identifyin" the essen!e of law and le"al

systems. They both a##roa!h the sub)e!t matter with a #ositi%ist stan!e$ se#aratin" law from

morality and other so!ial rules. :ustin su""ests that if we are unable to distin"uish law from a so!ial

matter we will not be able to #ro#erly study it. art(s !on!ern is also a moral one.

John :ustin

:ustin(s theory of law is often referred to as the '!ommand theory of law(

e defines the law as the !ommand of a so%erei"n ba!-ed by san!tions>

:r"ued that IL is a form of morality. It is not real law

e ar"ues that there is no le"islature in IL. It has no #ower to ma-e bindin" resolutions. Its

ability to im#ose san!tions is limited. There is no !ourt that !an issue a bindin" )ud"ement onall #arties.

e was tryin" to establish what ma-es a rule a law as o##osed to tradition$ morality of

!ustom/.

art

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e firmly re)e!ts :ustin(s rationale on the sub)e!t

e$ li-e :ustin$ ;uestioned whether IL !an be re"arded as real law

e defined law as the union of #rimary rules what the law is/ and se!ondary rules whi!h

shows how the law !han"es and de%elo#s/

e made mention of another se!ondary rule relatin" to the re!o"nition of this law.

IL failed the rule of re!o"nition sim#ly be!ause it is not so#histi!ated enou"h to be a system

of law. This is lar"ely due to the fa!t that IL s filled with #rimary rules=tellin" us what we!an and !annot do.

e disa"rees with :ustin that laws are obeyed be!ause san!tions are im#osed. e !laims

they are obeyed be!ause they are %alid. This is the main reason we !ould !onsider it to beanalo"ous to domesti! law.

Tutorial (otes

The main ma*im in International treaties is pacta sunt ser#anda+. This means that treaties

must be -e#t

The &ea!e of West#halia saw the end of the Just War otherwise !alled the C0 year war due

to its duration 11@51@/ The min institution at the time o the treaty was the Aoman 4atholi! 4hur!h. :fter the &ea!e$

there was wides#read &rotestantism as the emer"in" states too- o%er from 4atholi!ism.

We re"ard 18 the year the treaty of West#halia was si"ned/ as the year international law

started.

It is well to note that there are !urrently o%er 19< states as si"natories to the 2F u# from @1 at the

end of World War


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!/ The sele!tion of )ud"es differ from that of domesti! !ourts

)esponses and #riti0ue to International

ne of the main ar"uments surrounds whether or not there is a uni%ersal definition of whatlaw is If the answer is no$ then ea!h theory is )ust a matter of o#inion. In "rierly1 Law of(ations1Waldo!- thedition$ 19C/ as !ited in arris$ it was stated that the best %iew is

that international law is in fa!t )ust a system of !ustomary law$ u#on whi!h has been ere!ted$almost entirely within the last two "enerations$ a su#erstru!ture of !on%entional or treaty5

made law$ and some of its !hief defe!ts are #re!isely those that the history of law tea!hes us

to e*#e!t in a !ustomary system.>

There is no le"islati%e body to issue and !reate law

There is a form of international morality whi!h is se#arate from international. These are rules

of !omity.

International law is a!tually treated as law and this is e%iden!ed in #ra!tise. There are also

referen!es to International Law in some !onstitutions.

ne of the ma)or !riti;ues is that IL is diffi!ult to enfor!e. owe%er$ there areme!hanismsGsan!tions whi!h !an enfor!e it e.". "rou# san!tions$ di#lomati! #ressure$

e!onomi! and #oliti!al san!tions$ 3e!urity 4oun!il and !ha#ter 7 a!tions./

:rti!le 9

he Amistad Case5 this !ase shows that IL !an a!tually be enfor!ed throu"h a domesti! !ourt

similarly so for uman Ai"hts !ases/

There are se%eral measures that the state !an ta-e short of military a!tion

International Law is "enerally obeyed

The notion of self-help

This notion is best des!ribed under the !ase of,

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Gaci,o#o'Na!ymaros ro-ect Case (.un!ary # /lo#a,ia)0 199

By a 1997 bilateral treaty$ un"ary and 4+e!hoslo%a-ia a"reed to !onstru!t a system of lo!-s di%ertin" a stret!h of the

Danube alon" a new !hannel on their territories to #rodu!e hydroele!tri!ity$ im#ro%e na%i"ation the 33A for na%y

#ur#oses/ and #rote!t a"ainst floodin". In 1989$ un"ary unilaterally sus#ended and then abandoned wor- on the #ro)e!t

be!ause of stron" #ubli! #rotest a"ainst its en%ironmental im#a!t. Thereu#on$ 4+e!hoslo%a-ia de%ised a #lan ?ariant 4/

that de%iated from the treaty whi!h in%ol%ed the unilateral di%ersion of the Danube into a by#ass !anal on its territory. In

2o%ember 1991$ it !ommen!ed !onstru!tion of the by#ass !anal$ but did not ta-e irre%ersible ste#s until !tober 199


17/90

Sources of International Law

This to#i! e*#lores how you "o about identifyin" international law. In doin" this$ you will note that

international law doesn(t o#erate under the do!trine ofstare decisis%

2hat is meant by sources

tryin"Gattem#tin" to identify whether a #arti!ular rule !an be re"arded as bindin" law

we see- the %alidity o a #arti!ular rule

there are < ty#es of sour!e, formal sour!e and material sour!e

Eormal 3our!e5 the #ro!edure or !reatin" le"ally bindin" rules of enerala##li!ation e.". !ustom

and "eneral #rin!i#les

Material 3our!e 5 the e%iden!e that you use to #ro%e the e*isten!e of a #arti!ular rule e.". treaties and

de!larations

Article 34

:rti!le C81/ of the /tatute of the "nternational Court of 2usticeis often referred to as settin" the

basi! list of sour!es of international law. 2oti!e howe%er that the #ur#ose o the :rti!le is more

limited5 it was in!luded merely to tell the 4ourt what it canloo- at in its deliberations.

The :rti!le states,

1. The 4ourt$ whose fun!tion is to de!ide in a!!ordan!e with international law su!h dis#utes as are submitted to it$

shall a##ly,

a. international conventions$ whether "eneral or #arti!ular$ establishin" rules$ e*#ressly re!o"nised bythe !ontestin" statesF

b. international custom$ as e%iden!e of a "eneral #ra!tise a!!e#ted as law

!. the "eneral principles of lawre!o"nised by !i%ili+ed nations

d. sub)e!t to #ro%isions of :rti!le @9$ )udi!ial de!isions and the tea!hin"s of the most hi"hly ;ualified

#ubli!ists of the %arious nations$ as subsidiary means for the determination for the rules of law.


18/90

*3 aeuo et bono' : me!hanism by whi!h the 4ourt !an i"nore e*istin" law and de!ide

the !ase on rules they see to be fair.

Nuclear $eapons Case

In the dissentin" o#inion of Jud"e i""ins it was stated that the e*isten!e of a la!una should notma-e the !ourt unable to ma-e a de!ision. The 4ourts found that the threats or use of nu!lear

wea#ons should "enerally !ontra%ene international humanitarian law. owe%er$ they lea%e o#en the

;uestion of whether the use of nu!lear wea#ons should be !onsidered lawful e%en thou"h it!ontra%ened international humanitarian law.

)anin of Sources

There is no #arti!ular hierar!hy with these rules. The #rimary sour!es are found under ss1/a/b/!/of :rti!le C8 and #ara"ra#h d/ outlined the subsidiary means for the determinationGaid of rules of

law.

e3 ata' refers to what the law is at that moment

e3 6erenda' refers to the law as it mi"ht be!ome or de%elo#

acunae' refer to a "a# in IL/. It !ould also be that there is not law at that time that deals with

the issue at hand

Non iuet' this is where the 4ourt is unable to render a findin" be!ause there was no !ase on

#oint Nuclear $eapons Case)% The 4ourt has limitations on this howe%er$ as they

are unable to brin" in a findin" of non liuet on the "rounds of silen!e o obs!urity othe law :rti!le 17/

Treaties

Treaties are #robably the well5used sour!e of law today. They are not #arti!ular I nature$ but !o%er a

wide ran"e of sub)e!ts. 3ome ar"ue that treaties are re#la!in" !ustoms as the main sour!e o law for a

number of reasons,

i. Treaties are used to !odify an a"reement

ii. The issue for law ma-in" treaties %s. !ontra!t treaties. The former im#oses uniformed

obli"ations on the #arties. 3ome ar"ue that if a treaty a!tually ser%es that fun!tion$ itsanalo"ous to le"islati%e fun!tions. The latter$ howe%er$ im#oses obli"ations on a small

number of #eo#le o%er a short #eriod of time. Eor e*am#le$ a treaty between < states to draw

a border. n!e this has been done$ the treaty has e*#ired.iii. :ll treaties are not the same as le"islation. They don(t bind states that are no #arties to the

treaty itself

i%. nli-e le"islation$ treaties aren(t really made by a sele!t "rou# of states%. 6%en the narrowest from of treaties$ law and obli"ations e*ist for that #arti!ular #eriod of

time$ it !ould !reate !ustom.

18


19/90

The Eit+mauri!e :rti!le

This arti!le ;uestions whether treaties are a formal sour!e of law or do they merely !reate

obli"ations. e mainly ar"ued the latter. These obli"ations only remain between that #arties and lastu# until the treaty e*#ires.

"ilateral and $ultilateral Treaties

: bilateral treaty is an a"reement between < states. While a multi5lateral treaty is an a"reement

between a lar"er number o states. It(s easier to determine what the law is in the latter be!ause it isbindin" on a la"er number of states.

Parties

nly the sub)e!ts to international law5meanin" the states5 !an be sub)e!t to treaties 7iennaCon#ention of reaties). There !an also be #ri%ate a"reements between states. 3u!h an a"reement

will be "o%erned by the law of one of those states in other words$ it will be "o%erned by #ri%ateinternational law/.

"indin (ature of Treaties

3tates !an only be bound by a treaty if they ha%e e%iden!ed an intention to be bound. It !an be done

by,

3i"nature

Aatifi!ation Aele%ant or"an e.". 2 whi!h a!ts a s a de#ository of all treaties/

When a #res!ribed number of instruments ha%e been de#osited

sually$ su!h treaties don(t affe!t lo!al or"ans unless they ha%e de#osited into lo!alGdomesti!le"islature.

#ustom

:r"uably$ !ustom is the only formal sour!e that !an turn all material sour!es into bindin" law. The

formation in%ol%es two -ey in"redients, 1/ state #ra!tise and


20/90

This stems from material as#e!tsGusa"e. It !an be "leamed from a whole %ariety of sour!es in!ludin"

news#a#er arti!les$ di#lomati! s#o-es#erson$ #ro%isions o treaties$ international tribunals$ and"o%ernment s#o-es#ersons$ to name a few.

3e%eral fa!tors are im#ortant in assessin" the stren"th of a "i%en #ra!tise. They in!lude,

The duration of the #ra!tise5 meanin" how lon" the #ra!tise has been in e*isten!e for it to

!onsidered an international law

The uniformity of the #ra!tise5 deals with !onsisten!y and re#etition as well as how lon" the#ra!tise has been in e*isten!e. :n e*am#le !an be found in he Asylum Case (Columbia #

eru0 1958)%ere$ the 4ourt loo-ed at whether a lo!al !ustom e*isted in Latin :meri!a that

allowed the state "rantin" asylum to determine whether the offen!e !ommitted was#oliti!alG!riminal in nature. The fa!ts are set out below.

:fter an unsu!!essful rebellion in &eru in 198$ a warrant was issued for the arrest on a !riminal !har"e arisin" out of the

rebellion o one of its leaders$ aya de la Torre$ a &eru%ian national. e was "ranted asylum by 4olumbia in its &eru%ian

6mbassy in Lima. 4olumbia sou"ht and &eru refused a safe !ondu!t to allow aya de la Torre out of the !ountry.

4olumbia brou"ht this !ase a"ainst &eru$ as-in" the 4ourts to rule that 4olumbia$ as the state "rantin" asylum is!om#etent to ;ualify the offen!e for the #ur#oses o the said asylum.> It ar"ued or a rulin" on the basis of both treaty

#ro%isions and ':meri!an International law in "eneral(.

The 4ourts stated that the #arty whi!h relies on a !ustom of this -ind must #ro%e that this !ustom is established in su!h

a manner that it has be!ome bindin" on the other #arty.> They ar"ued that it was the onus of the 4olumbian "o%ernment

to #ro%e that the rule in%o-ed was in a!!ordan!e with the standard usa"e #ra!tised by the states in ;uestion. They relied

on :rti!le C8 to su##ort this %iew. They failed to find any !onsisten!y within the fa!ts and felt they were un!ertain and

!ontradi!tory.

The test as outlined in this !ase is one of a !onstant and uniformed usa"e.

North /ea Continental /helf

6ederal &epublic of Germany # Denmar, and the Netherlands

: number of bilateral a"reements ha%e been made drawin" lateral median lines delimitatin" the 2orth 3ea 4ontinental3hel%es of ad)a!ent and o##osite 3tates$ in!ludin" two lateral line a"reements between the 2etherlands and ermany

19/ and Denmar- and ermany 19@/. 6a!h of these last two a"reements$ howe%er$ did no more than draw adi%idin" line for a short distan!e from the !oast be"innin" at the #oint at whi!h the land boundary of the two states were

!on!erned. Eurther a"reement had #ro%ed im#ossible. 3#e!ial a"reements were !on!luded between the 2etherlands and

the Eederal Ae#ubli! of ermany and between Denmar- and ermany referrin" the #roblem to the I4J. In ea!h s#e!ial

a"reement$ the ;uestion #ut to the 4ourt was,

What #rin!i#les and rules of international law to the delimitation as between the #arties of the

areas of the 4ontinental 3hel%es in the 2orth 3ea whi!h a##ertain to ea!h of them beyond the

#artial boundary Halready determined=

Both !ases were later )oined by the 4ourts.

3ummarise )ud"ement in arris #".


21/90

!onsistent with the rule bein" ar"ued as !ustom. They noted that in!onsistent beha%iour is either a

brea!h of the rule or a )ustifi!ation of the rule itself.

Ea!tors influen!in" !onformity

i. The le%el of o##osition to the formation of a rule. Minor in!onsisten!ies will #robably

not #re%ent the formation of a ruleF howe%er$ you ha%e to show some !onformity with

the ruleii. The stren"th of the #rior rule5 you my need stron" e%iden!e to show that this rule is

no lon"er in for!eiii. Tryin" to #ro%e the e*isten!e of lo!alG"eneral !ustom. The threshold of the former

may be harder to satisfy.

The "enerality of the #ra!tise5 ha%e only some states or all of them obser%ed the #ra!tise

ow #owerful$ whether #oliti!ally$ or e!onomi!ally$ are the states who do obser%e the rule

It is well to note that a #ra!tise !an be !onsidered "eneral e%en if it(s not uni%ersally a!!e#ted. Thisis as sti#ulated under :rti!le C81/b/. : sin"le or few states !annot #re%ent the formation of a

!ustomary rule of law.

Ea!tors influen!in" "enerality

i. The "reater the number of statesii. The status o the state5 there mi"ht be more wei"ht "i%en to the fa!t that the more #owerful

states follow the !ustom

iii. The relationshi# between the #arti!ular states and the sub)e!t area or rule in ;uestion/

6%iden!e of state #ra!tise !an be seen by both a!tions and ina!tions. Eor e*am#le$ of a state fails to

rea!t to a #arti!ular !ondu!t$ it !an be seen to be a##ro%in" of tht beha%iour.

Opinio uris (su!"ecti#e or ps$chological element)

The #ur#ose of this is to e*amine why states do what they are doin". The rationale is that it hel#s usto distin"uish between #ra!tises formed from le"alGnon5le"al reasons. There is a !on%i!tion on the

state hat there is a le"al obli"ation for it to a!t that way. 4ertain ille"al a!tions are routinely

#erformed$ but !ontrary to international law. This wouldn(t be e%iden!e of !ustom in many !ases. :

-nown e*am#le is the re#ort released by :mnesty international whi!h noted that !ertain statesen"a"e in torture.

6ilarti!a # ena'"rala0 198

The &s$ a father and a dau"hter$ were &ara"uayan !iti+ens who entered the 3 in 1978 and a##lied fro #oliti!al asylumthere. 3hortly after their arri%al$ they learnt of the ille"al #resen!e in the 3 of the D$ who was a &ara"uayan !iti+en and

the former head of #oli!e in :sun!ion$ &ara"uay. The &s brou"ht !i%il #ro!eedin"s for dama"es in a 3 federal distri!t

!ourt alle"in" that he had wron"fully !aused the death of their son and brother also a &ara"uayan !iti+en/ in &ara"uay in

197 by torture in retaliation fro their father(s #oliti!al o##osition to the &ara"uayan "o%ernment.


22/90

The ty#e of death arose under a number of international statutes in!ludin" the ni%ersal De!laration of uman Ai"htsdealin" with 'wron"ful death(. It was !laimed that the !ourt had )urisdi!tion under the nited 3tated Judi!iary :!t 1789

whi!h authorises )urisdi!tion to federal distri!t !ourts o%er !auses dealin" with alien torts.

This !ase established hat the !ourts will a!!e#t somethin" as bein" bindin" international law as lon"

as that !ase denies the beha%iour or brin"s it under an e*!e#tion.

he otus Case (6rance # ur,ey) 19:

This !ase found that a states failure to a!t !ould be e%iden!e of !ustom. The fa!ts are outlined below.

:!!ordin" to the s#e!ial a"reement$ the 4ourt has to de!ide the followin" ;uestions,

i. as Tur-ey$ !ontrary to :rti!le 1@ of the 4on%ention of Lausanne of July


23/90

6*#ound on what international law may be

6lements of law and how it a##lies to &ubli! IL. 3u!h elements in!lude rules$ obli"ationswhi!h are established by the so%erei"n state/ or international or"anisation$ and in rare

o!!asions$ indi%iduals. The so%erei"n has o be obeyed.

ow does &IL relate to the definition

Aules are established by le"islation in #arliament in domesti!Glo!al law. In international law$

there is no sin"le "o%ernment. The nearest thin" to #arliament in international law is the "eneral :ssembly of the 2 2ew

Kor-/. Both this "rou# as well as the lo!al "o%ernment ma-e rules. They ha%e a similar

or"anisational and wor- ethi!. They differ in the sense that the :!ts of #arliament arebindin"$ while that of the eneral :ssembly isn(t. They are mere re!ommendations.

There are de!isions$ howe%er$ that are bindin" within the 2. This is found %ia !ustomary

law obtained throu"h state #ra!tise. When you are loo-in" at the bindin" beha%iour of states$ you first see- the Treaty in most

!ases$ the 2 4harter/.

(" that all states are sovereins.This is based on the #rin!i#le of !onsent. Meanin" states ha%e a

ri"ht to do as they wish. :ll states are e;ual under the 4harter.

(" that the Security #ouncil is the only roup under the Treaty 5%( #harter6 that can tae

coercive actions.

The 3 is the only member often 3e!urity 4oun!il with %eto #ower. They a!ted ille"ally in the Waron Terror Israeli war/$ but !laimed that they a!ted in a!!ordan!e with s.@1 2 4harter in 3elf5

defen!e.

he Caroline Case0 supra

:fter loo-in" for e%iden!e of self5defen!e in treaties$ you ne*t loo- to the other main sour!e ofinternational law$ !ustom state #ra!tise/.

("that the se%eral sour!es !o%ered under :rti!le C8 International 4ourts of Justi!e 3attute/

in!ludes the followin",

Treaties

4ustom eneral #rin!i#les

Judi!ial de!isions and tea!hin"s by ;ualified #ubli!ists of %arious nations these are used as

subsidiary measures/

#ustom 5cont7d6

Kou ha%e to show e%iden!e that the state #ra!tise is obli"atory.

)eional #ustom

he Asylum Case (Columbia # eru)0 supraestablished a test of !onsisten!y and re#etition of

#ra!tise in order to establish !ustom.


24/90

&i!ht of assa!e Case (ortu!al # "ndia)

In this !ase$ the I4J found that &ortu"al en)oyed a Ai"ht of &assa"e in India be!ause of !onstant and unified #ra!tise for

o%er 1 the "eo"ra#hi!al !onditions #re%ailin" on 2orwe"ian !oasts> and the safe"uard of the %ital

interest of the inhabitants of the northernmost #arts of the !ountry.> The fist of these "rounds related to the use of

strai"ht baselines by 2orwe"ians and the a!;uies!en!e in that use by other states. ther "rounds were #ut forward.

In this !ase$ the !hallen"ed the le"ality of 2orway(s strai"ht baseline system and the !hoi!e of !ertain baselines used

in a##lyin" it. The ;uestion was im#ortant or British fishin" interests. 2orwe"ian enfor!ement of its system has "i%en

rise to dis#utes in%ol%in" British fishin" %essels.

The !ourt found tat e%en if a #arti!ular ty#e of delimitation #ra!tise had emer"ed$ 2orway would not ha%e been bound

by that rule$ be!ause it had #ersistently ob)e!ted to it.

Lord Aead said in res#e!t of state #ra!tise and with #arti!ular referen!e to the fa!ts of the !ase before

him that,

The only !on%in!in" e%iden!e of state #ra!tise is to be found in sei+ures$ where

the !oastal state asserts its so%erei"nty o%er the water in ;uestion by arrestin" a

forei"n shi# and by maintainin" its #osition in the !ourse of di#lomati!ne"otiation and international arbitration.

Jud"e 3ir :rnold M!2air$ in is dissentin" )ud"ement stated,

International law does not say to a state, 'Kou are entitled to !laim territorialwaters if you want them.( 2o maritime state !an refuse them. International

Law im#oses #in a maritime state !ertain obli"ations and !onfers on it !ertainri"hts arisin" out of the so%erei"nty whi!h it e*er!ises o%er its maritime

territory.

8uestion, 4an a #ersistent ob)e!tor es!a#e a !ustomary rule on!e it has emer"ed 6.". 3outh :fri!a

and a#artheid


25/90

3ubse;uent b)e!tor

This refers to a state that(s ob)e!tin" to a rule after it has been established. It !an ob)e!t to this rule

and es!a#e a##li!ation only if no other state has ob)e!ted. This usually re;uiresa##ro%alGa!;uies!en!e. It is well to not that in su!h situations$ the ob)e!t has to be !ontinually

re#eated.

(" - both ob!ectors apply the doctrine of opinio "uris' violations of a law are means by which customary international law can actually

chane

' &or formation of a custom1 you still need to satisfy state practise 5eneral6 and

opinio "uris.

Interaction between customary law and treaties

A. #ustom arisin from treaties

North /ea Continental /hel#es Cases0 supra

Denmar- asserted a #arti!ular :rti!le under the ene%a 4on%ention. Two rules are bein"

forwardedF one based on a !on%ention and the other that ermany asserted !alled thedo!trine of )ust and e;uitable share>.

The !ourts e*amined whether the Treaty #ro%ision subse;uently emer"ed as #art of

!ustomary law and therefore in!umbent u#on most states. They de!ided that it hadn(t.

Ea!tors brou"ht by the !ourt,

i. Was the arti!le o the !on%ention norm !reatin" meanin" did it set out a rule of law/

ii. What was the le%el of #arti!i#ation in the treaty and did this in!lude states that were s#e!ial

to the treaty.

iii. Duration and le%el of the uniformity of the #ra!tise

The !ourt found that state #ra!tise should ha%e been both e*tensi%e and %irtually uniformed and it

must ha%e demonstrated that a re!o"nition of the rule of law as in%ol%ed.

". Interpretation of Treaties in relation to custom

There are two main thin"s to bear in mind when dealin" with this sub5to#i!. The first is that treaties

!an !o#y !ustom$ but also the se!ond, that !ustom !an e*ist without a treaty.

he Nicara!ua Case'In this !ase it was noted that the !ourts !learly find that !ustom and treaty !an

!o5e*ist in the same area.

If there is a !onfli!t between a treaty and !ustom$ !ertain rules may a##ly. In few e*!e#tions$ states

!an use treaties to o#t out of !ustom. owe%er$ there are se%eral #rin!i#les to resol%e !onfli!t,


26/90

Later rules #re%ail o%er earlier ones le3 posterior)

The more s#e!ialisedG #arti!ular rule #re%ails o%er the "eneral rule. owe%er$ there aredifferent ways where a rule !an be more #arti!ular under international law$ e.". rule to

sub)e!t matter or number of #arti!i#atin" states.

Aules to "o%ern "eneral rules

There is a #resum#tion that treaties are not intended to dero"ate from !ustom this thou"h$ is

refutable/

There are se%eral !ustomary rules that treatiesG!ustoms !annot o%erturn. These are referred to

as-us co!ens%

us Cogens

This is a rule that #ermits no e*!e#tion. It is also referred to a #eremetory norm in its essential

element$ states !annot !ontra!t out of a-us co!enby treatiesG!ustoms. They !an only be !han"ed by!ustomary rules of a similar !hara!ter another-us co!en)% This is sti#ulated in :rti!le @C ?ienna

4on%ention/ whi!h states,

: treaty is %oid$ if at the time of its !on!lusion$ it !onfli!ts with a #erem#tory

authoritati%e/ norm of "eneral international law. Eor the #ur#oses of the

#resent 4on%ention$ a #erem#tory norm of "eneral international law is a norma!!e#ted and re!o"nised by the international !ommunity of 3tates as a whole

as a norm from whi!h no dero"ation is #ermitted and whi!h !an be modified

only by a subse;uent norm of "eneral international law ha%in" the same

!hara!ter.

:rti!le of the same 4on%ention states that,

If a new #erem#tory norm of "eneral international law emer"es$ any e*istin"

treaty whi!h is in !onfli!t with that norm be!omes %oid and terminates.

2hy do these rules emere

They de%elo# due to demands of so!ialist and third world states

4ertain ty#es of beha%iour under no !ir!umstan!es should be #ermitted be!ause of their

nature

&ossible 6*am#les

o Aules a"ainst "eno!ide

o Aules a"ainst the use of for!eG a!ts of a""ression

o Aules a"ainst sla%ery and the sla%e trade

Aloeboetoe Case (1994)'the !ourt found that a treaty datin" ba!- to the 18th!entury$ if it were to be!on!luded now$ would be null and %oid be!ause it !ontradi!ted a #erem#tory norm.


27/90

o Aules a"ainst #ira!y

o Aules a"ainst !rimes of humanity

(" that #ositi%e rules in fa%our of !ertain thin"s !an be a rule of -us co!ene.". self determinationand human ri"hts/.

+ow do these rules differ from normal customary International Law

a. They do emer"e from #arts o the !ustomary #ro!essb. they !an only be dis#la!ed by the emer"en!e of another rule of the same

!hara!ter

!. 4an a state ob)e!t to a rule of-us co!ens@: state !an be a #ersistent ob)e!tor ifit dis#lays a %ery stron" !on!e#t of dissent. :nother %iew is that !ustoms !an

e%en bind the state e%en if it #rotests.

Evidence to show the emerence of a"us cogen:

:-ehurst too- the %iew that there are two


28/90

eneral &rin!i#les elaborated by the I4J

1. the notion that brea!h of a rule in%ol%es an obli"ation to ma-e a re#aration

$ if the #arties a"ree

thereto=the 4ourt has some freedom to !onsider #rin!i#les of e;uity as #art of theinternational law whi!h it must a##ly=it would seem to be an im#ortant #rin!i#le of e;uity

that where two #arties ha%e assumed an identi!al or a re!i#ro!al obli"ation$ one #arty whi!h is

en"a"ed in a !ontinuin" non5#erforman!e of the obli"ation should not be #ermitted to ta-e

ad%anta"e of a similar non5#erforman!e of that obli"ation by the other #arty.

E0uity

This !an be !on!ei%ed as a sour!e of law under :rti!le C8 1/ !/. owe%er$ e;uity also arises under

:rti!le C8


29/90

9udicial Decisions

It is sti#ulated under :rti!le @9 of the 3tatute of the International 4ourts of Justi!e that,

The de!ision of the 4ourt has no bindin" for!e e*!e#t between the #arties and in

res#e!t of that #arti!ular !ase.

We see where as well$ )udi!ial de!isions are referred to as a sour!e under :rti!le C8 1/d/ of the

same statute.

We also see where :rti!le 9 of the nited 2ations 4harter statin" that,

1. 6a!h member of the nited 2ation underta-es to !om#ly with the de!isions of the International

4ourt of Justi!e in any !ase to whi!h it is a #arty.


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The Members of the nited 2ations a"ree to a!!e#t and !arry out the de!isions of the 3e!urity 4oun!il in a!!ordan!e

with the #resent 4harter.

(".n matters relatin" to the 2 bud"et$ de!isions are bindin".

#ases in which the %( 'eneral Assembly was referred to in the I#9

he Nicara!ua Case

In this !ase it was noted that,

The 4ourt thus finds that both &arties=ta-e the %iew that the #rin!i#les as to the use of for!e

in!or#orated in the nited 2ations 4harter !orres#ond$ in essentials$ to those found in!ustomary international law=the 4ourt has howe%er to be satisfied$ that there e*ists in

!ustomary international law an opinion -uris=.this opinion -urismay$ thou"h with all due

!aution$ be dedu!ed from$ inter alia$ the attitude of the #arties and the attitude of the 3tates

towards !ertain eneral assembly resolutions=

he $estern /ahara Case

Western 3ahara was !olonised by 3#ain in 188 and remained until 197 a 3#anish !olony -nown as the 3#anish 3ahara.

Its 197 !ensus #o#ulation of 7$900 !onsisted mostly of nomadi! 3aharan tribesmen. It is ri!h in #hos#hates$ in the

#rodu!tion of whi!h it is an im#ortant !om#etitor of Moro!!o in the international #hos#hates industry$ and has abundant

fishin" resour!es. In 19$ the eneral :ssembly indi!ated that the de!olonisation of the territory should o!!ur on the

basis of the ri"ht to self5determination as e*#ressed in the eneral :ssembly resolution 1@1 and in%ited 3#ain$ in

!onsultation with the nei"hbourin" 3tates of Mauritania and Moro!!o$ to determine at the earliest #ossible date=the#ro!edures for the holdin" of a referendum under nited 2ations aus#i!es with a %iew to enablin" the indi"enous

#o#ulation of the territory to e*er!ise freely its ri"ht to self5determination.> :fter mu!h delay$ 3#ain a"reed to hold a

referendum of the #eo#le in the 3#anish 3ahara under 2 su#er%ision in 197@. :t this #oint$ in" assan$ who had#re%iously su##orted the a##li!ation of the #rin!i#le of self5determination to the 3#anish 3ahara$ !laimed the territory for

Moro!!o on the basis of histori! title> #redatin" 3#ain(s !olonisation of the territory. Mauritania made a similar

o%erla##in" !laim. n the initiati%e of these two states$ the "eneral :ssembly re;uested in 197 an o#inion form the

4ourt on the followin" ;uestions,

1. Was Western 3ahara Aio de ro and 3a-iet 6l amra/ at the time of !olonisation by 3#ain a territory

belon"in" to no one terra nullius/ If the answer to the first ;uestion is in the ne"ati%e$

The : too- note 'with a##re!iation( of the 4ourts o#inion. In the abo%e !ase$ the 4ourt a!!e#tedthat the #rin!i#le of self5determination is a #art of !ustomary international law.

6ilarti!a # ena'"rala0 supra

Namibia (/outh $est Africa) Case0 19BB (dissentin! -ud!ement by 2ud!e ana,a)

C0


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Soft Law

3oft laws are not formally bindin" laws. In fa!t$ they are non5bindin" laws. International a"reementsare statements whi!h are meant to be non5bindin" but e*#lain the #osition ta-en by the law.

he Nicara!ua Case'this was a non5bindin" law$ but it was used as #ersuasi%e ar"ument in this !ase

a"ainst the use of for!e.

#odification and Proressive Development of International Law

ne early attem#t of !odifyin" international law were the !on%ention that emer"ed from the

!onferen!e of 18=

The international law !ommission5 subsidiary or"an of the nited nations

Tutorial (otes- /ctober


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The #rin!i#le of nec nocent nec prosunta##lies in this situation. This means that you !an

neither suffer nor benefit from a treaty to whi!h you are not a #arty.

Where Treaty and !ustom !onfli!ts$ one e*#e!ts treaty to #re%ail. Eor althou"h !ustom loo-s

at "eneral state #ra!tise$ treaties loo- to the s#e!ifi! obli"ations of a stateG so%erei"n "i%en

throu"h !onsent. 3ee the Asylum Case

Subects of International Law andRecognition of States and !overn"ent

Sub!ects of International Law

International Personalities

This is another way of sayin" sub)e!ts of international law. Durin" the !lassi!al #eriod$ essentially

states were the only sub)e!ts of international law. owe%er$ the modern %iew holds that a %ariety ofnon5state entities ha%e elements of international #ersonality. owe%er$ only states in #rin!i#le ha%e

unlimited ri"hts and #ersonalities under international law. &ersonality will %ary a!!ordin" to

!ir!umstan!es.

(4onnell e*tra!t #". 98 arris/

The arti!le su""ests that the word '#erson( is used to refer to one who is a le"al a!tor$ but that it is

of no assistan!e in as!ertainin" who or what is !om#etent to a!t.> e !laims that only the rules oflaw !an determine this$ and they may sele!t different entities and endow them with different le"al

fun!tions$ so that it is a mista-e to su##ose that merely by des!ribin" an entity as a '#erson( one isformulatin" its !a#a!ities in law=>

(4onnell #uts forward the ;uestions he thin-s should be as-ed in these !ir!umstan!es. They

in!lude,

1. Do the rules of IL establish that this !laimant to !a#a!ity has the !a#a!ity whi!h it !laims


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It was stated in theonte#ideo Con#ention of &i!hts and Duties of /tates0 19 Art 1that,

The state as a #erson of international law should #ossess the followin" ;ualifi!ations,

: #ermanent #o#ulation

: defined territory o%ernment

4a#a!ity to enter into relations with other states

3ome interestin" fa!ts,

The total number of states in the international !ommunity now stands at 190. ?ati!an 4ity is

the only state that is "enerally re!o"nised by the international !ommunity that is not amember of the 2.

There is no limit to a state(s #o#ulation and territory

There must be a !om#etent "o%ernment

The state in ;uestion must not be a failed state. : failed state is one in whi!h institutions

and law and order ha%e totally or #artially !olla#sed under the #ressure and amidst the

!onfusion of eru#tin" %iolen!e$ yet whi!h subsist as a "hostly #resen!e on the world ma#.>Thurer5 International Ae%iew of the Aed 4ross$ 1999/

Thurer ar"ued that there are three main !hara!teristi!s of a failed state,

1. There is the "eo"ra#hi!al and territorial as#e!t=essentially asso!iated with internal

and endo"enous #roblems


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There is=no rule that the land frontiers of a 3tate must be fully delimitedand defined$ and often in %arious #la!es and for lon" #eriods they are no$ as is

shown by the !ase of the entry of :lbania into the Lea"ue of 2ations.>

6%en thou"h the territory may not be )oined "eo"ra#hi!ally$ the territory !an be )oined under a

!ommon le"al system. :-ehurst !ontends that defined territory alludes to '"eo"ra#hi!al areas

se#arated by borderlines from other areas and united under a !ommon le"al system.(> The territory

need not be of e*#li!it bi" si+e as IL hasn(t introdu!ed any s#e!ifi! re;uirements re"ardin" a state(sboundaries. 6.". Israel. The delimitation to a state(s boundaries is not ne!essarily essential to a state.

4. o%ernment

The main re;uirement of the "o%ernment is that it be effe!ti%e$ meanin" that it has effe!ti%e !ontrolo%er the territory and #o#ulation of the 3tate. The state would ha%e internal !ontrol !iti+en and

territory/ and e*ternal -ee#in" other states out of its affairs/. There are !ases where effe!ti%e !ontrol

has not been stri!tly a##lied$ e.". 3omalia and the 4i%il War.

When a new entity see-s to be!ome a state$ the re;uirement of effe!ti%e !ontrol will be more stri!tlya##lied. Eor instan!e$ if a new entity is tryin" to su!!eedGse#arate from a state$ they ha%e to satisfy

all re;uirements of the test. Durin" these situations$ the ori"inal "o%ernment will be #resumed to be!ontrolled. International Law is silent on !ases of su!!ession. It doesn(t e*#ressly #rohibit or

!ondone it. en!e$ e*istin" states are allowed to use for!e on se#arist mo%ements. IL also does not

im#ose the ty#e of "o%ernment a state should ha%e e*!e#t a#artheid whi!h has been outlawed underit/.

It was noted in i""ins$roblems and rocess0that what is absolutely !lear is that a loss of 'stableand effe!ti%e "o%ernment( does not remo%e the attribute of statehood$ on!e a!-nowled"ed.>

D. 4a#a!ity to enter into relations with other 3tates

In order for states to e*er!ise a !a#a!ity to enter into relations with other states$ they ha%e to be

inde#endent.

Austro'German Customs Union Case0 191

Inde#endent$ as defined by Jud"e :n+ilotti I this !ase was ta-en to mean the sole ri"ht of de!ision in all matters>.

Aestri!tions that are #la!ed on a state under international law do not affe!t that states inde#enden!e.

These resolutions are a way of re5instatin" the states so%erei"nty and it is ar"ued that so%erei"nty isthe way it was able to #ut these restri!tions on itself in the first #la!e.

:rti!le 10 of the r"anisation of :meri!an 3tates :3/ #ro%ides that all states under the inter5:meri!an system are #resumed to be e;ual and inde#endent and e%en if they do not ha%e the

!a#a!ity to enfor!e this inde#enden!e.

3tates re )udi!ially e;ual$ en)oy e;ual ri"hts and e;ual !a#a!ity to e*er!ise these ri"hts$ and

ha%e e;ual duties. The ri"hts of ea!h state de#end not u#on its #ower to ensure the e*er!ise

thereof$ but u#on the mere fa!t of its e*isten!e as a #erson under international law.

C


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: %ery low test of this is im#osed as all states will interlin-. 2o state is !om#letely inde#endent ofthe other$ e.". militaryGe!onomi! ties.

ther 4riteria

Aes#e!t for the ri"ht of self5determination #eo#les, if an entity intend to be!ome a new state

while denyin" the self5determination$ it ou"ht not to be a!!e#ted as a 3tate e.". Ahodesia

Aes#e!t for ra!ial e;uality, ra!ist ine;uality is a !riteria for an una!!e#tability o re!o"nisin" a!ountry as a 3tate e.". 3outh :fri!a

$andates1 Trusteeship Territories and Self-Determination

istori!ally$ there ha%e been some territories whi!h were not wholly inde#endent. Mandates and

trusteeshi# territories emer"ed after both World Wars. The ?i!toria(s #ower didn(t "ain any

so%erei"n ri"hts o%er these mandates. &ost5 WW


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37/90

The n has international le"al #ersonality arisin" from ne!essary im#li!ations deri%in" fromdomesti! law and ability to !on!lude treaties/

The 4ourt found that the #ersonality of the 2 is limited to its fun!tions e.". the 2 does not

#ossess all the ri"hts of a state. The 4ourt stated that the !a#a!ity the 2 does not ha%e is theri"ht to brin" a !laim a"ainst another state for dama"es suffered to them or an a"ent.

The 2 has the !a#a!ity to brin" a !laim a"ainst non5members. They had ob)e!ti%e

#ersonality e*istin" or both Members and non5Members/.

The o#inion saw the 2 as an inde#endent sub)e!t of law.

Individuals

The traditional %iew was that indi%iduals were not sub)e!ts under international law e.". !onte*t ofanti5sla%ery treaties. Today$ we see IL "i%in" indi%iduals some ri"hts and duties. ne duty is the

duty not to en"a"e in international !riminal !ondu!t. &ost WW


38/90

This !harter establishes the or"anisation of :meri!an 3tates$ to whi!h many !ommonwealth/

4aribbean 3tates are members. :rti!le @C of the 4harter outlines the %arious or"ans of the :3 thathas been established. They in!lude the eneral :ssembly$ the Meetin" of 4onsultation of Eorei"n

:ffairs$ the 4oun!ils$ the Inter5:meri!an Judi!ial 4ommittee$ and the Inter5:meri!an 4ommission

on uman Ai"hts sub5se!tion e/$ The eneral 3e!retariat and more.

The s#e!ifi! #ro%ision that lin-ed the 4harter to human ri"hts is :rti!le C. This arti!le outlines some

#rin!i#les re"ardin" the international standard of !ondu!t of ea!h state. It in%ol%es the faithful

fulfilment of obli"ations under the treaty$ "ood faith between !ontra!ts in%ol%in" states$ solidarity ofthe states$ the ri"ht to !hoose$ without interferen!e$ #oliti!al$ so!ial and e!onomi! stan!es$ the

elimination of e*treme #o%erty$ !ondemnation of war of a""ression$ issues of so!ial )usti!e$

e!onomi! !oo#eration and he edu!ation of #eo#le.

:rti!le 1C of the 4harter is e*a!tly the same as the Monte%ideo 4on%ention/

:rti!le 17 also ma-es a !onne!tion to the #rote!tion of human ri"hts. It states that,

6a!h state has the ri"ht to de%elo# its !ultural$ #oliti!al and e!onomi! life freely and naturally. In

this free de%elo#ment$ The 3tate shall res#e!t the ri"hts of the indi%idual and the #rin!i#les of

uni%ersal morality.

The :meri!an De!laration of the ri"hts and Duties of Man 198/

This was established before the 6 and 2 de!larations of human ri"hts. Thou"h its non5bindin" it

has been an authoritati%e inter#retation of what indi%idual human ri"hts are #rote!ted under the :3

4harter. The #reamble states that all men are born free and e;ual$ in di"nity and in ri"hts$ an$ bein"endowed by nature with reason and !ons!ien!e they should !ondu!t themsel%es as brothers one to

another.>

The :meri!an 4on%ention on uman Ai"hts 199/

To fully understand the role of the 4on%ention$ you ha%e to ta-e ea!h :rti!le in turn.

:rti!le 1 !reates a bindin" obli"ation on 3tates to res#e!t all indi%idual ri"hts.

:rti!le < im#oses a further obli"ation on 3tates to ena!t le"islation muni!i#al law/ to

address these ri"hts. 3e%eral 4ommonwealth 4aribbean 4ountries are members of the

4on%ention in!ludin" Barbados$ Jamai!a$ and 3urinam. Trinidad and Toba"o withdrew fromit lar"ely due to the de!ision inratt and or!an.

:rti!le establishes a basi! ri"ht to life5 to ha%e it res#e!ted$ for the abolition of the death#enalty e*!e#t in e*tenuatin" !ir!umstan!es/

C8


39/90

:rti!le deals with the #rohibition of sla%ery. It sates that no one shall be sub)e!t to sla%ery

or in%oluntary ser%itude 1/$ no one should be re;uired to #erform for!ed or !om#ulsorylabour

Ne#ille e?is # AG for 2amaica (ri#y Council)

They found that as a result of due #ro!ess$ the lo!al &ri%y 4oun!il has to wait for the inter5:meri!an #etition to be

e*hausted for the re#ort to be "i%en before it a!tually ma-es a de!ision.

:rti!le @ of the !on%ention states that the !ommission !an hear !om#laints a"ainst a 3tate

from other 3tates.

The only #uniti%e #owers that the !ommission has is writin" a bad re#ort or brin"in" a 3tate to !ourt.

b6 )ole of the American Declaration

The Inter-American #ourt of +uman )ihts

C9


40/90

:rti!le 1 of the 4on%ention states, only the 3tates &arties and the 4ommission shall ha%e the ri"ht

to submit a !ase to the 4ourt.>

If the 4ourt finds that a human ri"ht is li-ely to be %iolated$ it !an im#ose #ro%isional measures

a"ainst the state. If they do find a %iolation$ they ha%e !ertain #owers as set out under :rti!le C.

:rti!le 8 re;uires #arties to !om#ly with )ud"ements of the 4ourts$ but the 4ourts are #owerless in

enfor!in" their own )ud"ement.

7elasues &odri!ues Case 19

Manfredo ?elas;ue+$ a student at the 2ational :utonomous ni%ersity of onduras$ was %iolently detained without a

warrant for his arrest by members of the 2ational ffi!e of In%esti"ations D2I/ and 5< of the :rmed Eor!es of

onduras.> The detention too- #la!e in Te"u!i"al#a on the afternoon of 3e#tember 1

.ilaire0 Constantine and ;en-amin # (:88:)

The 4ommission !ontended that the 3tate is res#onsible for %iolatin" the :meri!an 4on%ention throu"h the arrest$

detention$ trial$ !on%i!tion and senten!in" to death by han"in" of the C< %i!tims in!luded in the #resent !ase #ursuant to

the ffences A!ainst the erson Actof Trinidad and Toba"o$ ena!ted in 19


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=there is #erha#s no sin"le !lass of offen!es whi!h %aries so widely both in !hara!ter and in

!ul#ability as=Hthe !ommon law definition of murderH= we may see the multifarious%ariety of the !rimes for whi!h death is the uniformed senten!e.

Trinidad was a!tually bein" s!rutinised be!ause of its mandatory of the death #enalty.

3e%eral )urisdi!tions$ e.". Jamai!a and Beli+e ha%e introdu!ed a distin!tion between !a#ital and non5!a#ital

murder.

Both the !ommission and the !ourt had sad that the :meri!an 4on%ention doesn(t #rohibit the death #enalty #erse. It was stated that in s#ite of the fa!t that the 4on%ention does not e*#ressly #rohibit the a##li!ation of thedeath #enalty$ the 4ourt has affirmed that the 4on%entional rules !on!ernin" the death #enalty should be

inter#reted as 'im#osin" restri!tions desi"ned to delimit stri!tly its a##li!ation and s!o#e$ in order to redu!e the

a##li!ation of the death #enalty to brin" about its "radual disa##earan!e.(>

The 4ourt found that :rti!le 1/ of the 4on%ention doesn(t allow mandatory #unishment as it !ontra%enes the

ri"ht to life. The 4ourt found that the :&: 19


42/90

he .oly /ee and 7atican City

6%en thou"h the oly 3ee does not ha%e territory$ it does ha%e the !a#a!ity to a!t internationally e.". si"nin" treaties and

di#lomati! status. The #ersonality of the oly 3ee is distin!t from the #ersonality of the 3tate of ?ati!an 4ity. ne is a

non5territorial institution and the other a 3tate. The #a#a!y as a reli"ious or"an is a sub)e!t of international law and

!a#able of international ri"hts and duties. The fa!t that the oly 3ee is a non5territorial institution is no lon"er re"arded

as a reason for denyin" it international #ersonality.

)econition of States and 'overnments

This to#i! in%ol%es two !ate"ories,

i. Ae!o"nition of statesii. Ae!o"nition of "o%ernments

)econition of States

This refers to the le"al a!t by whi!h states show a willin"ness to deal with a new 3tate. It has two

le"al fun!tions,

i. To !onstitute a le"al determination of statehood

ii. It(s a!tually a #re5!ondition for the establishment of le"al relations between states.

Ae!o"nition !an be e*#li!it or !an arise by im#li!ation$ e.". si"nin" a bilateral treaty et!. 4ertain

non5state a!tors !an ha%e !ertain a!ts under international #ersonality. There is no #re!ise !atalo"ueof a!ts that im#ly re!o"nition. 6ntry into di#lomati! relations !learly im#lies it.

Theories of Ae!o"nition

1/ 4onstituti%e Theory

This sees the a!t o re!o"nition as bein" a ne!essary !om#onent of statehood. By re!o"nisin" a state$you !onstituteG!reate the state. nder this theory$ without re!o"nition an entity !annot be!ome a state

and would not ha%e the ri"hts and duties asso!iated with statehood.

onte#ideo Con#ention

This stated that a new state must ha%e the !a#a!ity to enter into relations with other states. This!ould #ose some #ossible #roblems. Eor one$ ;uestions re"ardin" the e*isten!e of states are left in

the hands of other states and the #ower is li-ely to be abused. 3e!ondly$ there !ould be serious

im#li!ations for entities that are not re!o"nised as states. Thirdly$ it would allow other states tointer%ene in the territories of non5states the rule of non5inter%ention only a##lies to states/. Eourthly$we ;uestion what would ha##en if only one other state re!o"nises that other !ountry. 2 this !ase$

would you be re"arded as a state only with res#e!t to that other state These thin"s must be -e#t in

mind.


43/90

Ian Brownlie su""ests that this theory$ alon" with the 4onstituti%e theory$ is hi"hly and hea%ily

o%er5em#hasised in their definition. In sayin" this$ this theory %iews re!o"nition in a %ery differentmanner to the !onstituti%e. If a new state !omes into e*isten!e as a matter of fa!t it be!omes an

international #erson re"ardless of whether another state re!o"nises it or not. :!!ordin" to this %iew$

re!o"nition would be %ital. The role here )ust adds a measure of !ertainty to a situation that alreadye*ists. Ae!o"nition would ser%e to !onfirm the -nowled"e of other states and a!-nowled"e that

international relations would now be #ossible. This is the theory that is most #o#ular amon" writes.

3u##ort

6%iden!e that some states ha%e held entities that ha%e not been re!o"nised as res#onsible for

%iolations of international law.

:rti!le 1C of the :3 is identi!al to :rti!le C of the Monte%ideo 4on%ention. The referen!e

to the #ro%ision is in relation to the #oliti!al e*isten!e$ not a le"al one.

&roblems

What if only one other state re!o"nises the entity

C/ Modified 4onstituti%e Theory

This is an attem#t to !ombine both theories and arri%e at a medium. It was su""ested in Jennin"s and

Watts$ ppenheimHs "nternational a?09thedition$ at #a"e 1C0 that,

The o%erwhelmin" #ra!tise of states does not a!!e#t that the mere !laim of a !ommunity to be an

inde#endent state automati!ally "i%es it a ri"ht to be so re"arded$ or that an e*istin" state is )ustified

in re!o"nisin" or refusin" to re!o"nise a new !ommunity as a state in disre"ard of whether it fulfilsthe fa!tual re;uirements of statehood. While the "rant of re!o"nition is within the dis!retion of the

states$ it is not a matter of arbitrary will or #oliti!al !on!ession$ but I "i%en or refused in a!!ordan!e

with le"al #rin!i#le. That #rin!i#le$ whi!h a##lies ali-e to re!o"nition of states$ "o%ernments$

belli"erents$ insur"ents$ is that when !ertain !onditions of fa!t as may re!o"nition a!!orded beforethose fa!ts are !learly established/ be !onsidered to !onstitute inter%entionF and that while

re!o"nition is a!!ordin"ly de!laratory of those fa!ts$ it is also !onstituti%e of the ri"hts and duties of

the re!o"nised !ommunity in its relations with the re!o"nisin" state.

Ae!o"nition of 3tates5 3tate &ra!tise

1. The &ra!tise

4annot fit in either of the two theories

In some !ases$ the refuses to follow any #arti!ular theory be!ause the Monte%ideo

4on%ention has not been satisfied stemmin" from the disinte"ration of the so!ialistfederal re#ubli! of Ku"osla%ia 3EAK//

There are other !ases where the was not "ranted re!o"nition be!ause of #oliti!al

fa!tors e.". 2orth orea$ the Tur-ish Ae#ubli! of 4y#rus and Taiwan


44/90

The re!ent !onfli!t re"ardin" the dissolution of Ku"osla%ia shows us how re!o"nition is

a##lied in #ra!tise

The !ommission was restri!ted by two do!uments,

' the 64 "uidelines a##lyin" to former 33A and Ku"osla%ia/' The 64 de!laration on Ku"osla%ia a##lyin" only to Ku"osla%ia/

The do!uments a!;uire res#e!t for human ri"hts and res#e!t to other international le"al

obli"ations that ha%e to be satisfied for re!o"nition by other states.

#inion 10 dis!usses the Monte%ideo 4on%ention and its re;uirements with re"ards to 3erbia

and Montene"ro. The ;uestion they loo-ed at was whether 3OM !ould be the state they

wanted it to be Eederal Ae#ubli! of Ku"osla%ia5 EAK/. The !ommission #ointed out that inearlier !ases$ it had held that Ku"osla%ia has !eased to e*ist and so 3OM !ould not be a

!ontinuation of somethin" no lon"er in e*isten!e.

In #ara"ra#h of the o#inion$ it was e*#ressly stated that re!o"nition is #urely de!laratory.

Bu its nonetheless a dis!retionary a!t whi!h !an be "rantedGwithheld with res#e!t tointernational law.

The 3e!urity 4oun!il Aesolution 1C1

The former :rti!le 1C su##orts the de!laratory a##roa!h/

$andatory (on-)econition

:ll 3tates ha%e to follow 2 3e!urity 4oun!il de!isions on these matters e.". 3outhern Ahodesiaand the 3mith a#artheid re"ime. ere the nited 2ations 3e!urity 4oun!il #assed a resolution

a"ainst attem#tin" a new 3tate under an a#artheid re"ime.

&remature re!o"nition of a 3tate

6ssentially the #remature re!o"nition of a 3tate would %iolate the international rule of non5

inter%ention.

)econition of 'overnments


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This !an be di%ided into the same two !ate"ories. owe%er$ with res#e!t to this$ the !onstituti%e

theory will dominate. : !onse;uen!e of the re!o"nition of "o%ernment is the automati! re!o"nitionof a state. owe%er$ there are a number of differen!es.

La!- of re!o"nition of a new "o%ernment doesn(t mean that the re!o"nition of a new state iswithdrawn. The effe!ts may be similar for relations with the "o%ernment interlin-s with relationshi#

with the state$ e.". 4i%il War and strife where the international #ersonality of the state will remain

inta!t/.

There are !ertain !ases where re!o"nition will not #ose mu!h of a #roblem$ e.". a resolution that

doesn(t affe!t the ead of 3tate the renada In!ident/

There are !ertain situations where the "o%ernment has been !han"ed by abnormal means. ere$ the

Monte%ideo 4on%ention on effe!ti%eness !omes into #la!e. The new "o%ernment must ha%e

effe!ti%e !ontrol o%er the #o#ulation and territory of the 3tate. This is sti#ulated under the 6stradado!trine. The ad%anta"e of this do!trine is that there is no ;uestion of a##ro%al of a "o%ernment

bein" mista-en.

State Practise and )econition of 'overnment

inoco Arbitration (Great ;ritain # Costa &ico'19:)

In 1917$ Tino!o ousted the "o%ernment of 4osta Ai!a by for!e. 6le!tions were held and Hfor a full

two years Tino!o and the le"islati%e assembly under him #ea!efully administered the affairs o the"o%ernment of 4osta Ai!a. In 1919$ Tino!o was ousted in his turn and the new "o%ernment

re#udiated !ertain obli"ations underta-en by the Tino!o "o%ernment towards British nationals. In the

!ourse of rulin" u#on the !laims brou"ht by reta Britain on the basis of these obli"ations$ thearbitrator dis!ussed the ;uestion of re!o"nition.

Taft 4J stated that from the e%iden!e=the Tino!o "o%ernment was an a!tual so%erei"n"o%ernment.> e further su##lemented that a number of thin"s !ould be dedu!ed from the !ase at

hand,

i. Ae!o"nition or non5re!o"nition by other states only !ounts as e%iden!eii. If re!o"nition or non5re!o"nition was only based on #oliti!al fa!tors$ then it would ha%e less

e%idential wei"ht

iii. The offi!ially had to re!o"nise the Tino!o "o%ernment

Modern &ra!tise

In 1980$ the British "o%ernment ado#ted a similar a##roa!h to the 6strada do!trine

6%en if there has been an un!onstitutional !han"e of "o%ernment$ the !an de!ide whetherto !ontinue relations based on effe!ti%eness.

The 3 &ra!tise

@


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This$ in essen!e is similar to that of the

Deals mainly with effe!ti%eness the notion of effe!ti%e !ontrol/

In 1977$ De#uty 3e!retary of 3tate 4hristo#her stated,

Withholdin" di#lomati! relations from these re"imes$ after they ha%e obtained effe!ti%e!ontrol$ #enali+es us. It means that we forsa-e mu!h of the !han!e to influen!e the attitudes

and !ondu!t of a new re"ime=Isolation may well brin" out the worst in the new "o%ernment.

This notes a refusal to follow the #oliti!al a##roa!h in terms of "o%ernment e.". 2orth orea and:f"hanistan/

Effects of )econition

Ae!o"nition of a new state allows the states to e*er!ise ri"hts and duties under international

law with res#e!t to other states that ha%e re!o"nised it.

The main !onse;uen!e to this is that a new state of "o%ernment !an brin" !laims or defend!laims before a !ommittee. 6%en in !ases of non5re!o"nition$ some muni!i#al !ourts will

allow a non5entity to brin" forward a !laim under their )urisdi!tion.

Carl Ieiss /tiftun! # &ayner and =eeler td (No%:) E19BF .

43 is a erman !haritable foundation that ma-es o#ti! instruments. nder the !onstitution$ it is run by a s#e!ial board.

:fter the Eirst World War$ the board was the Minister of 6du!ation of Thurin"ia$ a state within ermany. In 19@$Thurin"ia be!ame a #art of the Aussian one of !!u#ied ermany. In 199$ the 33A handed o%er "o%ernment of its

+one to the erman Demo!rati! Ae#ubli!. In 9@


47/90

In January 1991$ the Ae#ubli! of 3omalia bou"ht a !ar"o of ri!e for deli%ery by shi# to its !a#ital$ Mo"adishu. By the

time the shi# arri%ed offshore$ the 3omali "o%ernment of &resident 3iad Barre had been o%erthrown and a !i%il war wasin #ro"ress. The !a#tain of the shi# de!ided that it was too dan"erous to deli%er the !ar"o. By order of the !ommer!ial

!ourt in London$ it was sold and the #ro!eeds #aid into !ourt. In July 1991$ the D)ibouti :"reement$ followin" an

international !onferen!e of interested states and #arties$ nominated Mr. Mahdi as the interim &resident of 3omalia. e

a##ointed Mr. Nalib as his &rime Minister. In these #ro!eedin"s$ the ;uestion was whether the P< million in !ourt that

belon"ed to the Ae#ubli! of 3omalia !ould be #aid out to 4rossman Blo!F the soli!itors were a!tin" for the interim

"o%ernment of Mr. Nalib.

ne ;uestion #ut forward by obhouse J was, if re!o"nition by er Ma)esty(s "o%ernment is no lon"er the !riterion ofthe lo!us standi of a forei"n '"o%ernment( in the 6n"lish 4ourts and the #ossession of a le"al #ersona in 6n"lish Law$

what !riterion is the 4ourt to a##ly e found that we shouldn(t be loo-in" to formal re!o"nition by the "o%ernment.

They needed to e*amine whether the 3omali "o%ernment was effe!ti%e and whether the a##ears to ha%e re!o"nised

the "o%ernment by %irtue of its dealin". The !ourts answered the latter in the ne"ati%e. owe%er$ the former ;uestion was

answered in the #ositi%e as the ar"uments brou"ht forward was treated a e%iden!e$ not as !on!lusi%e. They found that the

3omali "o%ernment was not effe!ti%e. They went on to loo- at the effe!t of other states and international or"anisations.

They found that the rea!tion of international or"anisations would be additional information as to the effe!ti%eness of the

"o%ernment.

International Law and Munici#al Law

The monist and dualist framewor- offers two !om#etin" %iews of the relationshi# of international

law and muni!i#al law.

Monism5 states that the two systems are united and they are a #art of the sin"le !on!e#tion of

law

Dualism5 states that IL and muni!i#al law are two wholly distin!t system of law Hin!ludin" their

sour!e and substan!eF one !annot be used o alter the other.

riuet # ;ath (1B4) =;

In this !ase$ in whi!h the D$ a domesti! ser%ant of the Ba%arian Minister to reat Britain$ su!!essfully !laimed

di#lomati! immunity$ Lord Mansfield dis!ussed the #osition of international law in 6n"lish law. e ;uoted Lord Talbot

in the !ase of;u#ot # ;arbuit (1)when he stated that the law of nations$ in its full e*tent was #art of the law of

6n"land=>

Bla!-stone$ in his boo- Commentaries on the a?s of *n!land0 wrote that the law of nationsH!ustomary international law is here ado#ted in its full e*tent by the !ommon law$ and is held to be

a#art #f the law of the land.> This statement is a monist statement.

Eit+mauri!e :rti!le

:r"ues that the !ontro%ersy surroundin" monism and dualism borders ones su#rema!y o%er

another$ whether they !an e*ist inde#endently$ or whether they are a #art of the same orderis one su#erior within that order/.

e ar"ues that ea!h !ountry has there own laws to deal with !onfli!t arisin" within the state

and is settled in their !ourts. ltimately$ he ar"ues that there !an be no !onfli!t between anytwo systems in the domesti! field. e states that any !onfli!t at the international le%el would

be resol%ed by international law and has no bearin" on muni!i#al law.

7


48/90

e summates by sayin" that international law and muni!i#al law !an ne%er !ome into

!onfli!t. e su""ests that what mi"ht o!!ur would be a !onfli!t of obli"ations$ or an inabilityfor the state on the domesti! #lane to a!t in the manner re;uired by international law.

It is well to note that dualist see muni!i#al law and international law as se#arate and in !onfli!t$ onewill trium#h o%er the other.

Status of $unicipal Law at International Level

ne of the main ;uestion as-ed here is, would there be an o!!asion where an international )ud"e

would ha%e to a##ly muni!i#al law

:t the international le%el$ international law is su#reme. In the !ase of bser#er ission

Case (Ad#isory pinion) "C20it was stated that,

The I4J referred in #ara"ra#h @7$ to the fundamental #rin!i#le of international law that

international aw #re%ails o%er domesti! law. This #rin!i#le was endorsed by )udi!ial de!isionas lon" a"o as the arbitral award o 1 3e#tember 187< in the :labama !ase between reat

Britain and the nited 3tates$ and has fre;uently been re!alled sin!e=>

If a state %iolates international law$ then it would be liable re"ardless of its laws at the

muni!i#al le%el note that it will affe!t !ustomary international law as well/.

Alabama Claims Arbitration (U/ # G;) E1:F

In this !ase$ the tribunal re)e!ted the British ar"ument that be!ause its !onstitutional law was not su!h as to #ro%ide itwith the #ower to interfere with the #ri%ate !onstru!tion and sailin" of the shi#s !on!erned$ reat Britain had not

%iolated its obli"ations as a neutral in the nites 3tates 4i%il war by allowin" the !onstru!tion and sailin" to o!!ur.

:rti!le


49/90

international law$ but the inter#retation of muni!i#al law. In the followin" #assa"e the !ourt !onsidered how it should "o

about inter#retin" muni!i#al law when they are !alled u#on to do so. The a"reement between the #arties referrin" the!ase to the 4ourt read in #art, in estimatin" the wei"ht to be atta!hed to any muni!i#al law of either !ountry whi!h may

be a##li!able to the dis#ute$ the #ermanent !ourt of international )usti!e shall not be bound by the de!isions of the

res#e!ti%e !ourts.>

There were two main issues of !ontention in this !ase. Erom this$ two ;uestions !an be deri%ed,

i. 4ould the !ourt$ in this !ase$ loo- at Bra+ilian law

ii. If so$ was it bound to follow domesti! )urisdi!tion on the matter

It was stated in the )ud"ement of the !ourt that,

=the 4ourt may #ossibly be obli"ed to obtain -nowled"e re"ardin" the muni!i#al law whi!h

has to be a##lied=n!e the 4ourt has arri%ed at the !on!lusion that it is ne!essary to a##ly

the muni!i#al law f a #arti!ular !ountry$ there seems no doubt that it must see- to a##ly it as it

would be a##lied in that !ountry.>

It "oes on to !omment that =the 4ourt must #ay the utmost re"ard to the de!isions of the muni!i#al !ourts of a !ountry$

for it is with the aid of their )uris#ruden!e that it will be enabled to de!ide what are the rules whi!h$ in a!tual fa!t$ area##lied in the !ountry of the la of whi!h is re!o"nised as a##li!able in a "i%en !ase.>

In relation to the se!ond ;uestion$ the Treaty stated that the 4ourt wasn(t bound by de!isions of domesti! !ourts.

owe%er$ e%en thou"h they are "o%erned by the Treaty$ the !ourt tried to )ustify why it !an loo- at domesti! law and thene!essity in followin" it. Thou"h the !ourt !ould ha%e !hosen to i"nore this$ they felt the need to assess the issue. It was

stated in this !ase that while the 4ourt is authorised to de#art from the )uris#ruden!e of the muni!i#al !ourts$ it remains

entirely free to de!ide that there is no "round or attributin" to the muni!i#al law a meanin" other than that attributed to it

by that )uris#ruden!e.

Status of International Law in $unicipal #ourts

The main ;uestion here is whether or not a )ud"e from a lo!al )urisdi!tion !ites international law. If

so$ are there any limitations in!umbent u#on him

'eneral Principles

Domesti! !ourts often tend to #re%ent !onfli!ts between international law and domesti! law

by inter#retin" the latter to not !onfli!t with the former. 4ourts do so be!ause they areo#eratin" under the #resum#tion that 3tates don(t tend to %iolate international law. This

notion is e%en inherent in some !onstitutions. Eor e*am#le$ #ro%ision


50/90

Lord illa!hy !ommented that it may #robably be !on!eded that there is always a !ertain #resum#tion a"ainst the

le"islature of a !ountry assertin" or assumin" the e*isten!e of a territorial )urisdi!tion "oin" !learly beyond limitsestablished by the !ommon !onsent of nations5 that is o say$ by international law=>

The #rime tas- of any domesti! )ud"e is to ma-e lo!alG muni!i#al law effe!ti%e. They are not

meant to a##ly international law

There are two "eneral a##roa!hes to a##lyin" international law to the 3tate. This !an be

de#endent on both !ustomary and treaty law. Bearin" in mind that some states in%ol%e!ustomary law as bein" a #art of the law of the land./. 3tates tend to in!or#orate$ throu"h

either the !onstitution or !ommon law #ra!tise$ international law as #art of the law of theland.

i. International law is automati!ally in!or#orated as law of the landii. Eor !ustomary la to be in!e#ted as #art of the law of the land$ some further a!tion

needs to be ta-en.

& # =eyn E1BF

The Eran!onia$ a erman shi#$ !ollided with the 3trath!lyde$

public%20international%20law.doc_0.odt

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