International law

1. INTRODUCTION TO International law

• Basically defined, international law is simply the set of rules that countries follow in dealing with each
other. There are three distinct legal processes that can be identified in International Law that include
Public International Law (The relationship between sovereign states and international entities such as
International Criminal Court), Private International Law

• (Addressing questions of jurisdiction in conflict), and Supranational Law (The set of collective laws that
sovereign states voluntarily yield to). But this basic definition must be supplemented with three more-
complex explanations—is international law really law, the way the laws of the United States, enforced
by courts and police, are? Where do we find the rules of international law? Are they written down
somewhere? Finally, how is international law enforced, if there is no world government?

The division of international law PUBLIC INTERNATIONAL LAW (INTERNATIONAL LAW) PRIVATE
INTERNATIONAL LAW (CONFLICT OF LAWS)

What is “private international law”? • The body of law of law that regulates the relations between
persons and entities in different states • Private international law = “conflict of laws”

THE NATURE OF INTERNATIONAL LAW

Definition “International law is the collection of rules and norms that states and other actors feel an
obligation to obey in their mutual relations and commonly do obey” Conwey W. Henderson,
Understanding International Law, 2010.

In the past, international law was commonly described as “the law that regulates the relations between
states, amongst each other” or “the system of legal norms regulating mutual relations between states”,
or “the set of rules recognized by states and concerning their external relations”, or “the set of rules
binding within the international community”.

An interesting definition of international law was formulated in the 1970s by a Russian international
lawyer Prof. G. I.Tunkin: “contemporary international law is the aggregate of norms which are created
by agreement between states of different social systems, reflect the concordant wills of states and have
a generally democratic character, regulate relations between them in the process of struggle and
cooperation in the direction of ensuring peace and peaceful coexistence and freedom and
independence of peoples, and are secured when necessary by coercion effectuated by states
individually or collectively”.

Some examples of more recent definitions of international law include: “The system of law regulating
the interrelationship of sovereign states and their rights and duties with regard to one another. In
addition, certain international organizations (such as the United Nations), companies, and sometimes
individuals (e.g. in the sphere of human rights) may have rights or duties under international
law.”(Oxford Dictionary of Law, 1997, p. 240)

• “ Today, international law refers to those rules and norms which regulate the conduct of states and
other entities which at any time are recognized as being endowed with international personality, for
example international organizations and individuals, in their relations with each other” (Rebecca M.M.
Wallace, International Law (Sweet and Maxwell, 1995, p. 1).

Is international law a ‘real’ law? International law is practiced on a daily basis in the Foreign Offices,
national courts and other governmental organs of states; “The evidence is that reference to
international law has been a normal part of the process of decision-making” I. Brownlie o States do not
claim that they are above the law or that international law does not bind them;

The overwhelming majority of international legal rules are consistently obeyed; “It is probably the case
that almost all nations observe almost all principles of international law and almost all of their
obligations almost all of the time” (L. Henkin, How Nations Behave, p. 47).

Basic characteristics of international law: • International law has only a limited number of
developed legal institutions; • In comparison with national law, international law is decentralized:

Decentralized international law-making; Decentralized international law enforcement; Decentralized,

voluntary international law adjudication.

18. THE NATURE OF INTERNATIONAL LAW • Why is international law binding on States and other
actors? The command theory; The consensual theory/consensus; Natural law.

19. THE Functions OF INTERNATIONAL LAW The Functions of International Law: • To arrange for the
cooperation most actors wish to have most of the time; • To identify the membership of an
international society of sovereign states; • To regulate the competing interests of the various actors and
to carry their agreements into the future;

20. THE Functions OF INTERNATIONAL LAW • To empower weaker states as they press for change
against the will of the powerful; • To promote justice; • To outlaw war.

21. Weakness of international laws • 1. Lack of institutions • 2. Lack of certainty • 3. Vital interests • 4.
Vital rules

22. Development of Public international law in India • International law can be divided into Eight stages.
• 1. The primitive and Ancient Period • 2. The Middle Age • 3. International Law in the 15th and 16th
Centuries • 4. The Era of Hugo Grotius -the thereafter • 5. The 19th Century • 6.The First World War-and
thereafter • 7.The Second-World War- and thereafter • 8. The Present-day Statue of International Law.
Relationship between International Law
and Domestic Law
Theories of Relationship • Monism/ unity of the legal system • Dualism/separation of legal system •
Moderate or middle path

Concept of Monism
The monists view that - there is no difference between national and international law. They think that
the science of law or the body of law is the law itself. The national law and the international law are the
just two branches of a single body of science of law. They are the constituent elements of a single body
of law.

They argue that -the rules of both international and national law operate in the same sphere of
influence and concerned with the same subject matter, that is, individuals. What ever legal systems we
deal with, be it national, regional or international, all are meant to be dealing with individuals. In the
words of Lauterpacht, state does not exist as a legal entity on its own. It is the individual human beings
that are the fundamental element of all societies.

The purpose of both legal systems is identical. - the rights and obligations of one legal system can be
transferable to other system. For example, human rights are available in domestic legal system as well
as in international legal system. -national and international law are complementary or supportive to
each other in the sense that rights and obligations under both systems are there to serve the interests of
people.

Kelsen, the monist positivist argues that international law derives from the practice of states and
national law derives from state as established in international law.

The monist naturalists argue both systems are subject to higher legal order, the law of nature.

Concept of Dualism:
Dualists argue that:

a) International and national law are completely two separate and distinct legal systems.
b) They operate into separate water-tight compartment.
c) They do not operate in the same sphere of influence.

• International law and national law differ as to their sources, the relation they regulate and their
legal content and application.
 • National legal systems are not common, they are diverse and thus they cannot interact with
international law because of significant diversity and the international laws are common in
nature.
• International law regulates the relations between states where as national law regulates the
rights and obligations of individuals within the states.
• There is no room for the transforming rights and obligations from one system to another.
Because, the individuals are the citizens of a country and subject to the national law. In addition,
the sources and the subject of both systems are different. There are many points where they
come into conflict.
• National law operates vertically where sovereign power of the state is the law-maker and all
others are law-abider while international law operates horizontally where states are both
creator and abider of the

Moderate or middle ground (a third group):

This is the theory of coordination, not confrontation like monism and dualism.

This theory supposes that both monism and dualism are the extreme expression of articulating the
relationship between national and international law which is flawed more or less, because they do not
cooperate and conflict perse.

It argues against dualism that international and national law interact and intersect. The conflict lies with
the obligation created by them, not with system itself.

It argues against monism that the transfer of rights and obligations as monists claim is not automatic (
(see the decision of Federal Court in Minister for Immigration and Ethnic Affairs v Teoh 1995: the place
of unincorporated treaty in Australian law was not considered).

The transfer of rights and obligations can be possible through a process of incorporation, harmonization
and adoption. In another words, there must be a mechanism through which rights and obligations can
be transferred from one system to another. For examples, adoption of treaty provisions into national
law, European Union’s plan to harmonize the 27 conflicting domestic laws

The dualist view is not quite true that obligations of international and domestic law are not transferable.
For example, as per Art.38(1) (c) domestic law is a fertile source of international law at the formative
stage. Another example is, there are too many areas of domestic law which are influenced by
international law such as human rights, environmental law, trade law, and law of international rivers or
multi-territorial rivers. It argues that both systems benefit from each other.

It is true that international will not interfere in internal matter of a state. But this principle of non-
interference on the part of international law is not absolute.

It also argues that it is erroneous for both groups to argue that two legal system conflict or unify
among each other. It is the obligations that emanate from the systems can come into conflict. It
 is evident in many cross- broader issues such as terrorism, human rights, environment, global
warming. In all these issues the interests of state and the interests of people are different. For
example China’s human rights law can come into conflict with various human rights obligations
developed in UN human rights instruments.

Conclusion
National and international legal system operate in their own domain without any presumption of
conflict or hostility to each other. • Both systems are important and mutually supportive and interacting
with each other in contemporary context in relation to many trans-boundary issues. For example, state
has the primary responsibility for the implementation of HR, the secondary responsibility lies with
international authority formed under international law.

International law is not concerned at all about domestic law unless a domestic law or domestic Act
infringes or violates the assumed or assigned international obligation ( for that state) emanating from
international law. Examples can be taken from forms of government or South African apartheid policy
under Article 4 ( discriminates indigenous black voters) of the Electoral Act as well as in the constitution
of South Africa violated an obligation as they assumed by ratifying 1965 UN Convention on the
Elimination of Racial Discrimination. Here the obligation of domestic law comes into conflict with
international obligation.

Relation between national and international law:

Australian perspective, International customary law is not automatically a part of Australian law. In
Chow Hung Ching v R Lathman CJ argued ‘international law is not as such part of the law of
Australia…but a universally recognised principle of international law would be applied by our courts’. •
The ruling in Mabo v Queensland ( No2) recognises the normative relevance of customary international
law to the Australian common law and their relationship more exact with greater authoritative weight,
but does not endorse the automatic incorporation theory. International law is thought to be an
influence on , rather than part of common law.

International treaty obligations voluntarily assumed by Australia do not necessarily have legal effect
within Australia. To create treaty obligation within Australia, incorporation of treaty into national law
through the enactment of implementing legislation is essential. • Obligations under unincorporated
treaties are not binding in Australia. In Minister for Immigration and Ethnic Affairs v Teoh case, the High
Court held that treaty is not a part of Australian law until enacted as legislation, however the ratification
of convention has significance, it is not a mere ineffectual act.

Relevance of international treaties in interpreting domestic statutes: In Polities v Commonwealth it is

recognised that a statute is to be interpreted and applied , as per as its language permits, so that it is in
conformity, not in conflict with the established rules of international law.

Influence of international law on domestic law in Australia:

Influence of human rights treaties: In Mabo Case Brennan J said: The opening up of international
remedies to individuals…brings to bear on the common the powerful influence of the Covenant and the
international standards it purports.

Infusion of international law and jurisprudence into Australian common law in the field of human right
has been established through judicial activism. ( see Theophanous v Herald & Times Ltd, Levy v Victoria,
language v Australian Broadcasting Commission, Kruger v Commonwealth ( stolen generation case). •
Influence of trade and investment treaties

The subject of, and personality in,

International Law
• The concept of subject of international law is not same as international legal personality.
• The subject of any legal system is all about rights and obligations. If certain rights are conferred
on an entity under a legal system and that entity is required to perform certain duties under
that legal system, the entity is the subject of that legal system.
• When international law creates some rights for an entity and imposes some obligations, that
entity becomes the subject of international law.
• Broadly speaking, according to Martin Dixon, the main capacities of an international legal person
include the ability - to make claims before international ( and national) tribunals in order to
vindicate rights given by international law; - to be subject to some or all of the obligations
imposed by international law; and - to have the power to make valid international agreements
binding in international law.
• legal personality in international law does not mean only the holders of rights and obligations
under international law, but also include the capacity/ability to be the bearer of international
legal rights and obligations.

What is international legal personality?

Attributes of international legal personality include

a) capacity or ability to exercise rights conferred upon by international law;

b) capacity to be the bearer of rights and duties conferred upon by international law
c) capacity to perform obligations imposed upon by international law; and
d) capacity to sue and be sued under international law

Subjects of international law •

1. States
2. Non-state entities: international organizations, individuals, colonial, trust and non-self
governing territories
3. Controversial subjects: emerging State and revolutionary regimes
State as a subject of international law:

 Historically since the emergence of legal positivism in the 16th and 17th century’s states were
the sole subject and sole legal people of international law until 2nd WW. But after that States
are no longer the sole subject of international law.
 States are nevertheless the most important and dominant subject of international law in the
contemporary international law as international law was originally conceived as a system of
rules governing the relations of states among themselves. They have all of the capacities
required for subject-hood and international legal personality and it is with their rights and duties
that the larger part of international law is concerned.
 ICJ says ‘States are the objective and the principal subject of international law.
 The capacities of other international persons are dependent, at least, initially upon the
agreement of states. • To be a subject and a person of international law the State must have
qualifications as set out in Montevideo Convention on the Rights and Duties of States.

Non-state entities:

 International organizations as a subject and legal person

 International organizations are recognized as subjects of international law as well as
international legal persons such as UN, World Bank, IMF, WTO. These organizations have ample
influence on international law-making process more than many sovereign states.
 The international legal personality of UN has been recognized by ICJ in the Reparations case in
its Advisory Opinion sought by the UN on its capacity to bring an international claim against
Israel for reparations for the death Count Bernadotte. The ICJ held… the organization is an
international person….it is a subject of international law and capable of possessing international
rights and duties, and that it has the capacity to maintain its rights by bringing international
claims….
 The international voluntary Non-Governmental Organizations ( NGOs) such as Amnesty
International (for the protection and promotion of HR ) and Green Peace ( for environment) are
also recognized as having the status of international legal personality which they have acquired
through their capacity and ability to perform in international plane. • Organs of national
liberation movement enjoys some form of international legal personality specially following the
UN Declaration on the Granting of Independence of Colonial Countries in 1960.

Individuals as a subject of international law:

 Individuals are subjects of international law from time immemorial and still they are. Only the
positivism attempted to curtail their status with an argument that they are the object, not the
subject of international law.
 The movement for the protection and promotion of human rights after 2nd WW has elevated
the individuals to the status of subject of international as well as international legal person.
 They can enjoy the whole range of recognized rights under international legal system as well as
procedural locus standi before various international legal judicial and quasi-judicial forums.
Legal personality established under international criminal law : a. Article 6 of the Nuremberg Charter:
principles relating to international criminal responsibility of individuals against peace, war crimes and
crimes against humanity b. Decision of Nuremberg Tribunal: ‘International law imposes duties and
liabilities upon individuals as well as states’. c. Decision of Tokyo War Crimes Tribunal holding individuals
for war crimes d. Article 4 of the Convention on the Prevention and Punishment of the Crime of
Genocide 1948: ‘persons committing genocide …shall be punished, whether they are constitutionally
responsible rulers, public officials or private individuals’. e. The Rome Statute of ICC 1998: Articles 6, 7
and 8 establish individual criminal responsibility for the commission of any of listed crimes such as
genocide, war crimes, crimes against humanity etc. irrespective of the laws of his own country. f.
Mandate given to ICTY and ICTR to prosecute and punish individuals for the commission of atrocities,
ethnic cleansing, innocent civilian killings, war crimes and crimes against humanity during Yugoslovia
and Rwandan genocide. g. Art. 6 of ILC Draft Code on Offences against the Peace and Security of
Mankind 1987: Individual responsibility for committing , leading, planning, organising and ordering
crimes against peace and security h. Criminal responsibility under other international documents such as
art. 105 of UNCLOS regards piracy as a crime of international significance, providing remedies
enforceable in international law. .

 All international human rights treaties have given individuals a long list of substantive rights,
such as ICCPR and ICESCR, Convention on the Elimination of All Forms of Discrimination Against
Women, Convention on the Rights of Child 1989, UN Declaration on the Rights of Indigenous
Peoples 2007, regional conventions including European Convention on Human Rights 1950,
Inter- American Convention of Human Rights 1969, African Charter of Human and People’s
Rights 1979.

The status of exiled government in international law:

General conditions for acquiring international legal personality by a state government :

a) Effective territorial control

b) Effective internal stability/political authority
c) Power to enter into international relations

The exiled governments may enjoy some form of international legal personality, that means, partial
legal personality provided following conditions are met: 1. Ability to prove an effective political control
through • involvement in armed conflict, establishing armed forces, • Controlling merchant ships
carrying its flag, • rallying a large number of nationals to the cause of liberation of their country, •
maintaining authority over certain parts of its territory and population, and displaying partial
effectiveness by undermining the effective territorial control of its enemy. • Evidence of representative
character expressed through public support in democratic election

29. Continued… 2.Through active participation in international relations. 3. Ability to conduct external
activities governed by international law. For example, during the war of liberation, the exiled
government of Bangladesh opened diplomatic missions in London, New Delhi, Washington, Sweden and
Hong Kong.
30. Organs of national liberation war • Organs of national liberation war may enjoy international legal
personality, although they have some functional limitations. • The reasons/justification or legal
foundation for such status: a. recognition of war of liberation as international armed conflict by the1977
Additional protocol 1 to Four Geneva Conventions of 1948 and thus regulating the activities of national
liberation groups and freedom fighters under international law

31. Continued… b. The war of liberation is intended for establishing the people’s right to self-
determination which recognised as fundamental right and protected by international law (see art.1(1) of
ICCPR, 1966, art.1(1) of ICESCR,1966). Moreover, attainment of this right is one of the cardinal
objectives of UN charter. ( see art.1(2). The denial of this right constitutes a breach of specific and
obligatory provisions of the UN Charter, its various other authoritative prescriptions, and rules of
international law.

32. Continued… c. Engagement in diplomatic activities and the acceptance by UN of their participation in
international affairs. UNGA Resolution 3247 in 1974 authorises, national liberation groups to participate
in the sessions of the General Assembly, conferences, and meetings of specialised agencies. Example:
active participation of PLO in different UNGA meetings in the status of observer.

33. Multinational Corporations • Multinational corporations do not have any status in international law.
• The arguments are: a. they are profit-making entities, they are not meant for participation in
maintaining international relations for peace and security and therefore they should not be the subject
of international law. They are better to be left with self- regulation. b. they are treated as citizens of the
country of incorporation and subject to the laws of that country. ICJ in Bercelona Traction case in 1970
gave MNCs the same status as citizens , defined by their ties to a particular state of incorporation whose
law and jurisdiction are applicable.

34. Continued… c. MNCs are regulated by the market forces and there is no need for artificial control.
Artificial regulation may result in distortion and instability. • MNCs are treated as the objects of
international legal obligation as they a. play a major role on the international plane; b. generate
pressures on national authorities and international bodies; and c. influence the international decision-
making process.

35. Continued… • Initiatives for the regulation of MNCs under international law for MNCs 1.
Development of self-regulatory/non-binding instruments a. OECD Guidelines on Multinational
Enterprises 1976 b. UN Norms on the Responsibilities of Transnational Corporations and other Business
Enterprises with Regard to Human Rights,2003 c. ILO Tripartite Declaration of Principles Concerning
Multinational Enterprises and Social Policy,1977 ( Primary Responsibility for state and secondary
responsibility for MNCs) d. The New International Economic Order ( NIEO): a set of principles and
policies to regulate restrictive trade practice of MNCs

36. Continued… • Institutional initiative for regulation of MNCs and international plane a. UN
Commission on Transnational Corporations (established in 1979, closed in 1993) b. Commission on
International Investment and MNCs ,1995 ( as part of UNCTAD) c. Sessional Working Group on Working
Methods and Activities of MNCs ( set by UN Sub-commission on Human Rights) d. UN Global Compact (
Ten Principles in the areas of human rights, labour, environment and anti-corruption ) 1999, 2002

37. Continued… • Regional bodies such as European Union, European Council and Organisation of
American States • Way forward a. Development of normative standards b. likelihood of creating special
status for MNCs in customary international law c. Concerted effort for the development regulatory
regime with attribution of legal responsibility

38. The status of terrorist organizations • The terrorists organizations do not enjoy any international
legal personality for the simple reason that states are not willing to grant them any status in
international law. States think they should be tried under domestic criminal system. • The most
important point of argument against their status is based on jurisprudential contradiction or juridical
difficulty. If responsibility or obligation under international is attributed to them, they must also have
rights in international law. • The initiative for developing international law to combat global terrorism
has no concern for the status, personality and competence of terrorists under international law.

39. Continued… • Responsibility under international law State sponsored vs. private terrorism Article 8:
Responsibility of States for Internationally Wrongful Acts of 2001 Decision of ICJ in the Case Concerning
the Application of Genocide Convention ( Bosnia and Harzegovina v Serbia and Montenegro) • Rigid
approach: non-attribution of responsibility under international law • Flexible approach: Instances of
financing and safe hourbering.

40. Conclusion • The concept of personality is divisible, it can be lost and acquired. • Personality can be
partial or full. • Personality of states and others need not be identical, it can be dissimilar in terms of
rights and obligations.

41. International legal personality • Determine the status of terrorist organisations in international law
in terms of their legal personality. Do you think that terrorist organisations should be attributed legal
personality in international law in order to curb terrorism in wider scale.
Sources of international law
• The question of sources is fundamental in any system of law.

• Law making is a continuous activity in any viable legal system. • International legal system can
accommodate the changing requirements for regulation by: law making in new areas; and by upgrading
and refinement of existing laws, in the light of its law sources. • Considering the sources of international
law it is realized that the term “sources” implies many different, sometimes, conflicting meaning.

Article 38 of the Statute of the International Court of Justice: •

1. The Court, whose function is to decide in accordance with international law such disputes as are
submitted to it, shall apply:

(a) International conventions, whether general or particular, establishing rules recognized by the
contesting States;

(b) International custom, as evidence of a general practice accepted as law;

(c) The general principles of law recognized by civilized nations;

(d) Subject to the provisions of article 59, judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary means for the determination of the rule
of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the
parties agree thereto.

Treaties, custom, and principles of law, are sometimes referred to as "primary sources", • Judicial
decisions and the teachings of publicists are sometimes referred to as “subsidiary” or "secondary
sources" or “evidence of international law rules”.

George Schwarzenberger proposed the term ‘law creating process’ for primary sources i.e. treaties,
customs and general principles of law; and ‘law determining agencies’ for subsidiary means for
determination of law, i.e. judicial practice and doctrines.

Herbert Briggs pointing “the confusion of the term “sources” describes it as “the methods or procedures
by which international law is created.”

Oppenheim discussing its various meanings differentiates between formal and material sources: formal
being the source from which the legal rule derives its legal validity; and material providing the
substantive content of that rule, e.g. the formal source of custom may have its material source found in
a treaty concluded.
Discussing the difference between basis of law (common consent of international community), causes of
law (particular circumstances in the development of communities, suggesting need for a rule of
conduct), and sources of rules of law (process by which it first becomes identifiable as a rule of conduct
with legal force and from which it derives its legal validity). • Sources of the rules of law distinct from
the basis of the law, are as a whole related to the basis of the legal system. (Sir Robert Jennings, Sir
Watts Arthur, Oppenheim’s International Law, (Indian Branch: Peerson Education, 1996), 23.

According to Salmond, “a formal source is that from which a rule of law derives its force and validity.
The material sources, on the other hand, are those from which is derived the matter and not the validity
of the law. The material source supplies the substance of the rule to which the formal source gives the
nature and the law.” (J. W Salmond, Jurisprudance, 7th ed. (London: Sweet and Maxwell, 1924).

Article 38 1(a) of SICJ: ‘International Convention’

 ‘International conventions, whether general or particular, establishing rules expressly
recognized by the contesting states’.
 Whenever an international dispute is decided, its first application of the law is to find a treaty
application on the issue.
 In the presence of a treaty on related issue the decision is based on it.
 Historically treaties are the second source of international law.
 They were developed to give particularity to rules of mutual conduct, than was provided by a
custom.
 The word ‘convention’ means a treaty and whatever the nomenclature is, the substance is the
same: it is an agreement made between two or more States or other subjects of international
law.

Long before the establishment of UN and ICJ, in the 19th and 20th centuries, many treaties and
conventions played a great role in the development of international law, such as Geneva Convention
1864, Hague Conventions of 1899 and 1907, Treaty of Locarno 1925.

After establishment of UN in 1945, treaty acquired the most important mode of development of
international law, starting from Bill of Rights and under the United Nations Treaty Series many
thousand treaties have been registered with the United Nations.

According to Article 2 of the Vienna Convention on the Law of Treaty 1969, ‘treaty’ is defined as: “an
international agreement concluded between States in written form and governed by international
law, whether embodied in a single instrument or in two or more related instruments and whatever
its particular designation”.

 Consent to a treaty may be expressed by signature, ratification, or accession, and is binding on

the parties to it, who shall perform the treaty in good faith by applying the maxim pacta sunt
servanda.
 Applicable to all types of treaty: multi lateral or bilateral, universal or regional.
  Treaties which codify already existing customary law or which have in fact attained the status of
customary law are binding on non-party states as well.

Example: International Humanitarian Law (Geneva Conventions and Hague Conventions), Genocide
Conventions, Convention Against torture (CAT)1984, Vienna Convention on Diplomatic Relations, 1961,
UN Charter 1945 and Universal Declaration of Human Rights (UDHR) 1948.

 Treaties could be a direct source of international law or reflective of a customary or general

principles of law as evidence.
 International treaties could be a) law making treaties or b) treaty contracts.
a) Law- making Treaties:

Law-making treaties are those agreements whereby states elaborate their perception of international
law upon any given topic or establish new rules which are to guide them for the future in their
international conduct. Such lawmaking treaties, of necessity, require the participation of a large
number of states to emphasize this effect, and may produce rules that will bind all. Law making treaties
could be either enunciating rules of universal international law, e.g, Un Charter, or one laying down
general principles such as Geneva Conventions on the Law of the Sea (1958 and 1960) or Vienna
Convention on the Law of Treaties, 1969. (L.N. Tandon and S .K. Kapoor International Law,(Lahore:
Mansoor Book House, 2010), 101-102, and Malcolm N. Shaw, International Law,( United Kingdom:
Cambridge University Press 2008), 95).

Provisions of Law-making treaty are directly the source of international law. Starke, J.G.(Joseph Gabriel),
An Introduction to International law , (London: Butterworths, 1977), 48.

b) Treaty Contracts:
 Treaties dealing with special agreements between parties to the contract.
 The provisions of such treaties are binding only on the parties to the treaty.
 Such treaties also help the formation of international law through the operation of the
principles governing the development of customary rules.

Treaties – A treaty is an agreement between states, between states and international organizations,
or between international organizations, that is binding under international law (something binding
under the laws of one state is not international) – Treaties are binding and legally enforced upon the
parties to it – Treaties can be bilateral or multilateral

Article 38 1 (b) SICJ: ‘International Custom’

‘International custom, as evidence of general practice accepted as law’.

According to the Right of Passage Case: Portugal v. India (1960), there are 2 types of custom:

a) general
 b) local/regional

General: Customary rules binding upon international community as a whole.

Local/regional: Applicable to a group of states or just 2 states in the relations inter se.

• “Custom is the oldest and the original source of international law as well as law in general.”
(Jennings, Arthur, Oppenheim’s International law, 25).
• ‘It is the foundation stone of the modern law of the nations’. (Dixon Martin, International Law,
(London: Blackstone Press Limited, 2000), 28).
• ‘When a usage receives the general acceptance or recognition by the states in their mutual
relations, it is understood that such habit or usage has become right as well as obligation of the
states; it becomes a custom’. (Tandon and Kapoor, International Law, 95).
• However, although a custom is widely followed, it does not make it a rule of international law
unless it is accepted by the states as legally binding in order to be considered rules of
international law, referred to as opinio juris.

Two essential elements:

a) Practice, and

b) opinio juris.

In Advisory Opinion on the Use of Nuclear Weapons (1996), it was held that ‘no rule can be created on
opinion juris without state practice’.

• Judicial application of international custom is understood in the ICJ rulings in S.S. Lotus case,
North Sea continental Shelf case, Nicaragua v. Unites States of America case, West Rand Central
Gold Mining Company Ltd. v. R., Asylum case between Columbia and Peru, Advisory Opinion On
use of Nuclear Weapons (1996).
• In S.S. Lotus case (Turkish International Water) PCIJ series A, No 10, (1927), it was held that “a
new rule of customary international law cannot be created unless both these elements as
discussed are present.”
• In North Continental shelf case, ICJ Rep. 1969, at p.3, p.44, it was held “not only must the acts
concerned be a settled practice, but they must also be such or be carried out in such a way as to
be evidence of a belief that this practice is rendered obligatory by the existence of a rule
requiring it, the states concerned must feel they are conforming to what amounts to a legal
obligation.” (Cited by Jennings, Arthur Oppenheim’s International law, 28).
• In Nicaragua v. Unites States of America case (1986), it was held that “in order to deduce the
existence of customary rules the court deems it sufficient that the conduct of the states in
general should be consistent with such a rule and that instances of state conduct inconsistent
with a given rule should have been treated as breach of that rule not as indication of the
recognition of a new rule.” (Shaw, International Law,78).
 • In West Rand Central Gold Mining Company Ltd. v. R. (1905) 2K.B. 291, a test regarding the
general recognition of custom was laid down. • The court ruled that for a valid international
custom it is necessary that it should be proved by satisfactory evidence that the custom is of
such nature that it has received general consent of the States and no civilized State shall oppose
it.” (Cited in Tandon and Kapoor International Law, 99).
• Asylum Case: Columbia v. Peru (1950)
o ICJ described custom as ‘ a constant and uniform usage, accepted as law’.
o Meaning: those areas of state practice which arise as a result of a belief by states that
they are obliged by law to act in the manner described.
o ICJ held that: ‘where a local or regional customs is alleged, it is the duty of the
proponent to prove that this custom is established in such a manner that it has become
binding on the other party’.

 Although an international court in the first instance is bound to consider an applicable treaty
provisions, in case of doubt, it is interpreted against the customary rule. • In case of any conflict
of a treaty provision with a jus cogen, it will prevail over the treaty.

Article 38 1 (c) SICJ: General principles of Law recognized by the civilized

nations • Third source of international law.

• Most modern jurists accept that ‘general principles of law’ are principles of law common to all
national legal systems, in so far as they are applicable to relations of States

‘Principles’ refer to

a) certain principles and procedure

b) principles of good faith
c) principles of res judicata

• They also mean rules or standards which we find repeated in much the same form in the
developed systems of law, either due to common origin, or expressing a necessary response to
certain basic needs of human associations.

Examples are: the rules of pacta sunt servanda, that contracts must be kept; reparation must be made
for damage caused by fault; the right of self defense for the individual against attack on his person,
family, or community against clear and present danger; for one’s own cause no one can be a judge; and
that the judge must hear both sides. (J.E.S. Fawcett, The Law of Nations,( London, 1968), 24-25).

• The most important general principle, inherent in international legal rules, is that of good faith,
enshrined in the United Nations Charter, and its elaboration in the Declaration on Principles of
International Law Concerning Friendly Relations and Co-operation among States adopted by the
General Assembly in resolution 2625 (XXV), 1970.
 • Article 2(2) United Nations Charter: ‘all Members, in order to ensure to all of them the rights
and benefits resulting from membership, shall fulfill in good faith the obligations assumed by
them in accordance with the present Charter’.
• Declaration on Principles of International Law Concerning Friendly Relations and Co-operation
among States adopted by the General Assembly in resolution 2625 (XXV), 1970, where it
referred to the obligations upon states to fulfill in good faith their obligations resulting from
international law generally, including treaties. It therefore constitutes an indispensable part of
the rules of international law generally. (described by Shaw, International Law, 104)
• The main objective of inserting the third source in Article 38 is to fill in gaps in treaty and
customary law and to meet the possibility of a non liquet.

Non liquet means the possibility that a court or tribunal could not decide a case because of a ‘gap’ in
law. Example, the ICJ applied the doctrine of non liquet in the Nuclear Weapons case, Advisory Opinion,
(1997) 35 ILM 809 and 1343.

Examples of cases where judicial applications of general principle of law can be found: Arbitration
Tribunal in the AMCO v. Republic of Indonesia case, Nuclear Tests case, Chorz´ow Factory case in 1928,
Barcelona Traction case (1970) and Administrative Tribunal case.

In Barcelona Traction Case (1970), for example, the Court has acknowledged the concept of the ‘limited
liability company’ to be found in domestic law systems.

Article 38 1 (d) SICJ: judicial decisions and the teachings of the most highly
qualified publicists of the various nations.
‘Subject to the provisions of article 59, judicial decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the determination of the rule of law’.

A. Judicial Decisions

Judicial decisions do not make law but are declaratory of pre-existing law qualifying them as, indirect,
law identifying or material sources of law.

Article 59 of the Statute of the International Court of Justice, provides that: ‘decisions of the courts have
no binding force, except for the parties and in respect of the case concerned’.

This provision shows that:

a) Decision of the ICJ has no binding authority.

b) ICJ does not make law.

In practice, the ICJ will follow the previous decisions so as to have judicial consistency, or if it does not
follow, the court will distinguish its previous decisions from the case actually being heard. (case:
Interpretation of Peace Treaties, 1950).
Contrary to the Common Law, the doctrine of precedence does not exists in international law, still we
find that the Court itself in its decisions, the states in their disputes and legal writers in their scholarly
works quote judgments of PCIJ and ICJ as an authority.

Thus even as a subsidiary source, judicial decisions are important in the determination of the existence
of the legal rules and their content.

A unanimous, or almost unanimous, decision plays an important role in the progressive development of
the law, e.g. the decisions and advisory opinions in the Reparation, Genocide, Fisheries, and Nottebohm
cases have had decisive influence on general international law.

 Reparations for Injuries Suffered in the Service of the United Nations case, (1949) ICJ Rep. 174,
 Reservations to the Genocide Convention case, (1951) ICJ Rep. 15.
 Anglo-Norwegian Fisheries case, (1951) ICJ Rep., 116.
 Nottebohn case, (1955) ICJ Rep. 4.

B. ‘The teachings of the most highly qualified publicists of the various nations’.

With marked influence in the history of international law from 16th-18th centuries writers such as
Gentili, Grotius, Pufendorf, Bynkershoek and Vattel were considered authorities in determining the
scope, form and content of international law; today juristic writings are considered a material or
evidential source only.

Textbooks are used as a method of discovering what the law is on any particular point rather than as the
source of actual rules, and the writings of even the most respected international lawyers cannot create
law.

Other Sources of PIL

Article 38 of ICJ is not exhaustive statement for describing sources of international law as since its
formulation in 1945, many changes in the international community have taken place.

6Other Sources which have contributed and are considered important in the constant development of
the international law include:

• declarations of Security Council, binding on member states;

• Non-legally binding instruments, often referred to as “soft law”, such as declarations,
resolutions, and recommendations adopted by the UN General Assembly and various
international organizations; and
• conferences, International comity and morality;
• and equity, (a) in the sense of considerations of fairness and reasonableness,(b) in a more
strictly legal sense regarded as forming part of certain rules of law, general principles of law, or
(c) in the sense of Article 38 (2) of ICJ, which empowers the court , if the parties to a case agree,
to decide the case ex aequo et bono.
  Declaration of Security Council

Security Council has the competence to adopt resolutions under articles 24 and 25 of the UN Charter
binding on all member states of the organization.

 Soft Law

According to Professor Antonio Cassese, soft law instruments, short of reaching full consensus of view to
agree for a binding commitment, have three main common features;

1) Indicative of modern trends,

2) Matters of new concern for international community, and

3) having economic, political or other factors.

 Resolutions of UN General Assembly

Resolutions of the General Assembly are generally not legally binding and are merely recommendatory,
putting forward opinions on various issues with varying degrees of majority support.

This reflects the intention that the GA 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, which have definite impact upon the direction adopted
by modern international law.

The manner of states’ voting and the explanations given upon such occasions reflect evidence of state
practice and states’ consideration of law.

The Court in the Nicaragua case tentatively expressed the view that the opinio juris requirement could
be derived from the circumstances surrounding the adoption and application of a General Assembly
resolution.

It noted that the relevant opinio juris may, though with all due caution, be deduced from, inter alia, the
attitude of the parties [i.e. the US and Nicaragua] and the attitude of States 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 Nations. (ICJ Reports, 1986, pp. 14, 99–100; 76 ILR, pp. 349, 433–4. Shaw,
International Law, 6th ed., 115).

 International Organizations

Over the 50 years after establishment of UN and ICJ the most significant change in the international
community has been the increased number of international organizations and their significant role.
  Conferences

Contribute to the formation of international law, but indirectly.

 International Comity and Morality

Mutual relations of states are based on the principle of comity and morality, rules which are not legally
binding.

Oppenheim gives the example of exemption of custom duty granted to diplomatic envoys not as rule of
international law but as a rule of comity.

Though comity is not a source of international law but many a rule which formerly was a rule of
international comity only is nowadays a rule of international law. (Jennings, Arthur, Oppenheim’s
International law, 51).

 Equity

In the Barcelona Traction case (I.C.J. rep. (1970), pp. 3,5, Sir Gerald Fitzmaurice emphasized the need for
a body of rules and princiles of equity in the field of international law. (Cited by Tandon and Kapoor,
International Law, 109).

The tribunal in the Rann of kutch arbitration held that since equity formed part of international law the
parties were free to present and develop their case with reliance on principle of equity. • In such case
equity requires legal character and is applied not just as equity but as part of a legal rule. (Jennings,
Arthur, Oppenheim’s International law, 44).

 Ex aequo et bono

Ex aequo et bono: Latin term meaning "according to the right and good" or "from equity and
conscience".

In the context of arbitration it refers to the power of the arbitrators to dispense with consideration of
the law and consider solely what they consider to be fair and equitable in the case at hand. • ICJ has not
yet given any judgment on the basis of Article 38 (2).

74. i) State Papers, State Guidance and Judicial Reasons • State papers exchanged during their mutual
diplomatic relations, state guidance for their officers by their legal advisors, and judicial reason through
which principles are discovered, could also be some other subsidiary sources of international law.

Conclusion
• Article 38 is quite comprehensive in detailing major formal and material sources of international
law; describing treaties, customs and general principles as the major formal sources; providing
general principles as filling the gaps between customary rules and treaties; and as subsidiary
means providing judicial decisions, which has now become a trend setting evidence of immense
 value in determining the rules of law, reflected in the teachings of the most highly qualified
publicists of the various nations which are also described as subsidiary means, under the same
provision of the article.
• Judicial decisions however, will remain subsidiary as they are fact specific and apply to the states
concerned only. • Subject to states’ concerned consent provision of equity is also available in
Article 38 (2) SICJ. • However, the article cannot be considered totally exhaustive in its
provisions as other subsidiary means provided in the preceding paragraphs are also contributive
in the complexed ever growing matters of international community, in the spheres of public as
well as private international law.
• Since treaties have become a major source of international law, considering the statement of
international conventions and treaties as the only considerable way in creation of international
law, it is quite clear from the above discussion, that it is not correct. • It is also concluded that
one of the distinctive feature of international law making is the absence of any hierarchy
between custom and treaties as sources of law, with even more force of jus cogens or
peremptory norms of general international law, prohibition against torture or non refoulement
for instance. • States may not derogate from jus cogens through treaties or customary rules
even. It follows that jus cogens is hierarchically superior to all the other rules of international
law.

Jurisdiction & Immunity

2. State Jurisdiction • State jurisdiction is the capacity of a State under International Law to prescribe
and enforce the rules of law. • It is derived from the State sovereignty and constitutes its vital and
central feature. 2

3. • It is the authority of a State over persons, property and events which are primarily within its
territories (its land, its national airspace, and its internal and territorial water). • This authority involves
the powers to prescribe the rules of law, to enforce the prescribed rules of law and to adjudicate. • The
powers related to State jurisdiction raise the question regarding the types and forms of State
Jurisdiction. 3

4. • State jurisdiction may extend beyond its territory over persons and things which have a national
link. • This extension raises the question regarding the grounds or the principles upon which the State
can assert its jurisdiction within and beyond its boundaries. 4

5. • Nevertheless, there are certain persons, property and events within a State territory which are
immune from its jurisdiction. • This limitation to a State jurisdiction raises a question regarding the
immunity from jurisdiction. • The answers to the above raised questions are dealt with in the following
sections. 5
6. Types of State Jurisdiction • State jurisdiction implies the competence to prescribe rules of law, the
jurisdiction to enforce the prescribed rules of law and the jurisdiction to adjudicate. • Accordingly, it is
of three types: legislative jurisdiction, executive jurisdiction and judicial jurisdiction. 6

7. (1) Legislative Jurisdiction • Legislative jurisdiction is the capacity of a State to prescribe rules of law
(the power to legislate). • A State has the supremacy to make binding laws within its territory. • It has a
legislative exclusivity in many areas. • This supremacy is entrusted to constitutionally recognized organs.
7

8. • Although legislation is primarily enforceable within a State territory, it may extend beyond its
territory in certain circumstances. • International Law, for example, accepts that a State may levy taxes
against persons not within its territory as long as there is a real link between the State and the proposed
taxpayer, whether it is nationality or domicile. 8

9. • The question of how far a court will enforce foreign legislation is a matter within the field of Private
International Law (conflict of laws). • It is common practice of States that a State enforces civil laws of
another State, but it is rare to enforce the penal or taxes laws of another State. 9

10. • The legislative supremacy of a State within its territory is well established in International Law. •
However, this supremacy may be challenged in cases where a State adopts laws that are contrary to the
rules of International Law. • In such cases, a State will be liable for a breach of International Law. • A
State may also be liable for a breach of International Law if it abuses its rights to legislate for its
nationals abroad. 10

11. (2) Executive Jurisdiction • Executive jurisdiction is the capacity of a State to act and to enforce its
laws within its territory. • Generally, since States are independent of each other and possess territorial
sovereignty, they have no authority to carry out their functions on foreign territory. • No State has the
authority to infringe the territorial sovereignty of another State. • In this sense, a State cannot enforce
its laws upon foreign territory without the consent of the host State; otherwise, it will be liable for a
breach of International Law. 11

12. (3) Judicial Jurisdiction • Judicial jurisdiction is the capacity of the courts of a State to try legal cases.
• A State has an exclusive authority to create courts and assign their jurisdiction, and to lay down the
procedures to be followed. • However, in doing so, it cannot by any means alter the way in which
foreign courts operate. 12

13. • There are a number of principles upon which the courts of a State can claim jurisdiction. • In civil
matters, the principles range from the mere presence of the defendant in the territory of a State to the
nationality and domicile principles. • In the criminal matters, they range from the territorial principle to
the universality principle. • These principles are the subject of the following section. 13

14. Principles of Jurisdiction • Generally, the exercise of civil jurisdiction by courts of a State has been
claimed upon far wider grounds than has been the case in criminal matters. • The consequent reaction
by other State with this regard has been much mild. • This is partly because public opinion is far more
vigorous where a person is tried in foreign territory for criminal offences than if a person is involved in a
civil case. • In addition, International Law does not impose any restrictions on the jurisdiction of courts
in civil matters. 14

15. • In Common Law countries such as the United States and United Kingdom, the usual ground for
jurisdiction in civil cases is the service of a writ upon the defendant within the country, even if the
presence of the defendant is temporary and incidental. • In Civil Law countries, the usual ground for
jurisdiction is the habitual residence of the defendant in the country. 15

16. • In some countries such as Netherlands, Denmark and Sweden, generally courts assert their
jurisdiction if the defendant possesses assets in the country; however, in matrimonial cases the
commonly accepted ground for jurisdiction is the domicile or residence of the plaintiff. • As far as
criminal jurisdiction is concerned, the grounds or principles of jurisdiction mostly invoked by States are
as follows. 16

17. (1) The Territorial Principle • The territorial principle is derived from the concept of State
sovereignty. • It means that a State has the primary jurisdiction over all events taking place in its
territory regardless of the nationality of the person responsible. • It is the dominant ground of
jurisdiction in International Law. • All other State must respect the supremacy of the State over its
territory, and consequently must not interfere neither in its internal affairs nor in its territorial
jurisdiction. 17

18. • The territorial jurisdiction of State extents over its land, its national airspace, its internal water, its
territorial sea, its national aircrafts, and its national vessels. • It encompasses not only crimes committed
on its territory but also crimes have effects within its territory. 18

19. • In such a case a concurrent jurisdiction occurs, a subjective territorial jurisdiction may be exercised
by the State in whose territory the crime was committed, and an objective territorial jurisdiction may be
exercised by the State in whose territory the crime had its effect. 19

20. • Although jurisdiction is primarily and predominantly territorial, it is not exclusive. • A State is free
to confer upon other States the right to exercise certain jurisdiction within its national territory. • States
are free to arrange the right of each one to exercise certain jurisdiction within each national territory. 20

21. • The most significant recent examples of such arrangements are: the 1991 France-United Kingdom
Protocol Concerning Frontier Control and Policing, under which the frontier control laws and regulations
of each State are applicable and may be enforced by its officers in the control zones of the other; the
1994 Israel-Jordan Peace Treaty, under which the Israeli criminal laws are applicable to the Israeli
nationals and the activities involving only them in the specified areas under Jordan’s sovereignty, and
measures can be taken in the areas by Israel to enforce such laws. 21

22. (2) The Nationality Principle • The nationality principle implies that a State jurisdiction extends to its
nationals and actions they take beyond its territory • It is based upon the notion that the link between
the State and its nationals is personal one independent of location. 22
23. • Criminal jurisdiction based on the nationality principle is universally accepted. • While Civil Law
countries make extensive use of it, the Common Law countries use it with respect to major crimes such
as murder and treason. • The Common law countries, however, do not challenge the extensive use of
this principle by other countries. 23

24. • A State may prosecute its nationals for crimes committed anywhere in the world; the ground of
this jurisdiction is known as active nationality principle. • Also, it may claim jurisdiction for crimes
committed by aliens against their nationals abroad; the ground of this jurisdiction is known as passive
nationality principle 24

25. • This last principle has been viewed as much weaker than the territorial or active nationality
principle as a basis for jurisdiction. • It has been considered as a secondary basis for jurisdiction, and a
matter of considerable controversy among States. • However, in recent years this principle has come to
be much acceptable by the international community in the sphere of terrorist and other internationally
condemned crimes. 25

26. (3) The Protective principle • The protective principle implies that a State may exercise jurisdiction
over an alien who commits an act outside its territory, which is deemed prejudicial to its security and
interests. • It is universally accepted, although there are uncertainties as to its practical extent,
particularly as regard to the acts which may come within its domain. 26

27. • It is justified on the basis of protection of State’s vital interests, particularly when the alien
commits an offence prejudicial to the State, which is not punishable under the law of the country where
he resides and extradition is refused. 27

28. • Although the protective principle is used as a secondary basis for jurisdiction and in a narrower
sense than the territorial or the nationality principle, it can easily be abused, particularly in order to
undermine the jurisdiction of other States. 28

29. • In practice however, this principle is applied in those cases where the acts of the person which take
place abroad constitute crimes against the sovereignty of the State, such as plots to through a
government, treason, espionage, forging a currency, economic crimes and breaking immigration laws
and regulations. 29

30. • This principle is often used in treaties providing for multiple jurisdictional grounds with regard to
specific crimes, such as the 1979 Hostage Convention and the 1970 Hague Aircraft Hijacking Convention.
30

31. (4) The Universality Principle • The universality principle, in its broad sense, implies that a State can
claim jurisdiction over certain crimes committed by any person anywhere in the world, without any
required connection to territory, nationality or special State interest. 31

32. • Before the Second World War, such universal jurisdiction has been considered as contrary to
International Law by the Common Law countries, except for acts regarded as crimes in all countries, and
crimes against the international community as a whole such as piracy and slave trade. 32
33. • After the Second World War, universal jurisdiction has been universally recognized over certain
acts considered as international crimes. • International crimes are those crimes committed against the
international community as a whole or in violation of International Law and punishable under it, such as
war crimes, crimes against peace and crimes against humanity. 33

34. • In recent years, crimes such as Hijacking of aircraft, violation of human rights and terrorism, have
been added to the list of international crimes. • Today under the universality principle, each State and
every State has jurisdiction over any of the international crimes committed by anyone anywhere. 34

35. Immunity from Jurisdiction • The concept of jurisdiction is derived from the concept of sovereignty,
and is connected with the principles of equality and non-interference in domestic affairs of other States.
• The grounds for jurisdiction are related to the duty of a State under International Law to respect the
territorial integrity and political independence of other States. 35

36. • Immunity from jurisdiction is grounded on this duty, and constitutes derogation from the host
State jurisdiction. • Under International Law, immunity from jurisdiction is granted to certain persons,
namely States (sovereigns) and their diplomatic and consular representatives, and international
organizations. 36

37. (1) Sovereign Immunity • In International Law, sovereign immunity refers to the legal rules and
principles determining the conditions under which a State may claim exemption from the jurisdiction of
another State. • Sovereign immunity is a creation of customary International Law and derives from the
principles of independence and equality of sovereign States; since States are independent and legally
equal, no State may exercise jurisdiction over another State without its consent. 37

38. • It is a limitation imposed by International Law upon the sovereignty of a State. • Although rules of
sovereign immunity form part of customary International Law, today they are incorporated either in
international treaties, such as the 1972 European Convention on State Immunity, or in national statutes
of certain States, such as the 1976 U.S Foreign Sovereign Immunities Act and the 1978 U.K State
Immunities Act. 38

39. • Historically, the head of a State (a sovereign) was associated with the State. Originally, both of
them enjoyed under customary International Law absolute immunity, in all areas of their activities, from
the jurisdiction of another State. • While the head of a State continues today to enjoy such absolute
immunity, even for his private activities, a State nowadays enjoys only qualified (restrictive) immunity. •
Under the qualified immunity, a State enjoys immunity only in respect of its governmental acts (acts jure
imperii), not in respect of its commercial acts (acts jure gestionis). 39

40. • In practice, sovereign immunity arises on two levels. • The first level concerns the immunity of a
State from the jurisdiction of courts of another State; courts of a State cannot adjudicate a claim against
a foreign State. • The second level concerns the immunity of a State from the execution of enforcement
measures undertaken by courts of another State. 40
41. • Sovereign immunity covers the head of a State as well as the State itself, its government, its
departments, and its agencies. • It embraces the acts of these entities, their property and assets. • This
immunity may, however, be voluntarily waived by a State. 41

42. • A State may waive its immunity from jurisdiction and consequently submits itself to the jurisdiction
of a foreign court. • However, such submission (waiver of jurisdictional immunity), although gives the
court of a State the competence to adjudicate and enter a judgment against a foreign State, it does not
authorize the execution of the court’s decision against such State. 42

43. • In case of execution, another waiver is needed, namely a waiver of immunity from execution. •
Waiver must be express; however, implied waiver is accepted if indicated by the circumstances. 43

44. (2) Diplomatic Immunity • The rules of diplomatic immunity are the most accepted and
uncontroversial rules of International Law. • They are essential for the maintenance and efficient
conduct of relations between States. 44

45. • Prior to the 1961 Vienna Convention on Diplomatic Relations, diplomatic law, especially privileges
and immunities were based upon custom as well as contained in bilateral treaties and national statutes.
• Nowadays, most of the modern law of diplomatic immunity is contained in the 1961 Vienna
Convention on Diplomatic Relations which both codified existing customary law and established others.
45

46. • Under this convention, “a diplomatic agent” (the head of the mission and any member of the
diplomatic staff of the mission) enjoys complete immunity from the criminal jurisdiction of the receiving
State; also, he enjoys immunity from its civil and administrative jurisdiction, except in the case of real
action relates to private immovable property situated within the receiving State, action related to
succession matters in which he is involved as a private person, and action related to professional or
commercial activity, in the receiving State, outside his official functions. 46

47. • No measures of execution may be forced upon him, except in the above mentioned cases. • He
cannot be obliged to give evidence as a witness. • His person is inviolable. • He cannot be arrested or
detained. 47

48. • All appropriate steps should be taken by the receiving State to protect him and prevent any attack
on his person, freedom and dignity. He is exempt from all dues and taxes, except in certain cases. • The
premises of the mission and the private residence of a diplomatic agent as well as their archives,
documents, papers, official correspondence and other property are inviolable. 48

49. • A diplomatic agent enjoys immunity from the moment he enters the territory of the receiving State
on proceeding to take up his post or, if already in its territory, from the moment when his appointment
is notified to the Ministry for Foreign Affairs. • He also enjoys such immunity when passes through or is
in the territory of a third State on proceeding to take up or to return to his post, or when returning to his
own country. 49
50. • The immunity granted to a diplomatic agent is immunity from the jurisdiction of the receiving State
and not from liability. • He is not immune from the jurisdiction of the sending State. • Moreover, he can
be sued in the receiving state after a reasonable time elapses from the ending of his mission. 50

51. • The immunity of a diplomatic agent from jurisdiction of the receiving State may be waived by the
sending State. • The waiver must be express. However, such waiver of immunity from jurisdiction does
not imply waiver of immunity in respect of the execution of a judgment; in such case, a separate waiver
is required. • Immunity may also be waived by the diplomatic agent himself, by submitting voluntarily to
the jurisdiction of the court of the receiving State. 51

52. • Members of the family of a diplomatic agent, if they are not nationals of the receiving State,
likewise enjoy the same immunity from jurisdiction. • The same immunity, with certain exceptions, is
enjoyed by members of the administrative and technical staff of the mission, together with members of
their families forming part of their respective households, if they are not nationals or permanent
residents of the receiving State. 52

53. • Members of the service staff who are not nationals or permanent residents of the receiving State
enjoy immunity only in respect of acts performed in the course of their official duties. 53

54. (3) Consular Immunity • A consular officer, like a diplomatic agent, represents his State in the
receiving State. • However, unlike a diplomatic agent, he is not concerned with political relations
between the two States, but with a variety of administrative functions, such as issuing visas and
passports, looking after the commercial interests of his State, and assisting the nationals of his State in
distress. 54

55. • Thus, he is not granted the same degree of immunity from jurisdiction as a diplomatic agent. •
Notably nowadays, many States combine its diplomatic and consular services. • Thus, a person who acts
simultaneously as a diplomat and consul enjoys diplomatic immunity. 55

56. • Under the 1963 Vienna Convention on the Consular Relations, a consular officer (the head of the
consular post and any person entrusted to exercise consular functions) is immune from an arrest or
detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent
judicial authority. 56

57. • He is immune from imprisonment or any other restriction on his personal freedom save in
execution of a final judicial decision. • If criminal proceedings are instituted against him, he must appear
before the competent authorities. • The proceedings must be conducted in a manner that respects his
official position and does not hamper the exercise of consular functions, and with the minimum delay.
57

58. • A consular officer is immune from the jurisdiction of the judicial or administrative authorities of
the receiving State only in respect of acts performed in the exercise of consular functions. • He is
exempt from all dues and taxes, except in certain cases. • In addition, the consular premises, archives
and documents are inviolable. 58
59. • A consular officer enjoys the immunities from the moment he enters the territory of the receiving
State on proceeding to take up his post or, if already in its territory, from the moment when he enters
on his duties. • The same immunities are enjoyed by members of the family of the consular officer from
the date which he enjoys his immunities. 59

60. • The immunities of a consular officer may be waived by the sending State. • The waiver must be
express. 60

61. • However, the waiver of immunity from jurisdiction for the purposes of civil or administrative
proceedings does not imply waiver of immunity from the execution of a judicial decisions; in such case, a
separate waiver is required. • Immunity may also be waived by the consular officer himself, by
submitting voluntarily to the jurisdiction of the court of the receiving State. 61

62. (4) Immunities of International Organizations • It is uncertain which immunities and to what extent
international organizations enjoy under customary International Law; the position of this law is far from
clear. • Actually, immunities are granted to international organizations by treaties, or by headquarters
agreements concluded with the host State where the organization is seated. 62

63. • The purpose of immunity granted to international organizations is purely functional. • Immunity is
regarded as functionally necessary for the fulfillment of their objectives. • It is not a reflection of
sovereignty, as it is in case of a State, except only indirectly when aiming to protect the interests of the
member States of the organization. 63

64. • Probably the most important example of treaties providing immunities to international
organizations is the 1946 General Conventions on the Privileges and Immunities of the United Nations,
which sets out the immunities of the United Nations and its personnel. 64

65. • The United Nations enjoys complete immunity from all legal process. • Its premises, assets,
archives and documents are inviolable. • It is exempt from direct taxes and customs duties. Its staff is
exempt from income tax on their salaries. 65

66. • The U.N Secretary General and the Assistant Secretaries General enjoy diplomatic immunity. •
Other staff members enjoy limited immunities, such as immunity from legal process in respect of their
official acts. • Representatives of member States attending the United Nations meetings are granted
almost the same immunities as diplomats, except their immunity from legal process applies only to their
official acts. 66

67. • An example of treaties providing immunities to representatives of States in international

organizations is the 1975 Vienna Convention on the Representatives of States in their Relations with
International Organizations of a Universal Character. • This treaty applies to representatives of States in
any international organizations of a universal character, irrespective of whether or not there are
diplomatic relations between the sending State and the host States. 67

68. • Under this treaty, the representatives of States in universal international organizations enjoy
similar immunities to those provided in the 1961 Vienna Convention on Diplomatic Relations. • They
enjoy immunity from criminal jurisdiction, and immunity from civil and administrative jurisdiction in all
cases, save for certain exceptions. • The mission premises, archives, documents and correspondence are
inviolate
State Responsibility
1. CHAPTER 9CHAPTER 9 STATE RESPONSIBILITYSTATE RESPONSIBILITY PROFESSOR DR. ABDUL GHAFUR
HAMID

2. 9.1 NATURE OF STATE9.1 NATURE OF STATE RESPONSIBILILTYRESPONSIBILILTY • State responsibility

refers to ‘liability’ of a state under international law. • Responsibility arises from the breach by a State of
an international obligation. That obligation can be one of customary international law or a treaty
obligation. • The main reference: the International Law Commission’s Articles on Responsibility of States
for Internationally Wrongful Acts 2001, adopted by the GA on 28 Nov. 2002.

3. (1) Substantive rules of international law (Primary rules): customary or treaty rules laying down
substantive obligations for States (2) The law of State responsibility (Secondary rules): rules relating to
(a) whether there has been a breach of a primary rule; and (b) the legal consequences of such a breach.

4. 9.2 ELEMENTS OF STATE9.2 ELEMENTS OF STATE RESPONSIBILITYRESPONSIBILITY [pp. 253-54][pp.

253-54] Art. 1: “Every internationally wrongful act of a State entails the international responsibility of
that State.” Art. 2: There is an internationally wrongful act of a state when conduct consisting of an
action or omission: (1) Is attributable to the state under international law; and (2) Constitutes a breach
of an international obligation of the state.

5. Conduct: actions or omissionsConduct: actions or omissions • Conduct attributable to the State can
consist of actions or omissions. • An example of an omission: • Corfu Channel case (1949) ICJ Rep. 4,
where the ICJ held that Albanian was responsible because it knew, or must have known, of the presence
of the mines in its territorial waters and did nothing to warn third States of their presence.

6. Actions or omissionsActions or omissions [Cont.][Cont.] • In the US Diplomatic and Consular Staff in

Tehran case, 1980 ICJ Rep. 3, the Court concluded that Iran was responsible for the “inaction” of its
authorities which failed to take appropriate steps to protect the embassy and its staff.

7. • Article 2 specifies the two constituent elements of an internationally wrongful act: (1) attribution of
conduct to the State; and (2) breach of an international obligation by the State. [See Tehran Hostage
case] • In principle, the fulfilment of these elements is a sufficient. In some cases, however, the
respondent State may claim that it is justified in its non-performance, by referring to a ‘defence’. •
Three requirements: attribution; breach and absence of any defence.

8. 9.39.3 ATTRIBUTION OF CONDUCTATTRIBUTION OF CONDUCT TO THE STATETO THE STATE [The first
element][The first element] • The State is an abstract entity. It cannot act of itself. • An “act of the
State” must involve some action or omission by a human being or group. States can act only by and
through their organs or agents. • The question is which persons should be considered as acting on
behalf of the State.
9. • The general rule: A State organ is considered as acting on behalf of the State and its conduct is
considered as an “act of the State” for which the State is responsible under international law. • As a
corollary, the conduct of private persons acting in their private capacity is not as such attributable to the
State.

10. 9.3.1 Conduct of State organs9.3.1 Conduct of State organs [Art. 4][Art. 4] [Text Book p. 255][Text
Book p. 255] 1. 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 organization of the State, and whatever its character as an organ of the
central government or of a territorial unit of the State. 2. An organ includes any person or entity which
has that status in accordance with the internal law of the State.

11. Executive organExecutive organ • Massey claim: Failure of Mexican authorities to punish the killer of
Massey, a US citizen. • Rainbow Warrior incident: Rainbow Warrior was blown up by French secret
service agents.

12. Judicial organJudicial organ • Immunity from Legal Process of a Special Rapporteur of the
Commission on Human Rights (1999) ICJ Rep. 87 • [Dato’ Pram Cumarasuamy case] • “According to a
well established rule of international law, the conduct of any organ of a State must be regarded as an act
of that State. This rule…is of a customary character.…”

13. Acting in an official capacityActing in an official capacity • Even though a person or entity has the
status of a State organ, the State will be responsible only when that person acts “in an apparent official
capacity”. If the person acts in a private capacity, just as a private citizen, the State will not be
responsible.

14. Mallen caseMallen case • a Mexican consul had been violently attacked and beaten twice by an
American police officer. • As for the first attack, the evidence indicated a wanton act of a private
individual who happened to be an official. • On the second attack, the American police officer, showing
his badge to assert his ‘official capacity’, struck Mallen with his revolver, and then took him at gun point
to the county jail. It was held that the US was responsible for this second assault.

15. Conduct of persons or entities exercisingConduct of persons or entities exercising elements of

governmental authorityelements of governmental authority (para-Statal entities) [Art. 5](para-Statal
entities) [Art. 5] The conduct of a person or entity which is not an organ of the State under Art. 4 but
which is empowered by the law of that State to exercise elements of governmental authority shall be
considered an act of the State under international law, provided the person or entity is acting in that
capacity in the particular instance.

16. 9.3.2 Liability for9.3.2 Liability for ultra viresultra vires actact [Art. 7][Art. 7] The conduct of an organ
of a State or of a person or entity empowered to exercise elements of the governmental authority shall
be considered as an act of the State under international law if the organ, person or entity acts in that
capacity, even if it exceeds its authority or contravenes instructions.
17. Caire claimCaire claim (1929) 5 RIAA 518(1929) 5 RIAA 518 • Caire, a French national, was killed in
Mexico by two Mexican military officers. After failing to extort money, they took Caire to the military
barracks and shot him. • Held: The officers in question, even if they are to be regarded as having acted
outside their competence…and even if their superior officers issued a counter-order, have involved the
responsibility of the State, since they acted in their capacity as military officers and used the means
placed at their disposal by virtue of that capacity.

18. Youmans claimYoumans claim (1926) 4 RIAA 110(1926) 4 RIAA 110 • A mob gathered around a
house in Mexico within which were 3 US nationals. The mayor ordered a lieutenant to proceed with
troops to put an end to the attack upon the Americans. Instead of doing that they opened fire on the
house which resulted in the death of all the Americans. • Held: We do not consider that …acts of
soldiers committed in their private capacity…. it is clear that …the men were on duty under the
immediate supervision and in the presence of a commanding officer.

19. Southern Pacific Properties (Middle East)Southern Pacific Properties (Middle East) Ltd v EgyptLtd v
Egypt (1993) 32 ILM 933, ICSID(1993) 32 ILM 933, ICSID • The co. entered into a contract with Egypt to
develop land for tourism. There was strong opposition in Egypt because the plan would damage
valuable antiquities. Egyptian government withdrew permission. They argued that Egypt was not
responsible because the permission was contrary to Egyptian law and therefore ultra vires. • Held: A
State is responsible for unlawful acts of State organs, even if accomplished outside the limits of their
competence and contrary to domestic law.

20. 9.3.3 Conduct of persons directed or9.3.3 Conduct of persons directed or control by the Statecontrol
by the State [Art. 8][Art. 8] • Article 8, “The conduct of a person or group of persons shall be considered
an act of a State under international law if the person or group of persons is in fact acting on the
instruction of, or under the direction or control of, that State in carrying out the conduct.”

21. Nicaragua caseNicaragua case [pp. 259-60][pp. 259-60] • The test of “effective control” • “It would
in principle have to be proved that that State had effective control of the military and paramilitary
operations in the course of which the alleged violations are committed. The Court …takes the view that
the contras remain responsible for their acts, and that the United States is not responsible for the acts of
the contras, but for its own conduct vis-à-vis Nicaragua.: [Must issue specific instructions concerning
each of the unlawful action.]

22. Prosecutor v Tadi`cProsecutor v Tadi`c [p. 260][p. 260] • The test for whether the conduct of group is
attributable to the State is whether they are under the ‘overall control’ of a State, without necessarily
this State issuing instructions concerning each specific action. • The ILC Article 8 adopts the somewhat
stricter test of the Nicaragua case.

23. 9.3.4 Conduct of an Insurrectional9.3.4 Conduct of an Insurrectional or other Movementor other

Movement (1)Conduct of a successful insurrectional movement which becomes a new government [Art.
10] 1. The conduct of an insurrectional movement which becomes the new government of a State shall
be considered an act of that State under international law.
24. Short v IranShort v Iran (1987) 16 Iran-US CTR 76(1987) 16 Iran-US CTR 76 • Short, an American
citizen, was employed by an American co. in Iran. He alleged that he was forcefully expelled from Iran 3
days before the Revolutionary Govt. took office and claimed damages for his loss of employment
benefits. • Held: (a) Where a revolution leads to the establishment of a new government the State is
responsible for the acts of the overthrown government insofar as the latter maintained control of the
situation.

25. Short v IranShort v Iran [Cont.][Cont.] (b)The successor government is also responsible for the acts
imputable to the revolutionary movement even if those acts occurred prior to its establishment, as a
consequence of the continuity existing between the new organization of the State and the revolutionary
movement. (c) The claimant is unable to identify any agent of the revolutionary movement, the actions
of which compelled him to leave Iran. The acts of supporters of a revolution [as opposed to its agents]
cannot be attributed to the government. See judgment of the ICJ in Tehran Hostage case.

26. (2)(2) Unsuccessful or on-goingUnsuccessful or on-going insurrectional or other

movementinsurrectional or other movement - In fact the conduct of unsuccessful or on-going
insurrectional movement can be assimilated to that of private individuals. - It can be placed on the same
footing as that of persons or groups who participate in a riot or mass demonstration, and it is likewise
not attributable to the State [unless the State itself is guilty of breach of good faith or negligent in
suppressing insurgency, etc.].

27. Home Missionary Society ClaimHome Missionary Society Claim (1920) 6 RIAA 42(1920) 6 RIAA 42 The
natives of Sierra Leone revolted against the British because they did not want the collection of a new
tax. During the rebellion, all the United States’ missions were attacked and destroyed, and some of the
missionaries were murdered. Held: It is a well-established principle of international law that no
government can be held responsible for the act of rebellious bodies of men committed in violation of its
authority, where it is itself guilty of no breach of good faith, or of no negligence in suppressing
insurrection.

28. Sambaggio caseSambaggio case (1903) 10 RIAA 499(1903) 10 RIAA 499 An Italian national sought
compensation for damage caused by unsuccessful revolutionaries in Venezuela. Held: The very existence
of a revolution presupposes that a certain set of men have gone beyond the power of the authorities;
and unless the government has failed to use promptly and with appropriate force its constituted
authority, it cannot reasonably be said that it should be responsible for a condition of affairs created
without its volition.

29. 9.3.5 Conduct acknowledged and9.3.5 Conduct acknowledged and adopted by a State as its
ownadopted by a State as its own [Article 11] Conduct which is not attributable to a State under the
preceding articles shall nevertheless be considered an act of that State under international law if and to
the extent that the State acknowledges and adopts the conduct in question as its own.

30. United States Diplomatic and ConsularUnited States Diplomatic and Consular Staff in Tehran
CaseStaff in Tehran Case (1980) ICJ Rep. 3(1980) ICJ Rep. 3 • In 1979, several hundred student-
demonstrators occupied the US Embassy in Tehran by force and held the embassy staff as hostages. •
The Court divided the events into two phases. • In the first stage, the attack was carried out by militants
who in no way could be regarded as “agents” or organs of the Iranian State’. Therefore, according to the
Court, the militants’ conduct could not be imputable to the State on that basis.

31. Tehran Hostage caseTehran Hostage case [Cont.][Cont.] • Nevertheless Iran was held responsible in
that it failed to protect the embassy and the diplomats as required by international law (Vienna
Convention on Diplomatic Relations, 1961) . • The second phase started after completion of the
occupation of the embassy. At this stage, the Iranian Government was legally bound to bring to an end
the unlawful occupation and pay reparation. Instead, it approved and endorsed the occupation and
even issued a decree stating that the American embassy was a centre of espionage.

32. Tehran Hostage caseTehran Hostage case [Cont.][Cont.] • The decree went on expressly to declare
that the embassy and the hostages would remain as they were until the US had handed over the former
Shah for trial. • The approval given to the acts of the militants and the decision to perpetuate them
translated continuing occupation of the embassy and detention of the hostages into acts of that State.
The militants had now become agents of the Iranian State for whose acts the State itself was
internationally responsible.

33. 9.3.6 Conduct of private persons9.3.6 Conduct of private persons –– not attributablenot attributable
• In principle, a State is not responsible for the acts of private individuals, unless they were in fact acting
on behalf of that State. • However, sometimes the acts of private individuals may be accompanied by
some act or omission on the part of the State, for which the State is liable. The following are examples of
such act or omission:

34. State will be responsible for its own omissionState will be responsible for its own omission or
inactionor inaction (1) Failure to take reasonable care (due diligence) to prevent private individuals from
committing wrongful acts against foreign nationals; (2) Failure to punish responsible individuals or to
provide the injured foreigner with the opportunity of obtain reparation from the wrongdoers in the local
courts. [Denial of justice];

35. (a) Failure to exercise “due diligence”(a) Failure to exercise “due diligence” Asian Agricultural
Products Ltd v Sri Lanka • A British company brought an action against Sri Lanka and claimed
compensation for the destruction of its Sri Lankan farm. • The farm was in an area that was largely
under the control of Tamil Tiger rebels. The farm management had offered to dismiss farm staff thought
by the Government to be in league with them.

36. • Neglecting this offer, the Government forces launched a vast counter-insurgency operation in that
area. • Some company workers were killed and the • farm was destroyed. • The Tribunal held that Sri
Lanka was responsible because it violated its due diligence obligation.

37. (b) Denial of justice(b) Denial of justice • A State is responsible under international law if it fails to
punish responsible individuals or to provide the injured foreign national with the opportunity of
obtaining compensation from the wrongdoers in the local courts. • In Janes Claim, Janes, an American
citizen, was murdered at a mine in Mexico. The person who killed Janes was well known in the
community where the killing took place.

38. • There is evidence that a Mexican magistrate was informed of the shooting within five minutes
after it took place. However, even after eight years had elapsed, the murderer had not been
apprehended and punished by the Mexican authorities. • The Commission found that Mexico was
responsible for the denial of justice and awarded damages accordingly.

39. 9.4 BEACH OF AN INTERNATIONAL9.4 BEACH OF AN INTERNATIONAL OBLIGATIONOBLIGATION [The

Second Element][The Second Element] [Article 12] There is a breach of an international obligation by a
State when an act of that State is not in conformity with what is required of it by that obligation,
regardless of its origin or character.

40. Art. 12: ExplanationArt. 12: Explanation • The phrase “regardless of its origin” refers to all possible
sources of international obligations. • In the Rainbow Warrior Arbitration (1990) 20 RIAA 217, it was
held that “ any violation by any State of any international obligation, of whatever origin, gives rise to
State responsibility and consequently, to the duty of reparation.

41. Art. 12: ExplanationArt. 12: Explanation • International obligations may be established by a
customary rule of international law, by a treaty, by a judgment given by the ICJ or any other
international tribunal. • In international law, there is no distinction between “contractual” and
“tortious” responsibility nor between “civil” and “criminal” responsibility.

42. 9.5 DEFENCES9.5 DEFENCES [Arts. 20-26] These articles deal with the six types of ‘defences’ available
to a respondent State, namely: (1) consent; (2) self-defence; (3)countermeasures; (4)force majeure; (5)
distress; and (6) necessity.

43. Force majeureForce majeure • It is defined in Article 23 (1) as “the occurrence of an irresistible force
or of an unforeseeable event, beyond the control of the State, making it materially impossible in the
circumstances to perform the obligation.” • Rainbow Warrior Arbitration: France argued that urgency of
medical treatment amounted to force majeure. • Held: “the test for force majeure was one of ‘absolute
and material impossibility’. It does not cover a circumstance rendering performance of the obligation
more difficult or burdensome.”

44. DistressDistress • Distress is defined in Article 24 (1) as a situation where “the author of the
[otherwise wrongful] act…has no other reasonable way, in a situation of distress, of saving the author’s
life or the lives of other persons entrusted to the author’s care”.

45. NecessityNecessity • Article 25 (1): An act which (a) is the only means for the State to safeguard an
essential interest against a grave and imminent peril; and (b) does not seriously impair an essential
interest of the State or States towards which the obligation exists, or of the international community as
a whole. The ILC, in its commentary affirms the exceptional nature of the plea of necessity.

46. 9.6 LEGAL OCNSEQUENCES OF AN9.6 LEGAL OCNSEQUENCES OF AN INTERNATIONAL WRONGFUL

ACTINTERNATIONAL WRONGFUL ACT • The following are the legal consequences of an internationally
wrongful act: (1) Continued duty of performance; (2) cessation and non-repetition; (3) Reparation; (4)
Countermeasures.

47. (1) Reparation for injury(1) Reparation for injury A important legal consequence of an internationally
wrongful act is that the injured State is entitled to obtain reparation from the wrongdoing State.

48. Chorzow Factory CaseChorzow Factory Case Reparation must, as far as possible, wipe out all the
consequences of the illegal act and re-establish the situation which would, in all probability, have
existed if that act had not been committed. Restitution in kind, or, if this is not possible, payment of a
sum corresponding to the value which a restitution in kind would bear ….

49. Forms of reparationForms of reparation [Article 34] Full reparation for the injury caused by the
internationally wrongful act shall take the form of restitution, compensation and satisfaction, either
singly or in combination, in accordance with the provisions of this chapter.

50. RestitutionRestitution [Article 35] A State responsible for an internationally wrongful act is under an
obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act
was committed, provided and to the extent that restitution: (a) Is not materially impossible; (b) Does not
involve a burden out of all proportion to the benefit deriving from restitution instead of compensation.

51. • Material restitution (Restitution in kind) [p. 289] An example of restitution in kind is found in the
Temple of Preah Vihear Case (1962)ICJ Rep. 6. in which the World Court ordered Thailand to return to
Cambodia religious objects it had taken illegally from a temple in Cambodia.

52. CompensationCompensation [Article 36] 1. The State responsible for an internationally wrongful act
is under an obligation to compensate for the damage caused thereby, insofar as such damage is not
made good by restitution. … • See, e.g., The I’m Alone case, where the Commissioners recommended
the payment by the United States of $ 25.000 as a material amend in respect of the wrong committed
by the United States in sinking the I’m Alone.

53. SatisfactionSatisfaction [Article 37] 1. The State responsible for an internationally wrongful act is
under an obligation to give satisfaction for the injury caused by that act insofar as it cannot be made
good by restitution or compensation. 2. Satisfaction may consist in an acknowledgement of the breach,
an expression of regret, a formal apology or other appropriate modality….

54. A good example of different forms of satisfaction can be found in the Borchgrave case,(1937) PCIJ,
Ser. A/B, No 72, 165. In this case, a Belgian national was found dead on the roadside in Madrid. The
Belgium Government demanded as reparation: (1) an expression of the Spanish Government’s excuses
and regrets; (2) transfer of the corpse to the port of embarkation with military honours; …and (3) just
punishment of the guilty. See also Rainbow Warrior Arbitration

55. (2) Countermeasures(2) Countermeasures Apart from self-defence. There are two traditional types
of self-help, namely: (1) retorsion; and (2) reprisals. A retorsion is an unfriendly act against an unfriendly
act which does not involve a breach of an international obligation. Examples are: (1) Disruption of
normal diplomatic relations; (2) Embargoes of various kinds; (3) Withdrawal of voluntary aid
programmes.

56. • A reprisal is an unlawful act in response to an unlawful act of another State. • According to modern
terminology, the term ‘countermeasures’ mainly refers to ‘reprisals’. • The pre-condition for any lawful
countermeasure or reprisal is that another State must first commit an internationally wrongful act
against the State taking the countermeasure.

57. • A countermeasure (although it involves a breach of an international obligation) is done in response

to the wrongful conduct of the wrong- doing State and is, therefore, deemed to be lawful under
international law. • Examples: Suppose that State B committed an internationally wrongful act against
State A. (1) A could seize or freeze the assets of B available within its jurisdiction;

58. (2) A could suspend its treaty obligations towards B; (3) A could confiscate property owned by
companies of B available in A. • Like other forms of self-help, countermeasures are open to abuse. They
are, therefore, justified only in certain conditions and are subject to stringent limitations.

59. Limitations on countermeasuresLimitations on countermeasures (1) Countermeasures must be

directed at the wrongdoer State only and with the objective of compelling it to cease the wrongful act or
to make reparation for it [Art. 49]; (2) Countermeasures shall not involve the use of armed force [Art.
50(1)(a)] [obligation to refrain from the use of force, Art. 2(4) of the Charter] ; (3) Countermeasures shall
not violate basic obligations under international law, e.g., obligations for the protection of fundamental
human rights or obligations under jus cogens [Art. 50(1) (b)(c)&(d)];

60. Limitations (Cont.)Limitations (Cont.) (4) Countermeasures shall not affect any dispute settlement
procedure between two parties and inviolability of diplomatic agents, etc.[Art. 50(2)] (5) Principle of
‘Proportionality’: countermeasures must be commensurate with the injury suffered [Art. 51]; see -
Naulilaa case(1928) where it was held that one should consider as excessive and therefore unlawful,
countermeasures that are out of all proportion to the act motivating them; see also Air Services
Arbitration, (1946) 17 RIAA 417.

61. Conditions relating to resort toConditions relating to resort to countermeasurescountermeasures (1)

Before taking countermeasures, the injured State shall notify its decision to take them and offer to
negotiate [Art. 52(1)]; (2) Countermeasures may not be taken and if already taken must be suspended,
if: (a) the wrongful act has ceased; and (b) the dispute is pending before a court or tribunal which has
the authority to make decisions binding on the parties [Art. 52(3)(4)].

62. 9.7 INVOCATION OF RESPONSIBILITY9.7 INVOCATION OF RESPONSIBILITY RESPONSES BY THE

INJURED STATERESPONSES BY THE INJURED STATE AND OTHER STATESAND OTHER STATES • Once it has
been established that a State is responsible under international law, the next step to be considered is
what the injured State, or other States having the legal interest in the breach, may do, or what action
they may take in order to secure the performance of the obligations of cessation and reparation on the
part of the responsible State.
63. 9.7.1 Invocation of responsibility by an9.7.1 Invocation of responsibility by an injured Stateinjured
State • Under Article 42, a State is entitled as ‘an injured State’ to invoke the responsibility of another
State if the obligation breached is owed to: (a) that State individually; or (b) a group of States including
that State, or the international community as a whole, and the breach of the obligation specially affects
that State.

64. • The concept of the ‘injured State’ is important in the invocation of responsibility. This is the State
whose individual right has been infringed by the internationally wrongful act or which has otherwise
been particularly affected by that act. • A state which is injured in the sense of Article 42 is entitled to
resort to all means of redress. It can raise a claim against the responsible State, commence proceedings
before an international tribunal, or take countermeasures.

65. 9.7.2 Invocation of responsibility by a9.7.2 Invocation of responsibility by a state other than the
injured state:state other than the injured state: The concept of obligationsThe concept of obligations
erga omneserga omnes • The term “erga omnes” means “towards all”. • Obligations erga omnes are
concerned with the enforceability of norms of international law, the violation of which is deemed to be
an offence not only against the state directly affected by the breach, but also against all members of the
international community.

66. • According to Article 48 (1), “any State other than an injured State is entitled to invoke the
responsibility of another State in accordance with paragraph 2 if: … (b) The obligation breached is owed
to the international community as a whole.” • The existence of the obligations erga omnes has been
confirmed by the International Court of Justice in Barcelona Traction, Light and Power Co. case:

67. Barcelona Traction CaseBarcelona Traction Case • 33. … [A]n essential distinction should be drawn
between the obligations of a State towards the international community as a whole, and those arising
vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the
concern of all States. In view of the importance of the rights involved, all States can be held to have a
legal interest in their protection; they are obligations erga omnes.

68. • 34. Such obligations derive, e.g., in contemporary international law, from the outlawing of acts of
aggression, and of genocide, as also from the principles and rules concerning basic rights of the human
person including protection from slavery and racial discrimination.

69. 9.8 TREATMENT OF FOREIGN9.8 TREATMENT OF FOREIGN NATIONALSNATIONALS • A state has no

general obligation to admit foreigners or foreign companies to its territory. However, once foreign
nationals or companies are present in its territory, the State is under an international obligation not to
ill-treat them. • If the State violates this obligation it may incur international responsibility to the State
of whom the person is a national. • This type of State responsibility is one of the commonest forms of
responsibility that arises in international law today.

70. The law of diplomatic protectionThe law of diplomatic protection • The national State has the right
under international law to extend diplomatic protection over its nationals or corporations present in a
foreign country. • The ‘law of diplomatic protection’ is an important subset of State responsibility. It can
be defined as “resort to diplomatic action or other means of peaceful settlement by a State adopting in
its own right the cause of its national in respect of an injury to that national arising from an
internationally wrongful act of another State.”

71. 9.8.1 National treatment or international9.8.1 National treatment or international minimum

standard?minimum standard? • Whether or not a State is internationally responsible for the way it
treats foreign nationals depends on the standard of treatment which international law obliges that State
to adopt. • It is only if the State falls below this standard that it becomes internationally responsible. •
Unfortunately, there is considerable debate as to the correct standard of treatment. • There are two
contrary views in this respect: the standard of national treatment and international minimum standard.

72. National treatmentNational treatment • The state is not responsible if it accords foreign nationals
standard of treatment which is not less than its own nationals, even though that standard may be much
lower compared to international standard. • it is favoured by ‘developing States’ especially because it
allows them to establish an economic and social system of their own design. • It allows a State to
nationalize property owned by foreigners without fear of international responsibility, if its national law
allowed it to nationalize the property of its own nationals.

73. International minimum standardInternational minimum standard • Many states, especially those of
the developed world, maintain that the treatment of foreign nationals is governed by an ‘international
minimum standard’. • This means that every state must treat foreign nationals within its territory by
reference to a minimum international standard, irrespective of how national law allows that State to
treat its own nationals. The standard has enjoyed the support of many international tribunals. [e.g.,
Neer claim]

74. What is the correct standard to beWhat is the correct standard to be followed?followed? • There is
no real consensus about which standard is obligatory under customary international law. • This has
caused considerable problems in the field of expropriation of foreign property. • Although it appears
that with globalization, more and more countries are ready to support the international minimum
standard, the acute problem is that there is no agreement in respect of the content of this standard.

75. Examples of the international minimum standard inExamples of the international minimum standard
in operationoperation • Duty not to harm: The State and its organs have the legal obligation to refrain
from harming foreign nationals (see Youmans Claim). • Not to mistreat in lawful custody: In the Roberts
Claim, it was held that the treatment of Roberts in Mexican prison and the length of detention before
facing trial were unreasonable and below the ‘ordinary standards of civilization’. • Denial of justice: “A
State is responsible if an injury to an alien results a denial of justice.”

76. • Denial of Justice exists when there is a denial, unwarranted delay or obstruction of access to
courts, gross deficiency in the administration of judicial or remedial process, failure to provide those
guarantees which are generally considered indispensable to the proper administration of justice, or a
manifestly unjust judgment. • In Chattin Claim, Mexico was held responsible for inadequacies and
unfairness in the trial and prosecution of Chattin.
77. 9.8.2 Admissibility of claims9.8.2 Admissibility of claims Article 44 The responsibility of a State may
not be invoked if: (a) The claim is not brought in accordance with any applicable rule relating to the
nationality of claims; (b) 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.

78. 9.8.2.1 Nationality of claims9.8.2.1 Nationality of claims A state can make an international claim
against another State when the injured person is its national. The general rule on ‘protection of
nationals’ can be found in the following leading case:

79. Mavrommattis Palestine Concession caseMavrommattis Palestine Concession case

(Jurisdiction)(Jurisdiction) (1924) PCIJ Ser. A, No. 2, p.12(1924) PCIJ Ser. A, No. 2, p.12 • It is an
elementary principle of international law that a state is entitled to protect its subjects, when injured by
acts contrary to international law committed by another state, from whom they have been unable to
obtain satisfaction through the ordinary channels. By taking up the case of one of its subjects and by
resorting to diplomatic action or international judicial proceedings on his behalf, a state is in reality
asserting its own rights.

80. Bond of nationality: basis for the claimBond of nationality: basis for the claim Panevezys-Saldutiskis
CasePanevezys-Saldutiskis Case • The case concerned a claim for compensation for the expropriation of
a railway company filed by Estonia against Lithuania. • Held: It is the bond of nationality between the
state and the individual which alone confers upon the state the right of diplomatic protection, and… the
right to take up a claim.

81. (1)(1) Protection of private individualsProtection of private individuals The Hague Convention on the
Conflict of Nationality Laws, 1930 Article 1 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 with international
conventions, international customs, and the principles of law generally recognised with regard to
nationality …

82. Hague ConventionHague Convention [Cont.][Cont.] Article 5Article 5 Within a third state, a person
having more than one nationality shall be treated as if he had only one…. A third state shall, of the
nationalities which any such person possesses, recognise exclusively in its territory either the nationality
of the country in which he is habitually and principally resident, or the nationality of the country with
which in the circumstances he appears to be most closely connected.

83. Nottebohm caseNottebohm case Liechtenstein v Guatemala; 1955 ICJ Rep. 4Liechtenstein v
Guatemala; 1955 ICJ Rep. 4 - Mr. Nottebohm was born in Germany. In 1905 he went to Guatemala,
where he resided and conducted his business activities until 1943. - In 1939, he visited Liechtenstein to
apply for naturalization. After acquiring Liechtenstein nationality, he went back to Guatemala. - Later,
Guatemala expelled, and seized the property of, Nottebohm. Liechtenstein instituted proceedings
against Guatemala. Guatemala argued that Liechtenstein could not extend diplomatic protection to
Nottebohm in a claim against it.
84. Nottebohm caseNottebohm case [Cont.][Cont.] Judgment of the ICJ • …Nationality is a legal bond
having as its basis a social fact of attachment, a genuine connection of existence, interests and
sentiments, … the individual upon whom it is conferred … is in fact more closely connected with the
population of the state conferring nationality than with that of any other state.

85. Nottebohm caseNottebohm case [Cont.][Cont.] • He (Nottebohm) had been settled in Guatemala for
34 years. He had carried on his [business] activities there. • In contrast, his actual connections with
Liechtenstein were extremely tenuous. No settled abode, no prolonged residence in that country. No
intention of settling there. … on the contrary, he returned to Guatemala very shortly after his
naturalization and showed every intention of remaining there. …

86. Nottebohm caseNottebohm case [Cont.][Cont.] These facts clearly establish, on the one hand, the
absence of any bond of attachment between Nottebohm and Liechtenstein and, on the other hand, the
existence of a long-standing and close connection between him and Guatemala. That naturalization
…lacking in genuineness requisite to an act of such importance, …It was granted without regard to the
concept of nationality adopted in international relations.

87. Nottebohm caseNottebohm case [Cont.][Cont.] • (Therefore) Guatemala is under no obligation to

recognise a nationality granted in such circumstances. Liechtenstein consequently is not entitled to
extend its protection to Nottebohm vis- à-vis Guatemala and its claim must, for this reason, be held to
be inadmissible. …

88. (2)(2) Protection of CompaniesProtection of Companies • A State can bring an international claim on
behalf of a company possessing its nationality • A company is regarded as having the nationality of the
State under the laws of which it is incorporated.

89. Barcelona Traction, Light and Power CoBarcelona Traction, Light and Power Co..,, [1970[1970 ICJ
Rep. 3]ICJ Rep. 3] • Barcelona Co. was established in Canada under Canadian law to develop electricity
supplies in Spain. In 1948 a Spanish court declared the Co. bankrupt and ordered the seizure of the
assets of the Co. in Spain. Canada intervened on behalf of the company but later withdrew. Belgium
brought this claim in respect of the injury to its nationals who were shareholders resulting from the
injury to the company. Spain objected that since the injury was to the company, not the shareholders,
Belgium had no right to bring the claim.

90. Barcelona Traction caseBarcelona Traction case [Cont.][Cont.] Judgment of the ICJ • The concept …of
the limited liability company … the separate entity of the company and that of the shareholders, each
with a distinct set of rights. … So long as the company is in existence the shareholder has no right to the
corporate assets. … • Barcelona Traction has lost all its assets in Spain, and was placed in receivership in
Canada….

91. Barcelona Traction caseBarcelona Traction case [Cont.][Cont.] • It cannot, however, be contended
that the corporate entity of the company has ceased to exist.… It has not become incapable in law of
defending its own rights and the interests of the shareholders. Only in the event of the legal demise of
the company are the shareholders deprived of the possibility of a remedy available through the
company; …that an independent right of action for them and their government could arise.

92. Barcelona Traction caseBarcelona Traction case [Cont.][Cont.] • The traditional rule attributes the
right of diplomatic protection of a corporate entity to the state under the laws of which it is
incorporated and in whose territory it has its registered office. • In the present case, it is not disputed
that the company was incorporated in Canada and has its registered office in that country. •
Accordingly, the Court rejects the Belgian Government’s claim…

93. 9.8.2.2 Exhaustion of local remedies9.8.2.2 Exhaustion of local remedies • It is an established rule of
customary international law that an injured individual (or company) must have exhausted any available
and effective local remedy in the responsible State before an international claim can be brought on his
behalf. [See Art. 44 (b)].

94. Ambatielos ArbitrationAmbatielos Arbitration Greece v UK (1956) 12 RIAA 83Greece v UK (1956) 12

RIAA 83 - Ambatielos, a Greek ship-owner, contracted to buy some ships from the British Government
and later accused the British government of breaking the contract. - In the litigation before the English
HC, Ambatielos failed to call an important witness and lost; his appeal was dismissed by the CA. - Greece
made a claim on his behalf before an international arbitral tribunal. - Held: Ambatielos failed to exhaust
local remedies ( he had failed to appeal from the CA to the H L).

95. Robert E. BrownRobert E. Brown casecase (US v UK), (1923) 6 RIAA 120, at 129(US v UK), (1923) 6
RIAA 120, at 129 • The Tribunal held that the local remedies rule did not apply because it found that “All
three branches of the Government of the South African Republic conspired to ruin the claimant’s
enterprise…. The judiciary, at first recalcitrant, was at length reduced to submission and brought into
line with a determined policy of the Executive.”

96. Finnish Ship-owners ArbitrationFinnish Ship-owners Arbitration Finland v UK, (1934) 3 RIAA
1479Finland v UK, (1934) 3 RIAA 1479 • During the World War I, 13 ships belonging to Finnish ship-
owners were used by the UK Government, of which 4 were lost. • The ship-owners claimed damages
before the Admiralty Arbitration Board in the UK. The Board decided: the ships were requisitioned by
Russia and not, as required by the British legislation, by the UK, and that accordingly no compensation
was payable. • No appeal. The matter was later brought by Finland before an international arbitration
tribunal.

97. Finnish Ship OwnersFinnish Ship Owners [Cont.][Cont.] The UK objected on the ground that the
Finnish ship-owners had not exhausted local remedies in the UK. The arbitrator rejected this objection.
Award of the Arbitrator • The local remedies rule does not apply where there is no effective remedy.
This is the case where a recourse is obviously futile. … • The appealable points of law obviously would
have been insufficient to reverse the decision of the Arbitration Board.