Sourcebook on Public International Law

Although international law may have developed as a system of rules governing the relations between sovereign states, it has developed beyond that. The establishment of the League of Nations after the First World War marked a shift in approach to international relations which received further impetus with the setting up of the United Nations Organisation in 1945. The Nuremberg War

International law is not imposed on states in the sense that there is no international legislature. As has been seen, the traditional Western view is that international law is founded essentially on consensus. As will be seen in Chapter 3, it has traditionally been created in two ways: by the practice of states (custom) and through agreements entered into by states (treaties). Once

In very limited situations, international law does countenance self-help in the sense of use of armed force. It is a fundamental rule of international law that the first use of armed force is prohibited but a right of self defence does exist and again the actual use or threat of action in self defence may be effective in enforcing international obligations. The law relating to the use of force,

International law is not confined to regulating the relations between states, and the scope of international law is no longer limited to the rules of warfare and

The dualist doctrine developed in the 19th century partly because of the development of theories about the absolute sovereignty of states and partly alongside the development of legal positivism. Dualist doctrine considers international law and municipal law to be two separate legal orders operating and existing independently of one another. International law is the law

There is ample judicial and arbitral authority for the rule that a state cannot rely upon the provisions or deficiencies of its municipal law to avoid its obligations under international law. One of the earliest authorities is the decision in the During the American Civil War, a number of

As far as the rules of customary international law are concerned the English courts have generally adopted the doctrine of incorporation. Provided that they are not inconsistent with Acts of Parliament or prior authoritative judicial decisions, then rules of customary international law automatically form part of

The British practice regarding treaties is different from that regarding customary law. The main reason for this is that the conclusion and ratification of treaties are matters for the executive, coming as they do under the scope of the prerogative. Parliament has no say in the making of treaties. If they were to have direct effect, the Crown could alter the law without recourse to Parliament:

It is impossible to discern any uniform practice among states, although a number of similarities in approach can be identified. The majority of states with a common law system adopt an approach similar to that in Britain. Those states which have a written constitution do have the opportunity to make the situation clear by making specific reference to the status of international law. For

The term ‘sources of law’ has generated considerable debate among writers and is capable of conveying more than one meaning.

Custom in international law is a practice followed by those involved because they feel legally obliged to behave in such a way. Custom must be distinguished from mere usage, such as acts done out of courtesy, friendship or convenience rather than out of obligation or a feeling that non-compliance would produce legal consequences. Article 38 circumscribes customary law as ‘international

3.4.2.1 State practice State practice includes any act, articulation, or other behaviour of a state which discloses the state’s conscious attitude concerning a customary rule or its recognition of a customary rule. In 1950 the International Law Commission listed the following classical forms of ‘Evidence of Customary International

The formation and existence of a customary rule requires general state practice. In the North Sea Continental Shelf cases the ICJ postulated that ‘state practice ... should ... have been extensive’. The term ‘general’ indicates that common and widespread practice is required, although universal practice is not necessary. It seems also that practice must be representative in the sense that all the major

If, and when, certain patterns of practice are emerging, or have emerged, states may wish to diverge or dissent from such practice. States may dissent from a customary rule from its inception onwards. The feasibility of such dissent was acknowledged by the ICJ in the Anglo-Norwegian Fisheries case (1951). The case concerned the manner in which Norway calculated its territorial sea and the

The issue here is the extent to which a multilateral treaty can be used as evidence of customary international law. It is a general rule of international law which is confirmed in Article 34 of the Vienna Convention on the Law of Treaties 1969 that treaties cannot bind third parties without their consent. If a state wishes to enforce the provisions of a treaty against a non-party it is

Amongst these general principles it could be argued that equity, in the sense of justice and fairness, is included and in a number of cases it has been used indirectly to affect the way in which substantive law is applied. The application of equity as a general principle should not be confused with Article 38(2) which states that if both parties to a dispute agree, the court can decide a case In the event of the court being unable to solve a dispute by reference to treaty law, custom or general principles, Article 38 provides a subsidiary means of

Over the last 30 years there has been increasing support for the view that Article 38 should not be understood as a comprehensive and complete list of the sources of international law. On the one hand, examples can be found from the more recent decisions of the ICJ which seem to be based on rules of law not readily falling within the triad of sources created by the statute. On the other

Regional organisations, for example, the European Union, the Council of Europe, the Organisation of American States, and the Organisation for African Unity can, via their internal measures, demonstrate what they, as a regional group, consider to be the law. This is especially important in the area of human rights law, which is discussed in Chapter 15.

A recent development in the study of the sources of international law has been the claim that international law consists of norms of behaviour of varying decrees of density or force. On the one hand there are rules, usually contained in treaties, which constitute positive obligations binding states objectively. On the other hand, there are international instruments which, while not binding on

Having discussed the distinction between hard and soft law it seems appropriate to turn to consideration of a duality of levels within hard law itself. Many municipal systems distinguish between (rules or principles of public policy which cannot be derogated from by legal subjects, often referred to as ordre public) and jus dispositivum (norms which can be replaced by subjects

The significance of treaties as a source of international law has already been discussed in Chapter 3. This chapter is concerned with the mechanics of treaties: how they are concluded, interpreted, observed, and terminated.

It should also be noted that the particular designation of the agreement does not govern its validity as a treaty – agreements may be entitled Conventions, Accords, Final Acts, Statutes, Exchange of Notes, Protocols – they are all to be regarded as treaties for these purposes. The designation given may however be of relevance in indicating the nature of the transaction. For example an Once a state has decided to create a treaty, it is necessary to appoint representatives to conduct the negotiations. It is necessary that such representatives should be fully accredited and given sufficient authority to conduct negotiations, and conclude and sign the final treaty. As a general rule

When the text of the treaty has been agreed upon and adopted, the treaty is ready for signing. Signing the treaty, which is usually a formal occasion, serves to authenticate the text. Signing is, therefore, essential to the validity of the treaty unless other methods of authentication have been agreed.

When a state has not signed a treaty it can only accede or adhere to it. Accession indicates that a state is to become a party to the whole treaty, whereas adhesion only involves acceptance of part of a treaty. Strictly speaking states can only accede or adhere to a treaty with the consent of all the existing parties. In practice, the consent of existing parties to accession is often implied. It can frequently happen that a state, while wishing to become a party to a treaty, considers that it can do so only if it can exclude or modify one or more particular provisions contained in the treaty. Ideally, such a state will be able to

The growth of reservations to treaties coincides with the growth in multilateral conventions. With regard to bilateral treaties, the two parties to the treaty may disagree over the precise terms of the treaty which is to bind them. If this is the case, they may re-negotiate the terms until they achieve full agreement. There will be no treaty in existence until both sides agree on the terms. From this it

Article 28 of the VCT 1969 reflects the customary rule of non-retroactivity of treaties. The provisions of a treaty do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the treaty entered into force for that state, unless a different intention appears from the treaty or is otherwise established. The rule applies to the VCT 1969 itself which

The general rule expressed in the maxim, pacta tertiis nec nocent nec prosunt, is that treaties cannot bind third parties without their consent. The rule is affirmed in Article 34 of the VCT 1969. However, situations in which the rights and duties of third parties are involved have occasionally been created by treaties which are said to establish objective regimes, creating rights and obligations

Section 3 of the VCT 1969 adopts a composite position. Article 31 states that treaties ‘shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of their object and purpose’. 4.7.2.1 Good faith

The context, for the purposes of interpretation, includes the text, its preamble and annexes and any agreement relating to the treaty made between all the parties, or made by some of the parties and accepted by the other, in connection with the conclusion of the treaty. The text of the treaty must be read as a whole. The preamble to the treaty will often provide assistance in ascertaining the Treaties are often drafted in two or more languages. In the case of bilateral treaties, the normal practice is that the treaty texts should be drawn up in the two languages of the parties, both texts being equally authentic. Multilateral conventions may be concluded in many languages: conventions concluded under the auspices of the UN will be drawn up in Arabic, Chinese, English,

A state cannot plead a breach of its constitutional provisions as to the making of treaties as a reason for invalidating an agreement. For example, where the representative of the state has had her/his authority to consent on behalf of the state made subject to a specific restriction which is ignored, the state will still be bound by that consent except where the other negotiating states were aware of

Many non-Western states take the view that treaties not concluded on the basis of the sovereign equality of all parties are invalid. Thus, treaties between economically powerful states and much weaker states under which the latter grants extensive privileges or facilities to the former should be set aside. For example, the 19th century treaties between the UK and China under which

Articles 54 to 59 of the VCT 1969 provide for various situations where a treaty may be terminated or suspended or where a party may withdraw from a treaty by consent. The most straightforward situation will arise where the treaty either

A fundamental change of the circumstances existing at the time the treaty was concluded has traditionally been a ground for withdrawal or termination. The rule is often referred to as the doctrine of rebus sic stantibus. Before the First World War a number of treaties were brought to an end by states relying on fairly minor changes. Since that time the law has been tightened up and it is

Article 70 of the VCT 1969 provides that termination of a treaty releases the parties form any obligation further to perform the treaty but does not affect rights and obligations or situations created prior to termination. The effect of suspension is to release the parties from their obligations for the period of suspension. The case concerned a dispute between Hungary and Slovakia (successor state to Czechoslovakia) arising from a 1977 treaty between Hungary and Czechoslovakia which provided for the two states to undertake a joint project for the construction of a system of locks, flood protection schemes and

There still exists, although the number is dwindling, a number of territories which have limited/restricted powers of control over their own affairs and can therefore not be considered as fully independent states. The question arises as to whether they possess any degree of international personality prior to full independence.

The Mandate system was introduced by the League of Nations to provide for the administration of the colonies and dependencies of the losing states in the First World War ‘inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world’. The territories concerned were divided into three classes:

It has already been seen that an important requirement of statehood is the capacity to enter into international legal relationships. This inevitably concerns the attitude of other states and in particular raises the question of recognition.

Although the practice of states is far from establishing the existence of a legal duty to recognise an entity which has established the factual characteristics of statehood, with regard to governments the position is even more difficult. The problem of recognition of governments will arise when a new regime has taken power:

Since recognition is basically a political act, it is a decision for the executive branch of government and in the UK it is the Foreign Office which will answer questions about the status of entities which purport to have international personality. Such answers are usually given by means of an executive

A further consequence of recognition is that the courts will give effect to the legislative and executive acts of foreign governments. The classic example of this rule is the case of Luther v Sagor (1921). The plaintiffs in the case had owned a timber factory which had been nationalised by the government of the Soviet Union in 1919. The defendants had bought a quantity of timber produced

One of the underlying principles of international law has been the doctrine of sovereign equality and the consequence that one sovereign cannot exercise authority over another. The practical application of the doctrine means that the many activities carried out by a foreign state cannot be the subject of municipal court proceedings. For example, in Kuwait Airways Corporation v Iraqi Airways

Territory is a tangible attribute of statehood and within that particular geographical area which it occupies a state enjoys and exercises sovereignty. Territorial sovereignty may be defined as the right to exercise therein, to the

Western Sahara was colonised by Spain in 1884 and was known as Spanish Sahara. In 1960 it was added to the UN General Assembly list of non-self- governing territories and from 1963 onwards it was considered by the UN Special Committee on Decolonisation. In 1966 the General Assembly asked Spain, in consultation with Mauritania and Morocco to ‘determine at the earliest

The date on which a dispute over territory ‘crystallises’ is known as the ‘critical date’. In many disputes a certain date will assume particular significance in deciding between rival claims. The choice of the critical date or dates will lie with the tribunal deciding the dispute and will usually depend on the particular facts. Once a date is chosen subsequent events relating to territorial claims will Traditionally, writers have referred to five means by which territory and title to territory may be acquired:

Occupation is preceded by discovery. Discovery alone is insufficient to establish title; it can only serve to establish a claim which in a reasonable period of time must be completed by effective occupation. Published discovery can obviously establish a better claim in time, but is ineffective against proof of continuous and peaceful display of authority by another state.

The possibility of cession of territory under the provision of a peace treaty has already been mentioned in 7.3.2 (above). Cession involves a complete transfer of sovereignty by the owner state to some other state, and may involve a part or all of the owner state’s territory. Traditionally there was no bar on the extent to which one state could cede territory to another, although today, a treaty which

Following both World Wars, the victorious states assumed powers of disposition with regard to the territory of the defeated states. More often that not, such dispositions were subsequently confirmed by the provisions of a peace treaty and thus may be thought to come within the concept of cession. However, it is believed that such dispositions remain valid irrespective of any Disputes over territory may often arise in the context of boundary disputes, and a number of principles exist which may be of assistance in the determination of borders between states. Sometimes a boundary will be evidenced by some physical barrier, but more often than not the border is an invisible line, and where relations between neighbouring states are friendly, agreement will be

It is a general rule of international law that states have exclusive sovereignty over their territory. However, there are a number of exceptions to this general rule where a foreign state(s) may be granted certain rights over the territory of another independent sovereign state. Such situations include leases – for example the 99-year lease granted by China to the UK in respect of the New

The ability of a state to exercise jurisdiction over crimes committed within its territory is an essential attribute of sovereignty, and the territorial principle has received universal recognition. According to the territorial principle, events occurring within a state’s territorial boundaries and persons within that territory, albeit temporarily, are

A development which is linked to the protective principle and to the objective territorial principle is the emergence of a particular type of extra-territorial jurisdiction known as the ‘effects doctrine’. According to this doctrine, States claim jurisdiction over acts committed abroad which produce harmful effects within the territory. The rationale behind the effects doctrine is the need to

Most civil law systems claim a wide jurisdiction to punish crimes committed by their nationals, even on the territory of a foreign state. Those states which make little use of the nationality principle do not appear to protest about its use elsewhere. Although a state may not enforce its laws within the territory of another state, it can punish crimes committed by nationals extra-territorially

Under this principle, jurisdiction is claimed on the basis of the nationality of the actual or potential victim. In other words, a state may assert jurisdiction over activities which, although committed abroad by foreign nationals, have affected or will affect nationals of the state. The Harvard Research Draft Convention on Jurisdiction with Respect to Crime 1935 did not list the passive personality

It has been seen that so far all the bases of jurisdiction have in some way involved a connection with the state asserting jurisdiction. Events have taken place within the territory of the jurisdictional state or they have been committed by or against nationals or in some other way impinge on the interests of the state claiming jurisdiction. International law further recognises that where an

The term extradition denotes the process whereby, under treaty or upon a basis of reciprocity, one state surrenders to another state at its request a person accused or convicted of a criminal offence committed against the laws of the requesting state, such requesting state having jurisdiction. The rationale behind the law and practice of extradition is as follows:

Article 16 of the Harvard Draft Convention provided that no state should have jurisdiction over an offender who had been brought within its territory as a result of measures which themselves breached international law. However, the article appears to be more in the nature of lege ferenda than of lex lata. state practice seems to establish that the illegal seizure of offenders in the territory of

As was stated at the beginning of this chapter, international law is concerned with the propriety of the exercise of jurisdiction. The exercise of jurisdiction over aliens and with respect to events occurring outside the territory may well constitute interference in the domestic affairs of another state. In general, international law prohibits such intervention and it therefore follows that a

As was seen in Chapter 7, the principal basis for jurisdiction is territorial. States are recognised as having authority over people, things and events within their own territory and therefore may exercise jurisdiction over them. However,

The traditional doctrine of state immunity was absolute in that immunity attached to all actions of foreign states. With the rise of industrialisation during the 19th century, States became more involved in commercial activities, particularly in the area of railways, shipping and postal services. The emergence of the Communist states in the first half of the 20th century and the increasing

Until the end of the 1950s, the source of diplomatic law was customary international law. In 1957 the ILC undertook to produce a draft convention on diplomatic relations. This draft formed the basis for the Vienna Convention on Diplomatic Relations 1961 (referred to in this chapter as the Vienna Convention) which was signed on 18 April 1961 and entered into force on 24 April 1964. The

The Vienna Convention provides for varying degrees of immunity which are dependent on the status of the person concerned. There are five main categories of person each attracting differing degrees of immunity:

As has already been indicated, one of the functions of a diplomatic mission is to report on conditions and developments within the receiving state. This function can only be achieved if diplomatic staff enjoy a reasonable freedom of movement and communication. Article 26 of the Vienna Convention provides that all members of the diplomatic mission shall enjoy freedom of movement The primary function of consulates, vice consulates, and consular posts is to represent and deal with nationals of the sending state. They enjoy certain immunities, but not as extensive as those enjoyed by diplomatic agents. The law relating to consular relations is contained in the Vienna Convention on Consular Relations 1963 which entered into force in 1967.

International organisations operate in particular states and will often require the same immunities and privileges as diplomatic missions if they are to carry out their functions effectively. Unfortunately there is no general law applicable to the relations between international organisations and host states. Such immunities and privileges as particular international organisations enjoy must

A corollary of binding legal obligations is legal responsibility for a breach of those obligations. This chapter is concerned with the general rules of international law which determine whether a state is in breach of its

The view that seems to attract majority support is that an objective test should be applied to the actions of states. Provided that the acts complained of can be attributed to the state then it will be liable if those acts constitute a breach of international law regardless of any question of fault or intention. There are certain defences available but the burden of establishing them will be placed

Article 8 of the Draft Articles provides that:

The mere fact that a state organ or official acts outside municipal law or express authority does not automatically mean that a state will not be responsible for their actions. Article 10 of Part I of the Draft Articles provides that:

Article 11 of the Draft Articles makes it clear that the conduct of a person or persons not acting on behalf of the state will not be considered as an act of the state under international law. It therefore follows that the actions of rebels and insurrectionaries will not normally be considered as acts of the state and this is provided for in Article 14. However, the state is required to show due diligence,

It was recognised by the Nuremberg War Crimes Tribunal that ‘international law imposes duties and liabilities upon individuals as well as upon states’. The International Law Commission has now produced a set of Draft Articles dealing with the international criminal responsibility of individuals.

At the same time as work has been carried out on the preparation of a draft code of international crimes, the ILC has also been preparing a draft statute for an international criminal court. It is proposed that an international diplomatic conference be held in Rome in 1998 to discuss and adopt a convention on an international criminal court. The hope is that the establishment of such a court As was indicated in 10.1 a state may suffer injury indirectly when the victim of wrongful behaviour is one of its nationals. Not every injury suffered by a foreign national abroad will constitute an international wrong. The injury will only give rise to issues of state responsibility if it can in some way be linked to the foreign state. As was indicated in 10.4 a state will not generally be liable for

The general rule is that it is only injured states which are able to bring international claims against other states for a breach of some international obligation. The principle was strictly applied in the second phase of the South when the ICJ held that Liberia and Ethiopia had no legal interest in South Africa’s treatment of the inhabitants of Namibia.

Where a state has suffered directly from an internationally wrongful act such as the breach of a treaty obligation owed to it there will be little difficulty in establishing its right to bring an international claim. However, states may also suffer indirectly. Internationally wrongful acts can occur in respect of the treatment of individuals or corporations. In such situations, the claiming state

incorporated. The problem arises in the fact that companies may be incorporated in states with which they have very little connection. The right of states to bring claims on behalf of shareholders was discussed in the Barcelona The Barcelona Traction, Light and Power Company was a

An important rule applicable to indirect injuries to states is that a claim will not be admissible on the international plane unless the individual or corporation has exhausted the remedies provided by the local state. The rule is justified by political and practical considerations. It allows the local state to redress any wrong that has been committed before the matter reaches the level of

In certain circumstances, a breach of an international obligation imputable to a state may not give rise to international responsibility. Chapter V of the ILC’s Draft Articles, Part I indicates a number of circumstances which will ‘preclude wrongfulness’ and thus provide a defence to international claims. State responsibility will not arise in the following situations:

The law of the sea is that law by which states regulate their relations in respect of the marine territory subject to coastal state jurisdiction and those areas of the sea and sea bed beyond any national jurisdiction. The law is an amalgam of

In determining the extent of a coastal state’s territorial sea and other maritime zones it is obviously necessary to establish from what line on the coast the outer limits are to be measured. This line is referred to as the baseline. The waters on the landward side of the baseline are internal waters and are an integral part of the territory of the coastal state. None of the provisions of the law of the sea

Both Article 13 of the TSC and Article 9 of the LOSC provide that if a river flows directly into the sea, the baseline shall be a straight line across the mouth of the river between points on the low water line of its banks. No limit is placed on the length of such a closing line. The rule applies only to rivers which flow directly into the sea. It does not apply to rivers which flow into the sea via estuaries

A reef is formed by a ridge of rocks or coral which lies near the surface of the sea. An atoll is a reef which forms in the shape of a horseshoe or ring, usually enclosing an island. Reefs and atolls may be permanently submerged or, if exposed at low tide, may be situated from the mainland at a distance greater than the breadth of the territorial sea. They would therefore not come within the

Archipelago is the term used to refer to a group of islands and a question arises as to whether the baseline should follow the low-water mark of every island or whether straight baselines can be used to connect the outermost parts of the group of islands to enclose the archipelago. The question was discussed at UNCLOS I but no final agreement was reached although Article 4 of the TSC Internal waters are those which lie on the landward side of the baseline from which the territorial sea and other maritime zones are calculated. As has already been seen, internal waters may include bays, estuaries and ports and waters enclosed by straight baselines. Internal waters constitute an integral part of the coastal state and the coastal state enjoys full sovereign rights over them. There is

The rules of sovereignty over internal waters mean that there is no general right in customary law for foreign ships to enter a coastal state’s ports. This point was confirmed by the ICJ in the Nicaragua case (1986). Although coastal states will normally allow the entry of foreign merchant ships into their ports, there is no indication that such practice is supported by sufficient opinio juris to create a

The concept of archipelagic waters was created at UNCLOS III to deal with the situation arising where archipelagic states made use of straight baselines to enclose the archipelago. Although archipelagic waters form an integral part of the territory of the archipelagic state in the same manner as internal waters, they are subject to certain rights enjoyed by foreign states which are set out in Throughout the history of modern international law it has been accepted that coastal states enjoy certain rights in the seas adjoining their coasts. A distinction has long been made between the freedom of the high seas over which no claims to sovereignty could be made and territorial waters over which coastal states enjoyed particular rights and undertook certain duties. What was not settled

A major cause of disputes between states is the delimitation of maritime boundaries. Problems can arise in determining the extent of one state’s territorial sea or disputes may arise between adjacent or opposite states as to how maritime territory is to be apportioned. It is extremely difficult to set down any universally accepted rules since each case will usually depend very much

The territorial sea is subject to the sovereignty of the coastal state, and the only right which foreign ships have, apart from any specific treaty provision, is the right of innocent passage. Consequently once a ship ceases to be innocent, or steps outside the scope of passage, it may be excluded from the territorial sea. It also follows that a coastal State has the right to suspend or deny passage

Following the Second World War an increasing number of states made claims to extend their authority over ships in waters beyond the territorial sea. Such zones were known as ‘contiguous zones’ and the rights within them had to be positively established in each case. In 1958 contiguous zones were given more

Article 57 of the LOSC provides that the EEZ can extend to a distance of up to 200 miles from the baseline. The regime of the EEZ provides that coastal states do not enjoy full sovereign rights but only sovereign rights for the purpose of exploiting and exploring, conserving and managing the natural resources, whether living or non-living, of the sea bed and subsoil and the superjacent Strictly speaking the continental shelf is a geographical term to describe the sea bed, which is covered by shallow water of generally less than 200 metres, projecting from the coast before a relatively steep descent (the continental slope) to the deep sea bed. The breadth of the continental shelf varies enormously: off some parts of the Pacific coast of the USA the continental shelf extends for less

Part VI LOSC proved to be the least controversial sections of the convention and for the most part is generally regarded as being a codification of customary international law. This point appeared to be confirmed by the ICJ in the shelf are inherent and, unlike in the case of the EEZ, do not have to be expressly

Traditionally, the high seas were defined as ‘all parts of the sea not included in the territorial sea or in the internal waters of a state’ (Article 1 of the HSC). With the advent of the EEZ and the concept of archipelagic waters, this definition has now to be modified. Article 86 of the LOSC states that the high seas rules apply to: ‘... all parts of the sea that are not included in the EEZ, in the territorial sea or

In general, the flag state, the state which has granted to a ship the right to sail under its flag, has the exclusive right to exercise legislative and enforcement jurisdiction over its ships on the high seas (Article 6 of the HSC and Article 92 of the LOSC). The fiction that a ship is a floating piece of territory is not now approved. The exclusiveness of the flag state’s jurisdiction is not, however,

Collisions at sea may involve two states, each of which considers the collision and those responsible for it to be within its jurisdiction. The existence of concurrent jurisdiction was upheld by the PCIJ in the Lotus case (1927). rule was much criticised and the position is now set out in Article 11 of the HSC and Article 97 LOSC which provide that penal and disciplinary jurisdiction in

The right of hot pursuit, recognised at customary international law in cases such as the I’m Alone case (1933) and in Article 23 of the HSC, allows a coastal state’s warships or military aircraft to pursue a foreign ship which has violated the coastal state’s laws within internal or territorial waters and to arrest it on the high seas. Pursuit must begin while the foreign ship is within territorial waters

Article 110 of the HSC provides that every state shall take such measures for its vessels as are necessary to ensure safety at sea with regard to communications, the prevention of collisions, crew conditions and seaworthiness of ships. A slightly tougher regime is spelt out in LOSC. Additionally, there are some specific conventions mostly the work of the International Maritime Sovereignty over the deep sea bed, that is to say the area of the sea bed beyond the continental shelf, has become a topic of conflict as technology has developed. The discovery of important mineral resources in the deep sea bed was made 100 years ago but it has only comparatively recently become technically and commercially viable to exploit such resources. The main

Up until the early part of this century the law relating to air space was not settled. Certain writers suggested that there should be a territorial air space above a state’s territory with a similar regime to that of the territorial sea.

A question that flows from the fact that states possess sovereignty over the air space above their territory is what action can be taken against ‘trespassing’ aircraft. As far as military aircraft are concerned the international law position appears to be clear. Unauthorised intrusion by military aircraft (with the exception of military transport aircraft) may be met by the use of force without

An issue of major importance as far as air law is concerned relates to the liability of civil airline companies for death or injury suffered by passengers. The Warsaw Convention for the Unification of Certain Rules relating to International Carriage by Air 1929 (Warsaw Convention) as amended at the Hague in 1955 establishes upper limits for liability and deals with issues of

I. PRINCIPLE OF THE PEACEFUL SETTLEMENT OF DISPUTES BETWEEN STATES

Negotiation is by far the most popular means of dispute settlement and consists of discussions between the interested parties. It is distinguished from other diplomatic means of settlement in that there is no third party involvement. Negotiations are normally conducted through ‘normal diplomatic channels’ (foreign ministers, ambassadors, etc), although some states have set up semi-

Conciliation also involves the use of third parties, but the third party plays a more detached role. Rather than becoming involved in the negotiations, the conciliator will investigate the dispute and present formal proposals for a solution. Conciliation is often undertaken by a commission of conciliation acting as a formal body. In 1922 the League of Nations adopted a Resolution

Inquiries prove useful where a dispute is largely concerned with issues of fact. The need for some independent inquiry procedures was illustrated by events leading to the Spanish-American War of 1898. In February 1898 a US warship, at anchor in Cuba, was destroyed by an explosion which killed large numbers of US sailors. Relations between Spain and the US were already strained and the

By judicial settlement is meant a settlement brought about by a properly constituted international judicial tribunal, applying rules of law. The most well known of the international judicial tribunals is the International Court of Justice. There are also a number of regional international tribunals and also tribunals with jurisdiction over particular disputes. For example, the Law of the Sea

13.8.3.1 Jurisdiction in contentious cases Article 34 of the Statute of the Court declares that only states may be parties before the ICJ and the court is open to all members of the UN (who are automatically parties to the Statute). states which are not UN members may become parties to the Statute on conditions set by the UN General Assembly

The ICJ may be called upon to exercise an incidental jurisdiction, independently of the main case: hearing preliminary objections, applications to intervene, and taking interim measures. will be asked to consider objections to jurisdiction. These jurisdictional issues

There have been a number of cases in recent years where the court has had to have recourse to Article 53. Its effect is to require the court to advance the legal arguments of the absent party. By Article 24 of the UN Charter the UN Security Council is given primary responsibility for the maintenance of international peace and security and member states are under an obligation to carry out the decisions of the Security Council. Chapter VI of the Charter deals with the pacific settlement of disputes. Under Article 34 the Security Council has the power to investigate any dispute

The corollary of the requirement of any effective legal system to provide a fair and adequate means of peacefully settling disputes is a prohibition on the unlawful use of force. The obligation not to use unlawful force can be said to be

In traditional international law it was quite clear that the principle volenti non fit applied to the effect that a state was free to allow another to use force in any form in its own territory. The question arises as to whether the principle survives the UN Charter. In other words, is consent one of the exceptions to the prohibition on use of force? There seems little doubt from state practice and

Humanitarian intervention can be distinguished from action taken to protect nationals in that it applies to action taken to protect non-nationals. As has already been seen the distinction is not always a clear one in practice and states often claim to be protecting both their own and other nationals when intervening in foreign states. The topic being discussed here must also be

The use of force to achieve self-determination and for the assistance of national liberation movements has increasingly been claimed as legitimate in recent years, on the ground that it furthers the principles of the UN Charter. The issue may arise in three ways. First, may the colonial power use force to suppress self-determination movements? This would seem to be unlawful being

The term ‘United Nations’ was first used shortly after the USA entered World War Two in 1941. On 14 August 1941 Churchill and Roosevelt met in mid- Atlantic and issued a declaration of common principles known as the Atlantic Charter on which was based their hopes for a better future for the world. These

Under the UN collective security system as originally envisaged, the Security Council was to be the organ through which international peace and security were to be maintained. It is given specific powers in Chapter VII of the Charter to act on behalf of all states, even if this means using force itself. Resolutions passed under Chapter VII provisions are binding on all states.

In the history of the UN, the Security Council has authorised the use of force under Chapter VII on six occasions and these will be looked at in turn. In addition the UN has on a number of occasions imposed measures falling short of the authorisation of the actual use of force. The use of Chapter VII enforcement action has dramatically increased since the collapse of the former

Following the unilateral declaration of independence by Southern Rhodesia in November 1965 the Security Council passed a resolution calling upon all states to refrain from any action which would assist and encourage the illegal regime and in particular to desist from providing it with arms, equipment and military material and to do their utmost to break all economic relations with Southern

Within the last two years the use of Chapter VII procedures has taken on a new aspect raising questions of humanitarian intervention by the UN. In both Bosnia and Somalia the UN Security Council recognised that the situations there constituted a threat to peace and security. However, the main concern in both cases was the provision of humanitarian relief to the local population rather

Under Article 53 of the Charter the Security Council can utilise regional organisations such as the OAS and OAU for ‘enforcement action’. However it is clearly stated in Article 53 that no enforcement action can be taken without the authorisation of the Security Council. Some states argue that regional organisations can take measures on their own decision to maintain the peace

Traditionally there has always been a distinction made between the law relating to the resort to war (the jus ad bellum) and the law governing the conduct of the war (the jus in bello). The law of war in classical international law was the

Throughout history there have been restrictions placed on those using armed force in respect of methods of combat, use of weapons and treatment of civilians and prisoners of war. Up until the middle of the last century the source of the law governing armed conflict was almost entirely customary law. However, over the last 140 years a significant number of treaties have been agreed, many

The outbreak of war has far-reaching effects on the relations between the opponent belligerent states. The general rule of international law is that states are free to enact municipal legislation dealing with such matters as trading with the enemy, and provide for seizure of enemy property. This would seem to be true of war and any other armed conflict. As far as individuals are concerned

The widespread use of defoliants by the USA during the Vietnam War and growing concern about the environment generally led to calls for regulation of weapons which have a particular effect on the environment. During the Vietnam War there were press reports that the USA was attempting to artificially produce rain in the war zone to flood North Vietnamese supply

A basic distinction in the law of armed conflict must be drawn between combatants and civilians. Combatants are those under command, having fixed visible and distinctive emblems, carrying arms openly, and observing the laws of war. The basis of the law of armed conflict is that it is the combatants who fight the war, and if they are captured they are entitled to Prisoner of War

Humanitarian law in the widest sense concerns the protection of individuals in war or armed conflict. What are discussed here are humanitarian rules in a narrower sense, that is to say, those rules which specifically protect the human person, rather than the general rules concerning means and methods of waging warfare. The majority of these humanitarian rules apply to both international

Violations of the laws of armed conflict involve state responsibility (discussed in Chapter 9) and the duty to make reparation. Yet as the International Military Tribunal at Nuremberg stated:

As was stated in Chapter 1, the present system of international law has developed from the law of nations that governed the relations between sovereign states. Prior to World War One it was a clear principle of international

International human rights law is a combination of customary international law and treaty law. The treaties may be global or regional and general or specialised. At the inaugural conference of the United Nations held in San Francisco in April

16.2.3.1 European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 The first regional agreement pertaining to the protection of human rights was the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR), which was signed by the member states of the Council

A number of other regional organisations have adopted conventions relating to human rights: The American Declaration of the Rights and Duties of Man of 1948, which was closely modelled on UDHR, was followed by the Protocol to the Charter of the Organisation of American States 1967, which established the Inter-American Commission on Human Rights as a principal organ of the OAS A significant number of the provisions contained in the various human rights treaties are now considered to be rules of customary international law. In particular, many of the provisions of UDHR, which as a UN resolution is not binding per se, have come to be regarded as expressing customary rules. An important case in this respect is Filartiga v Pena-Irala (1980), which was heard by

It has already been indicated that international law distinguishes between civil and political rights and economic, social and cultural rights. The former are often referred to as ‘first generation’ rights and the latter as ‘second generation’ rights. According to the classical justification of human rights, which argued that such rights as existed were inherent in the existence of a human being, any

Although the principle of self-determination has long been recognised as a political concept, it has only assumed the status of a legal right since 1945. It remains controversial because it is not always easy clearly to identify who possesses the right or what implementation of the right entails. The UN Charter refers to the principle of ‘equal rights and self-determination of peoples’ in

Both ICPR and ICESCR establish enforcement machinery, although neither has proved to be extremely effective. Under Article 40 of the ICPR, every State Party is bound to submit periodic reports to a Human Rights Committee, which is established under Part VI of the Covenant. The Committee is made up of 18 members elected by the parties. Reports should indicate measures that have

As has already been stated, ECHR was the first human rights treaty to provide mechanisms for enforcement, and to some extent it has served as a model for other regional agreements. In recent years, the system established under ECHR has been subject to considerable criticism, much of it related to the cost and time involved in bringing cases to conclusion. The Council of Europe has been

International economic law has tended to be marginalised in general works in English on public international law. Clearly, any discussion of the law of the sea will need to consider the economic aspects of the management of the sea’s

Perhaps more than is the case with other areas of international law, the definition of what should be included in the study of international economic law is itself problematic. It is heavily influenced by the role that is perceived for international law and, in a wider context, the role of states themselves:

The emergence at the end of World War Two of the USA as the world’s most economically powerful state had the consequence that there was enormous pressure on international law to adopt and reflect principles of capitalist economics. Since USA economists stressed the need for a free market at home it is not surprising that free trade should become the guiding principle for the

Article III GATT requires states to treat imported goods in the same way as domestically produced goods. Specifically, imported goods cannot be regulated or taxed in a manner different from that applying to domestic products. Article III(4) provides that:

Just as dumping may distort international trade, so too can subsidies granted to exports since they too can make a product less expensive in the importing country which is likely to be to the detriment of foreign competitors. Export subsidies may take the form of export credit guarantees, favourable tax rates for income earned from export trade, or foreign exchange risk guarantees. Article At the end of World War Two the international community was faced with two major problems relating to international finance. An immediate problem concerned the need to finance the rebuilding of domestic economies devastated by six years of war. It was also recognised that there was a need to provide some system of regulation of currency exchange to help prevent the violent

Traditionally states wishing to raise capital by resorting to the private financial markets or by borrowing from other states. As far as the private markets were concerned investors did not always see an adequate rate of return and also ran the risk that such investment might be wiped out by nationalisation or other measures adopted by the borrowing state. Borrowing from other states often led

Reference has already been made to the Trail Smelter Arbitration in which the tribunal made it clear that states are under a duty not to use or permit the use of their territory in such a manner as to cause injury in or to the territory of another state. Similarly in the Corfu Channel case the International Court made reference to ‘every state’s obligation not to allow knowingly its territory to be

An increasingly common provision in international conventions on the environment requires states to co-operate with other states likely to suffer environmental risks from proposed activities. In the Lac Lanoux Arbitration Spain complained that France had violated a treaty by diverting a river which flowed through the territory of both states. Although the tribunal found no Although the Trail Smelter Arbitration illustrates that the discharge of toxic or other harmful substances in such a way as to cause harm on or to neighbouring

In 1956 the International Atomic Energy Agency (IAEA) was established with the objective of encouraging the use of nuclear power. The Stockholm Conference 1972 indicated particular concern about nuclear waste and the dumping of radio-active waste at sea was outlawed by the London Dumping Convention 1972. Gradually too, the IAEA was given strongly enhanced powers Control of pollution is only one aspect of international environmental law. Principle 2 of the Stockholm Declaration proclaimed that the natural resources of the earth should be safeguarded for the benefit of present and future generations. The principle marks a shift away from ideas of absolute sovereignty over natural resources and has been followed by a number of

As was discussed in Chapter 1, traditionally international law was only concerned with the rights and obligations of states. It has already been seen in Chapter 16 that significant changes occurred with the establishment of rules governing human rights. Arguments have since been raised about the existence of people’s rights additional to and different from the rights of individual

With the admission of Palau, there are now 185 member states of the United Nations. The member states and the dates on which they joined the Organisation are listed below: Member – (date of admission)

Permanent members China France Russian Federation United Kingdom