(State University Established by Act No. 43 of 1997) M.G.R. Main Road, Perungudi, Chennai - 600 096. PUBLIC INTERNATIONAL LAW LL.B. (Hons.) Degree Course SECOND YEAR - 3rd SEMESTER STUDY MATERIAL By Dr. D. BHUVANESWARI Assistant Professor (SG) School of Excellence in Law The Tamil Nadu Dr. Ambedkar Law University Chennai - 600 096.MESSAGE Knowledge is power. Legal Knowledge is a potential power. It can be exercised effectively everywhere. Of all the domains of reality, it is Legal Knowledge, which deals with rights and liabilities, commissions and omissions, etc., empower the holder of such knowledge to have prominence over the rest. Law Schools and Law Colleges that offer Legal Education vary in their stature on the basis of their ability in imparting the quality Legal Education to the students. Of all the Law Schools and Colleges, only those that educate their students to understand the nuances of law effectively and to facilitate them to think originally, excel. School of Excellence in Law aims to be in top of such institutions. The revolution in Information and Communication Technology dump lot of information in the virtual world. Some of the information are mischievous and dangerous. Some others are spoiling the young minds and eating away their time. Students are in puzzle and in dilemma to find out the right information and data. They do not know how to select the right from the wrong, so as to understand, internalise and assimilate into knowledge. Hence in the present scenario, the role of teachers gains much more importance in guiding the students to select the reliable, valid, relevant and suitable information from the most complicated, perplexed and unreliable data. The teachers of the School of Excellence in Law have made a maiden attempt select, compile and present a comprehensive course material to guide the students in various subjects of law. The students can use such materials as guidance and travel further in their pursuit of legal knowledge. Guidance cannot be a complete source of information. It is a source that facilitates the students to search further source of information and enrich their knowledge. Read the materials, refer relevant text books and case laws and widen the knowledge. Dr. P. Vanangamudi Vice-ChancellorPREFACE Public international law is a law that regulates the relation between states. The syllabus for the subject is designed in such a way to facilitate the students to understand the nature and scope of international law and its increasing importance in the present day International relations. This course material on ‘International law’ is equipped solely with the principal aim of providing a comprehensive account of contemporary issues in the international arena prevailing in the relations between States. It is quiet undisputable fact that international law is one of the subjects of contemporary relevance. In anera of scientific and technological revolution the law has to keep its pace ahead and the subject of international law is not an exception to that. With the increasing complexity in the state practice and the fast phase with which the relations of states are affected by new developments within the international community and subsequent effects on the interpretation of the legal rules requires serious consideration by international law. The subject covers an exhaustive area of study that starts from exercise of sovereignty over land to regulation of outer space. From earth to satellite mankind requires to be regulated for which international law playsa vital role thereby the international community lives in peace. This material gives an exclusive review of subjects of general relevance of international law from students’ perspective. The study is comprehensive but not an exhaustive one as the study of international law requires an oceanic swot. ‘At the outset this material provides an insight into what is international law and the key topics dealt under it. Apart from this material guidance there are numerous books and articles from international journals that are relevant to the subject. I wish to extend the tribute of bringing this Public international law course material to The TamilNadu Dr. Ambedkar Law University, Chennai. Dr. D. BHUVANESWARI Assistant Professor (SG) School of Excellence in Law The Tamil Nadu Dr. Ambedkar Law University Chennai - 600 096.PUBLIC INTERNATIONAL LAW HDSC COURSE OUTLINE UNIT -1 International Law Definition, Basis and Nature ~ Codification ~ International Law Commission - Sources of International Law ~ Relationship between International Law and Municipal Law — Theories and State Practice. UNIT-II State and Individual as a subject - Rights and Duties / Responsibilities - State Recognition - Theories ~ Kinds and Legal Effects — Nationality Acquisition and Loss related issues- Extradition-Asylum- Territorial Sovereignty - Modes of Acquisition and Loss of Territory- State Jurisdiction - State Succession and liability. UNIT-III Law of the Sea ~ Air and Space Law: Diplomatic Law- Agents Consular’s, Immunities and Privileges- Refugee Law UNIT-IV Concept -Definition of International Treaties ~ Formation of Treaties and its stages — Reservation, Observance of Treaties, Interpretation of Treaties ~ Suspension and Termination of Treaties. UNIT-V Origin, Nature & scope of International Organisations -League of Nations, United Nations and its Organs = International Tribunals. Books Prescribed Starke — International Law S.K.Kapoor - International Law K.K. Bhattachary ~ International Law Agarwal — International Law Malcom N Shah - An Introduction to International Law Books for Reference Oppenheim - International Law Brierly — International Law ‘Schwarzenberger — International Law RP. Anand -Salient Documents in International Law “Antonio Cassese - International Law Ian Brownlie - International Law RP. Anand - New States in International Law DJ. Haris Cases Materials on International Law ‘Andreas Zimmermann - Commentary on the Statute of IC}10. 11. 12. INTE] L LA’ PENDII LIST_OF TOPICS INTRODUCTION TO INTERNATIONAL LAW SOURCES OF INTERNATIONAL LAW RELATIONSHIP BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW SUBJECTS OF INTERNATIONAL LAW STATE RESPONSIBILITY NATIONALITY LAW OF EXTRADITION ASYLUM IN INTERNATIONAL LAW ACQUISITION AND LOSS OF STATE TERRITORY IN INTERNATIONAL LAW STATE JURISDICTION STATE SUCCESSION LAW OF THE SEAS AIR LAW OUTER SPACE LAW OF DIPLOMACY REFUGESS LAW OF TREATIES INTERNATIONAL TRIBUNALSCONTENTS 1, | UNIT-1I | 1 2. | UNIT - II 30 3. | UNIT - III 63 4. | UNIT - IV | 84 5. | UNIT-V 97UNIT -I INTRODUCTION TO INTERNATIONAL LAW Inthe long march of mankind, a central role has always been played by the law. The basis behind the law is that peace and order is necessary and chaos is crucial to ajust and stable existence. Law is that element which binds the members of the community together in their adherence to recognized values and standards. Law is both permissive and coercive in allowing individuals to establish their own legal relations with rights and duties in the former and as it punish those who infringe its regulations. Law is especially a set of rules which regulates behavior and respects the ideas and preoccupations of the society within which it functions. International law differs only in the sense that it regulates relations among nation states and municipal law regulates relation between individuals. The question “Whether international law is 2 true law or not?” should be considered as outdated. International law since the middle of the last century has been developing in many directions as the perplexities of life in the modern era have multiplied. A municipal law should be based on certain specific set of values ~ social, economic and political and these values form the base for legal framework which order the life in that environment. Similarly international law is a product of its environment. It has developed in accordance with the realities of the age. Change is the only rule which is unchangeable. There is a continuing tension between those rules already established andathe constantly evolving forces that seek changes within the system. One of the ‘major problems of international law isto determine when and how to incorporate new standards of behavior and new realities of life into the already existing framework so that on the one hand, the law remains relevant and on the other, the system is not disrupted. ‘The scope of international law today is immense. From the regulations of space expeditionsto the question of the division of the ocean floor, and from the protection of human rights to the management of international financial system its involvement has spread out from the primary concern of maintenance of peace and security to all the interests of contemporary international life. ‘The advent of nuclear arms created a status quo in Europe and a balance of terror throughout the ‘world. The rise of international terrorism has posited new challenges to the system as tates and international organizations struggle to deal with this phenomenon while retaining respect for the sovereignty of States and for human rights. International law respects first and foremost the basic State oriented character of world politics, units of formal independence benefitting from equal sovereignty in law and equal possession of the basic attributes of statehood have succeeded in creating a system enshrining such values. Ilustrations could be noted which include non intervention in internal affairs, territorial integrity, non-use of force and equality of voting in the UN General Assembly. But many factors cut across State borders and create a tension in world politics, such as inadequate economic relationships, and international concern for human rights. Law mirrors the concern of forces within states and between states. International law has expanded horizontally to embrace the new States which have been established recently, it has extended itself to include individuals, groups and international organizations within its scope. It has also moved into new fields covering such issues as international terrorism, problems of environmental protection and mutual legal assistance in commercial and criminal matters. "Malcom N Shaw, International law, 5 edition, 2008.The 19* century's theory of positivism had the effect of focusing the concerns of international law upon the sovereign States. States alone were considered to be subjects of international law and should be contrasted with the status of non-independent states and individuals as objects of international law. Sothe restrictions upon the independence of the State could not be presumed? But the gradual sophistication of the positivist doctrine, combined with the advent of new approaches to the whole system of international relations, has broken down this exclusive emphasis and extended the roles played by non-state entities such as individuals, multinational firms and international institutions. ‘Together with the evolution of individual human rights, the rise of international organizations ‘marks perhaps the key distinguishing feature of modern international law. The range of topics covered by international law has expanded hand in hand with the upsurge in difficulties faced and the proliferation in the number of participants within the system. Today international law is no longer exclusively concerned with issues relating to the territory or jurisdiction of States narrowly understood, but is beginning to take into account the specialized problems of contemporary society. Many of these have already been referred. Sothe focus of the present study or course material isthe brief coverage of subjects that international law isconcerned with. E_AND NATURE OF INTERNATION, w ‘The law of Nations sit is understood firmly lies in the development of western culture and political organization. Sovereignty a European notion and the independent Nation State concept required a commonly accepted standards of behaviour among the states to conduct inter State relations. International law filled the gap. If we trace the early origins of international law it dates back to 1000 of years ago. In 2100 BC a treaty was signed between the rulers of Lagash and Uma in the area called Mesopatomia as historians call to be city states. The next important treaty signed between Ramese II of Egypt and the King of Hittities was more inclusive of different points covered under the agreement that is concerned not only the establishment of eternal peace and brotherhood but also respect for each other's territorial integrity, the termination of a State of aggression and the setting up of a form of defensive alliance. Since then several agreements entered between the rival Middle Eastern powers. Ancient Israel contributed a Universal ethical stance coupled with rules of warfare and_a fair system of law based on morality guided the subsequent generations. The classical era of Greece about sixth century BC has contributed for a rational and critical thought of mind, and its constant questioning, argument and debate about man and nature spread Europe along with Hellenic culture that penetrated western consciousness which lead to the birth of Renaissance. The City States of Greeks were linked together in a network of commercial and political associations through several treaties, Rights granted to the citizens of the State in each other's territories and the rules related to diplomatic envoys were developed. The Romans gave profound respect for organization and law. Jus civille was applied among Roman citizens. As it was found to be insufficient to provide a background for expanding and developing nation it resulted in the augmentation of Jus gentium (law of Universal application). The middle ages were characterized by the struggle between religious authorities and rulers of Roman Empire and as Europe were of one religion ecclesiastical law applied to all. But secularism proved its victory shortly. Nevertheless commercial and maritime law developed as English law established Law Merchant, commercial rule of universal application. Mercantile courts were set up throughout Europe to settle disputes. This paved the way for the constitution of embryonic international trade law. Since trade developed among the States maritime law also kept its pace of development. %SS.Lorus Case, PCI, Series A, No.10. p.18.The rise of nation state of England, France and spain has developed territorially consolidated units and the need was felt that interaction between these sovereign entities must be regulated. The state’s pursuit of political power and supremacy realized and recognized ( Machiavelli's The Prince- 1513) which formed the basis for the evolution of the concept of an international community of separate, sovereign states that marks the beginning of what is understood by international law. Similarly the struggle by the city states of Italy for supremacy has resulted in the mean course for the development of many concepts of international law like diplomacy, Statesmanship, balance of power and community of States. The doctrine of sovereignty emerged with the rise of modern state and emancipation of international relations. Systematic analysis of the concept was done by Jean Bodin in 1576 (six livers de la Republique) who emphasized the necessity for the existence of sovereign to make laws. This idea of sovereign as supreme legislator mooted the principle of state supremacy in international relations. I R_ INTERNATION, Basically two theories constitute the basis of obligation under International law i.e., Naturalism: and Positivism, Natural law, one of the most influential Greek concepts was taken up by Romans which ‘was formulated by the Stoic philosophers of third century BC. These rules were rational, logical and rules of universal relevance because they were rooted in human intelligence which could not be restricted to particular group or individual but were of worldwide relevance. Natural law is considered to be vital for the proper understanding of international law as this theory is considered to be the precursor for today’s human rights law. Jus gentium of Roman law has incorporated Greek ideas of Natural law in order to enshrine rational principles common toall civilized nations. The early theories of international law have inculcated natural law principles as basis for international law. St Thomas Acquinas (13 century) merged Christian and natural law ideas and he maintained natural law formed part of law of God and rational creatures’ participation in eternal law. Reason was the essence of man and must be involved in the ordering of life according to divine will. With this sophisticated intellectual background the scholars of the Renaissance period approached the question. of the basis and justification of international law. The new approach to modern international law could be traced from the writings Spanish philosophers of 16 century like Franscisco Vitoria, Suarez, Alberico Gentilli (De Jure Belli- a comprehensive discussion of the law of war and a section of law of treaties). Hugo Grotius (father of International law) considered tobe supreme Renaissance man and his extensive work De Jure Belli ac pacis (1623-24) is considered to be remarkable. POSITIVISM AND NATURALISM ‘Naturalism expounded by Pufendorf identified international law with law of nature and regarded natural law as moralistic system. Other naturalists also ignored actual practices of the States and made a theoretical construction of absolute values. The theorists who adhere to this theory are of the view that international law is part of the law of nature. States adhere international law because their relations were regulated by higher law i.e, the law of nature. Law of nature was connected once with religion. 16* and 17% centuries has secularized the concept of law of nature especially Grotius expounded the secularized concept of the law of nature and it was explained as the dictate of the right reason. Vattel alsoa natural law theory supporter expressed that natural law was the basis of international law. The other naturalists are Pufendarf, Christian Thomasius. So natural law is based upon “what ought to be”. Positivism is based on law Positivum which is opposed to what ought to be i.e., what it is?. The positivists base their theory on actual practices of the States. Positivists regard treaties and customsare the main sources of International law. Bynker-Shoek as one of the exponents of the positivist school, views in the ultimate analysis as Will of the States is the main source of international law. According to Brierly 3positivism in International law is nothing but the sum of the rules by which they have consented to be bound. Anzillotti one of the chief exponents of the positivist school explains that the binding force of International law is founded on a supreme principle or norm known as Pacta Sunt Servanda i.e, agreements between the states must be respected and followed in good faith. DEFINITION OF INTERNATIONAL LAW ‘The birth of International law can be traced back to ancient times. Jeremy Bentham has coined the word ‘International law’ in 1780 that means the body of rules which regulate the relations among the States. Black's Law Dictionary defines law as, that “which is laid down, ordained, or established,”’and the international law is, “which regulates the intercourse of nations; the law of nations.” As per Oppenheim, “International law is the body of rules which are legally binding on states in their intercourse with each other.”* Lord Coleridge, CJ, defined, “International law as the law of nations is that collection of usages which civilized states have agreed to observe in their dealings with one another.” Oppenheim defines ‘Law of nations or International law is the name for the body of customary and conventional rules which are considered legally binding by civilized states in their intercourse with each other’. There are some other definitions by J.L.Brierly and Hackworth that says International law consists of a body of rules ‘governing the relations between the States. In Queen V Keyn, Lord Coleridge defines International law ‘as the collection of usages which civilized nations agreed to observe in their dealings with one another’ (also refer to West Rand Central Gold Mining Company V R, & S.S.Lotus Case. ) However the definition of International law by Starke is considered to be appropriate for the simple reason that the definition is comprehensive and exhaustive as it reflects the present position of International law. J.G Starke defines “International law as that body of law which is composed for the greater part of the principles and rules of conduct which states feel themselves bound to observe and therefore do commonly observe in their relations with each other and which includes also (a) the rules of law relating to the functioning of international institutions or organizations, their relations with each other and their relations with states and individuals and (b)certain rules of law relating to individuals and non state entities so far as the rights or duties of such individuals and non state entities, are the concern of the international community. > See, Black's Law Dictionary, 700. « See, Black's Law Dictionary, 649. + See, Oppenheim's International Iaw, Ninth Edition, vol. 1, PEACE, (ed. Sir Roberts Jennings and Sir Arthur Watts) (Pearson Education, Universal Law Publishing Company, 1996). +See, Queen v. Keya (1876).SOURCES OF INTERNATIONAL LAW CONTENTS Introduction Treaty as.a Source of International Law Relevance Law making treaties and treaty contracts Evidence of international custom State Practice Opinion juries Jus Cogens 10. General Principles of International Law 11. Judicial Decisions and Scholarly Works as a Source of International Law 12. Residuary Sources of International Law 1 2 3. 4. 5. Custom asa Source of International Law 6. 7. 8. 9. 13. Hierarchy of Sources INTRODUCTION The ‘sources of international law’ are those rules and principles based on which International Law is discovered or created, evolves and develops into binding law amongst the sovereign states. Unlike the domestic legal system where the sources of law can be ascertained with a greater degree of certainty, the sources of international law involves tricky question as there is no hierarchical character ofa legal order with gradation ofauthority to make law as it governs the conduct of sovereign states as such.” The question of sourcesis primal in any system of law as law making is a continuous processin any viable legal system. Herbert Briggs pointing the confusion of the term “sources” describes itas “the methods or procedures bby which international law is created.”" 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. judicial practice and doctrines.”” Oppenheim contends that there is a difference 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."® Long before the establishment of UN and IC], 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 Locamo 1925, to name few. After establishment of UN in 1945, T See, Malcolm N. Shaw, International Law, Sith Edition, Cambridge University Pres, pp. 69-70. 4 See, Herbert Briggs, The Law of Nations, 2nd ed, (New York, 1952), p. 44 "See, George Schwarzenberger, International Law, p. 26-27. See, Si Robert Jennings, Sic Warts Arthur, Oppenhein's International Law, (Indian Branch: Peerson Education, 1996), 23. (Cited by: Shaguftr Omar, Sources of International law In the light ofthe Anicle 38 ofthe International Court of Justice) available at: hep/ssr.com/ abseract=1877123). 5treaty acquired the most important mode of development of international law, starting from Bill of Rights and various sectoral instruments under the United Nations Treaty Series many thousand treaties have been registered with the United Nations. Itis important to note that Art. 38 of the IC] is generally regarded asan authoritative statement of the sources of international law, though it does not mean to provide an exhaustive list of the sources of international law. These provisions are in fact, expressed in terms of the function of the Court. The first three sources listed ie. treaties, custom, and principles of law, are sometimes referred toas “primary sources”, whereas the last two, judicial decisions and the teachings of publicists are referred tos “subsidiary” or “secondary sources” or evidence of international law rules. It shall not prejudice the Court’s power to decide a case ‘ex aequo et bond if the parties agree.” TREAT’ : The first though not the foremost source of international law is international treaties as laid down in Art. 38 of the IC Statute. A 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.” Conventions, International Agreements, Pacts, General Acts, Charters, Concordants, Declarations and Covenants are some of the various designations of treaty. The various titles assigned to these international instruments does not have any overriding legal effects. Both the 1969 Vienna Convention and the 1986 Vienna Convention" do not distinguish between the different designations of these instruments. Instead, their rules apply toall of those instrumentsas long as they meet certain common requirements. Treaties, in contrast to custom constitute a more formal and conscious source of law. Treaties are expected to follow the precepts of the Vienna Convention on the Law of Treaties" which serves as the basis for the purpose of interpretation of treaties, whereas the contours of custom remain vague; the frequent repetition of certain practices may indicate the existence of a customary rule. Treaty law is “made” by negotiators and their governments; customary law “emerges” in the daily practice, in legal opinions, writings of eminent scholars, etc., Similarly in cases brought before the World Court, one or several treaties will be invoked by the contesting States, their relevance or non relevance giving rise to differences between the parties, which the Court must solve in order to decide the dispute. V, A IN: Ww: The United Nations Charter lays down its determination “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.” Thus a treaty is an important source of international law creating legal obligations on the parties to the same and they are bound to adhere and respect their treaty obligations. Consent toa treaty may be expressed by signature, ratification, or accession, and is binding on the parties toit. The principle that treaties are binding on the parties and have to be followed in good faith is derived from a rule of customary international law called as jpacta sunt servanda'!* Treaties could bea direct source of international law or reflective of a customary or general principles of law as evidence. ‘See, Strate of the Inernational Court of Justice, Art. 380) "See, The Vienna Convention on the Law of Treaties, 1969, Art. 2. "Vienna Convention of the Law of Treaties between States and International Organisations or berween International Organisations. 1986. ‘The 1969 Vienna Convention has 114 parties (as of November 2014), This treaty is binding only among.is parties and iti wot a treaty with global pericipatin, yet it is widely acknowledged that many ofits provisions have codified existing customary international law. The customary ‘even on non-paries to the Convention, 5. 1968, Art. 26Permanent Court of International Justice in the Wimbledon case, inferred from Art. 380 to 386 ofthe Treaty of Versaillesas well as Art. 2and Art. 7 Hague Convention of 1907 in coming toa conclusion that a state remains neutral even though it allows passage through an international waterway of ships carrying munitions to belligerents.” In the Nottebohm case, the PCI] has referred to the Bancroft Treaties and the Pan- American Convention of 1907 to which neither of the parties to the dispute were signatories in rendering its decision. The practise of citing treaties for substantiating the claim of a party in dispute though these treaties were not signed by them was widely prevalent.”” A case in point would be the development of Air and Space Law where customary international law plays very limited role due to the meteoric rise and growth of the subject within a short duration. Here treaties have given rise to the international rule of sovereignty over the superjacent airspace. International law has made several inroads in the maxim ‘acta tertiis nec nocent nec prosunt’in the sense that itis said that when a rule is repeated in a large number of treaties the rule passes into customary law, or that when an important multilateral convention has been in existence for some time, its provisions become absorbed into customary international law. LAW. TREATIES AND TREAT’ Treaties are express agreements and are a form of substitute legislation undertaken by states. They bear a close resemblance to contracts in a superficial sense in that the parties create binding obligations for themselves, but they havea nature of their own which reflects the character of the international system.” Treaties require the express consent of the contracting parties and so they are considered to comprise of the most important sources of international law in the views of certain scholars. Treaties in this regard are viewed as superior to custom, which involves an agreement in tacit form. Treaties may be divided into ‘law-making’ treaties, which are intended to have universal or general relevance, and ‘treaty-contracts’, which apply only as between two or a small number of states. Law-making treaties are those treaties which are of a norm creating Character and are also called as ‘normative treaties’ "A Law-making treaty refers to those agreements whereby states augment their understanding of international law upon any specific topic or establish new rules which are to guide them for the future in their international conduct. Such law making treaties necessarily, require the participation of a large number of states to emphasize this effect, and may produce rules that will bind all. They include human rights treaties, boundary treaties and certain other instruments based on universal substantive legal principles such as the genocide convention and the UN Charter. “Treaty-contracts’ on the other hand are not law-making instruments in themselves since they are between only small numbers of states and on a limited topic, but may provide evidence of customary rules. The term ‘treaty contract’ refers to those treaties which resemble a contract treaty such as one in which a state agrees to lend money to another state are not sources of law, but merely legal transactions.” They create rights and obligations purely as regards the parties concerned and have not much of political and legal significance. States, international organizations, and the other internationally recognized entities alone can conclude treaties under international law. In the North Sea Continental Shelf case”, the IC} held that there was no obligation on the part of West Germany with respect to provision in the Convention. on Continental Shelf, 1958 which had not been ratified by it and the same had not entered customary See, SS Wimbledon Case, 1923 PCL. (ser A) No " See, Lieehtenstein v. Guatemala 1955 IC} 1 "See, The Asylum Case (Colombia v. Peru) 1950 ICY 6. In the instant case, Colombia cited different Extraditios treaties not signed by neither pany to suppom their argument. rejected by the Coun as nat pertinent to the question of diplomatic immunity which was the matter in dispte, 2 The term ‘normative treaty” was used by the ILC in ite study ofthe topic “The law and practice relating to reservation to treaties” (eg. Report of the Intemational Law Commission Fifty-stth session, 2004), GAOR Supplement No. 10 (UN Doc. 4/59/10), p. 290). See, Michael Akehurst, Modem Introduction to Iateraatioal Law, Routledge, p. 39. See, Germany v, Denmark and Netherlands, (1969) ICH 1. 1international law status. The Court further ruled that, even non-parties are bound by treaties reflecting customary law not because it isa treaty provision but because it reaffirms a rule or rules of customary international law.* CUSTOM AS A SOURCE OF LAW ‘The second source of international law listed in Art. 38 (1) of the Statute of the International Court of Justice is ‘international custom, as evidence of a general practice accepted as law’. It is placed on the same footing as international conventions as a primary source of international law. A custom generally refers to an established pattern of behavior that can be objectively verified within a particular social setting ice, “what has always been done and accepted by law.” [.L. Brierly describes it as follows: “Custom in its legal sense means something more than mere habit or usage; it is a usage felt by those who follow it to be an obligatory one. There must be present a feeling that, ifthe usage is departed from, some form of sanction probably, or at any rate ought to, fall on the transgressor.” Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation. * International custom is described by Hans Kelsen as “unconscious and unintentional lawmaking”. It does not arise from a deliberate legislative process, but rather as a collateral effect of the conduct of States in their international relations.” Thus international custom refers to those legal obligations which are recognized, applied and complied by states in the international arena though they are not explicitly codified by treaty law. ‘As confirmed by the IC} in the Nicaragua case*, custom is constituted by two elements, the objective one of ‘a general practice’, and the subjective one ‘accepted as law’, the so-called opiaio juris, In the Continental Shelf casé®, the Court stated that the substance of customary international law must be ‘looked for primarily in the actual practice and opinio juris of States’. A new rule of customary international law cannot be created unless both of these elements are present. Thusit is evident customary international law emerges from patterns of behavior among states. These behavior patterns are called state practice and along with a corresponding belief that this practice is based on a legal obligation or opinio juris, they are considered as customary international law. Customary international law plays a pivotal role in international law as it creates binding legal obligations on all states on certain universal legal concepts of international law which attain the status of international custom. The legal standing of many of the most important humanitarian principles, including principles of human rights and humanitarian protections in war, may depend heavily on their status as international custom. And this, in tum, is especially important because principles of customary international law in many countries is treated as law of the law without explicit act of legislation and in some countries it is capable of overriding contrary domestic law. With respect to customary international law, states are bound in the same manner as treaty law. But the primary difference is that, with respect to international conventions asa general rule only consenting parties are bound while in the case of customary international law all nation states are bound by legal obligations arising out of it. STATE PRACTICE: THE OBJECTIVE ELEMENT OF INTERNATIONAL CUSTOM The scholars have classified the requirements in what is referred to as the two-element theory, by which fora customary rule o tise, two elements must be present: on the one hand, there must bea significant State practice, and, on the other hand, the practice must follow from opinio juris, i. the belief that such practice reflects international law. Firstly, let us deal with the objective or material element of customary international law; State practice, also referred to as “constant and uniform usage” in the Asylum case. Se, Malcolm N_ Shaw, Ineratona Law, Soth Eaton, Cambridge University Pres, p95 > Se, Bey The Law of Neon: An introduction tothe International Law of Peace, Oxford University Pres, 1963, p. 59 %S0 Resmcemene» che Lae. Tard, Foreign Relations Law of the Unied Stats, St. Pol, Minn: American Law laste Publisher, 1987, > Se, Anton Cassese, fneratonl Lav, Oxford University Prep. 156 2 SS Ne upatic of enaguav- United Sate of America ~ Cae Concerning the Milrary and Paramiltary Activities in and against Nicaragua 1906) IC) » Ser Liye ¥ Maka Case concerning th Continental Sal (1985) 16} 13. 8‘While assessing State practice, two distinct matters need to be addressed, viz, the selection of practice that contributing to the creation of customary international law and the assessment of whether this practice establishes a rule of customary international law. It is widely accepted that the reiterated conduct of States fulfills the objective element for the formation of customary norms.® The practice of the executive, legislative and judicial organs of a State can contribute to the formation of customary international law. The State ‘comprises the executive, legislative and judicial branches of government. The organs of these branches can engage the international responsibility of the State and adopt positions that affect its international relations." The negotiation and adoption of resolutions by international organisations or conferences, together with the explanations of vote, are acts of the States involved. The greater the support for the resolution, the more importance it is to be accorded. Likewise, statements made by States during debates on the drafting of resolutions constitute State practice and have been included where relevant? International Organizations have international legal personality and can participate in international relations in their own capacity, independently of their member States. In this respect, their practice can contribute to the formation of customary international law. To establish a rule of customary international law, State practice has to be virtually uniform, extensive and representative. Although some time will normally elapse before there is sufficient practice to satisfy these criteria, no precise amount of time is required. As stated by the International Court of Justice in the Norch Sea Continental Shelf case”: “the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of anew rule of customary international law on the basis of what was originally a purely conventional rule, an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked; and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved.” Different States must not have engaged in substantially different conduct, some doing one thing and some another. In the Asy/um case™, the International Court of Justice was presented with a situation in which practice was not sufficiently uniform to establish a rule of customary international law with respect to the exercise of diplomatic asylum. In this respect, it stated that: “The facts brought to the knowledge of the Court disclose so much uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of diplomatic asylum and in the official views expressed on various occasions, there has been so much inconsistency in the rapid succession of conventions on asylum, ratified by some States and rejected by others, and the practice has been so much influenced by considerations of political expediency in the various cases, that it is not possible to discern in all this any constant and uniform usage, accepted as law.” However, the Court in the Fisheries case" held that “too much importance need not be attached toa few uncertainties or contradictions, real or apparent” in a State's practice when making an evaluation. It is enough that the practice is sufficiently similar. It was on this basis that the ICJ found in the Continental Shelf casesthat the concept of the exclusive economic zone had become part of customary law. Even though the various proclamations of such a zone were not identical, they were sufficiently similar for the Court to reach this conclusion. See, Mark Welsburd, The International Court of Justice and the Concept of Sate Practice. University of Pennsylvania Journal of International Law, Vol 31:2 (accessed from: hurpe//www law.upenn edu/journala/Varticles/volume3 /issue2/Wetsburd31U Pa int IL295(2008) pa) » See, Michael Akeburst, Modern Introduction to International Law, Routledge, p. «3. » See, Jean-Marie Henckaert and Louige Dorwald-Beck, Customary Taternaional Humanitarian Law, Volume I: Rules (accessed from: hirp// ‘wow jer orp/eng/sseufiles/ocher/customary-international-hurmanitarian-law-iicr-eng pa) » See, Germany ¥. Denmark and Netherlands, (1969) IC] 1 p. 43. > See, Colombia v. Peru, (1950) IC) Rep. 266. See, United Kingdom v Norway (1951) IC) 3.The IC] jurisprudence shows that contrary practice itself does not prevent the formation ofa rule of customary international law as long as this contrary practice is condemned by other States or denied by the government itself and therefore does not represent its official practice. Through such condemnation or denial, the original rule is actually confirmed. The International Court of justice dealt with such a situation in the Nicaragua case” in which it looked at the customary nature of the principles of non-use of force and non-intervention, stating that: “It is not to be expected that in the practice of States the application of the rules should have been perfect, in the sense that States should have refrained, with complete consistency, from the use of force or ‘from intervention in each other’ internal affairs. The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolute rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, jingeneral, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rile, Ifa State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State’s conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to. weaken the rule." Irdoes not need to be universal; a “general” practice suffices and no precise number or percentage of States is required.” In the words of the International Court of Justice in the North Sea Continental Shelf cases, the practice must “include that of States whose interests are specially affected”. The International Law Commission has similarly considered verbal acts of States as contributing towards the creation of customary international law. It did so, for example, in the context of the Draft Articles on State Responsibility where it considered the concept of a “state of necessity” to be customary.” The International Criminal Tribunal for the Former Yugoslavia has stated that in appraising the formation of customary rules of international humanitarian law, “reliance must primarily be placed on such elements as official pronouncements of States, military manuals and judicial decisions”. In the Lorus case®, the Permanent Court of International Justice rejected France's argument in favor of a rule restricting jurisdiction over negligent acts committed on board of a ship to the flag State, which it justified by citing the almost complete absence of prosecutions by States others than the flag State. The PCI} considered that such omission was not a clear evidence of custom, since the abstention from prosecution could be motivated by various reasons—not necessarily by the existence ofa customary norm. ‘The same approach was taken by the ICJin the Nuclear Weapons casewhen it dismissed the argument that there was a customary rule prohibiting the use of such weapons because States had refrained from using them since 1945. See, Gerald Postema, Customary International Law: A Normative Concept (accesed from: hapd/wrw law cam.ac.uk/microstes, Philosophical historical_and_legal_perspectives/documents/part_3/iV/4/GPostema.V1.doc.)) 2 '3ee, The Republic of Nicaragua v. United States of America = Case concerning the Miltary and Paramilitary Activities in and against [Nicaragua (1986) IC) 1. ™ See, Jan Wouters and Cedric Ryngaert, The Impact of Human Rights and International Humanitarian Law on the Process ofthe Formation of ‘Customary International Law, Insetute for International Law Working Paper No. 121 - February 2008 (accessed from: hurps// wow law kuleuven befi/nVonderzoek/wp'WP121e pal See, Ian Brownlie, Principles of Pubic International Law, 4th ed p. 8. « See, ILC, Draft Articles on State Responsibilry, Yearbook ofthe ILC, 1960, Vol. I, Part 2, UN Doc. A/CNA/SER.A/I980/AdA.1 (Part 2), 1980, pp. 34-52. © See, The Prosecutor v. Dusko Tadis, Case No, IT-94-AR72, Decision on the defence motion for interlocutory appeal on jurisdiction, 2 October 1995, p. 99. See, France v. Turkey, (1927) PCI] Series A no. 10. © See, IC) Advisory Opinion on Legality ofthe Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996 - General List No.9. 10TIV} TION, The other requirement for the existence of a rule of customary international law, opinio juris, relates to the need for the practice to be carried out as of right. Mendelson defines opinio juris sive necessicatisas “a belief in the legally permissible or obligatory nature of the conduct in question, or of its necessity’. ‘The particular form in which the practice and this legal conviction needs to be expressed may well differ depending on whether the rule involved contains prohibition, an obligation or merely a right to behave ina certain manner. The subjective or psychological aspect is known by the Latin expression opinio juris sive necessitatis, which literally translates as “opinion of law or necessity”, or simply opinio juris, Itis reflected in the text of Article 38 (1) (b), as it provides that, for custom to exist, a general practice must be accepted as law. It-continues to be the most debated and least comprehended facet of customary international law: ‘A good illustration would be the Lotus casein which France disputed Turkey's right to prosecute for a collision on the high seas. France argued that the absence of such prosecutions proved a prohibition under customary international law to prosecute, except by the flag State of the ship on board which the wrongful act took place. The Court disagreed because it was not clear whether other States had abstained from prosecuting because they thought they had no right to do so or because of some other reason, for example, lack of interest or belief that a court of the flag State is a more convenient forum. The Court stated there was no evidence of any consciousness of having a duty to abstain.“ The International Court of Justice in the North Sea Continental Shelf case dealt with another ambiguity in which Denmark and the Netherlands argued thata customary rule existed requiring a continental shelf to be delimited on the basis of the equidistance principle, inter alia, because a number of States had done so. The Court considered that the basis of the action of those States remained speculative and that no inference could be drawn that they believed to be applying a rule of customary international law. The States that had delimited their continental shelf on the basis of the equidistance principle had behaved in accordance with that principle but nothing showed that they considered themselves bound by it. The International Court of Justice held in this regard that: “Not only must the acts concerned amount toa 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 of law requiring it. The need for such a belief, ie, the existence of a subjective element, is implicie in the very notion of the opinio juris sive necessitatis."” The State must follow the practice because of a belief that they are bound by law to do so rather, than because of the demands of courtesy, reciprocity, comity, morality, or simple political expediency. Therefore, only when it is accompanied by such conviction it becomes opiinio juris. It becomes a sine qua nonto distinguish a rule of customary international law from a rule of international comity, which is based upon a consistent practice in inter-State relations, but without the “feeling of legal obligation”. ‘An example of a practice amounting to international comity, but not custom, is the saluting at sea bya ship of another ship flying a different flag. The ICJ has pointed this out in the North Sea Continental Shelf case judgment, establishing opinio juris as the main distinguishing feature between custom and comity or courtesy: “ See, Maurice Mendelson, The Formation of Customary International Law. Vol. 272, p. 269. © See, Jorg Kammerhofer, Uncertainty in the Formal Sources of International Law: Customary International Law and Some of Its Problems. European Journal of International Law, 2004: §23-553. See, France v. Turkey, (1927) PCI Series A no. 10 © See, Germany v. Denmark and Netherlands, (1969) IC} 1p. 76.“The frequency, or even habitual character of the acts is not in itself enough. There are many international acts, e.g. in the field of ceremonial and protocol, which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty."® Ian Brownlie argues that the International Court of Justice has taken two divergent approaches to opinio juris. Under the first approach, called no scrutiny, the court simply assumes opinio jurisexists if there is uniform state practice. Under the second approach, called strict scrutiny, the court demands positive evidence that opinio jurisexists. The stricter method was applied in three important cases: by the PCIJ in the Lotus case and by the ICJ in the North Sea Continental Shelf and Nicaragua cases. In these cases, a higher standard of proof was required, since the Court did not accept that a continuous practice was prima facie evidence of the belief in the existence of a legal obligation.” IUS COGENS: In international law, the term ‘jus cogens” (literally, “compelling law”) refers to norms that command peremptory authority, superseding conflicting treaties and custom. Jus cogens norms are considered peremptory in the sense that they are mandatory, do not admit derogation, and they can be modified only by general international norms of equivalent authority.» jus cogensrefers to the legal status that certain international crimes reach, and obligatio erga omnes pertains to the legal implications arising out of a certain crime’s characterization as jus cogens. In other words, the norm describes such a bare minimum of acceptable behavior that no Nation State may derogate from it. It is argued by some that the overwhelming application of the norm against executing juvenile offenders has rendered it a Jus cogensnorm. The treaties, pronouncements, and practices demonstrate that the prohibition has become as widespread and unquestionable as have the prohibitions against slavery, torture, and genocide. There are no contrary expressions of opinion by any country, nor by any agency charged with the enforcement and interpretation of the within-cited international accords. The emergence of Jus cogens can be traced to the late 60s and rests upon the idea that a certain category of law that derives from reason and humanity (natural law) should prevail over man-made law (consent-based law) *" The establishment for peremptory norms was a result of the initiatives of socialist. and developing countries. Art. 53 of the Vienna Convention on the Law of Treaties defines a peremptory norm which isa synonym to Jus cogensas “a norm accepted and recognized by the international community of states asa whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” Similarly, Art. 64 of the VLCT state that, “if anew peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.” GENERAL PRINCIPLES OF INTERNATIONAL LAW. General principles of law recognized by civilized nations are often cited as a third source of International law.? Article 38 of the ICJ Statute lists “general principles of law recognized by civilized nations” as one of the sources of applicable law in cases of disputes arising under International Law. These are general principles that apply in all major legal systems. An example is the principle that persons who ‘ See, Germany v. Denmark and Netherlands (1969) 1G} 1 p79. «© See, lan Browalie, Principles of Public International Law, th ed. p. 10 % See, Vienna Convention oa the Law of Treaties, AR. 53. » See, Evan. Criddle & Evan Fox Decent, A Frduciary Theory of Jus Cogens, The Yale Journal of International Law, Vol. 34:331 (Gecessed from: hetp/wverw yale-universty org/yilfiles_PDFo/vol34/Criddle_Fox-Decent-pd). See, Sarate of the IC), Art 38 (1) (). 12intentionally harm others should have to pay compensation or make reparation.** General principles of law are usually used when no treaty provision or clear rule of customary law exists. General Principles of law in the international domain were already recognized in the Hague Conferences of 1899 and 1907. To adequately comprehend what exactly is at stake in the debate on the true nature of the “general principles of law’, it is important to refer to the function that they are meant to serve. The general principles of law are primarily regarded as a mechanism to alleviate the problem of legal gaps. The main objective of inserting this paragraph in Article 38 is to fill in gaps in treaty and customary law and to meet the possibility of a non liquet.** ‘The rules of Pacta sunt servanda, that contracts must be kept*; the right of self defense”; for one's ‘own cause no one can bea judge; that the judge must hear both sides; and the principle of res judicata*are all considered to be general principles of international law. Perhaps 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 of Principles of International Law ‘Concerning Friendly Relations and Co-operation among States adopted by the General Assembly in resolution 2625 (XKV). ‘The ICJ in the Aegean Sea Continental Shelf case” said that the judges are to interpret the rules of international law as they are in the present and not at the time of the drafting. Thus, the use and functionality of General Principles is not to be assessed based on the fact that the motive for their inclusion ‘was the dislike for nonliquet so that it does not appear. The proliferation of legislation has in most parts eliminated this problem. However, General Principles are not excluded from finding a new position in the international law today. Another important general principle of international law is that of equity, which permits international law to have a degree of flexibility in its application and enforcement. The Law of the Sea treaty, for example, called for the delimitation on the basis of equity of exclusive economic zones and continental shelves between states with opposing or adjacent coasts. Inanumber of cases references to equity has been made asa set of principles constituting the values of the system. The decision of Judge Hudson in the Diversion of Water from the Meuse case" in 1937 regarding a dispute between Holland and Belgium is typical example. The Netherlands complained that Belgium by constructing a lock in Belgian territory had violated an agreement between the two States that they would both take water from the River Meuse only at acertain point. However, the Netherlands had also constructed and operated for a period of time a similar ‘unlawful’ lock in its own territory. Judge Hudson pointed out that what are regarded as principles of equity have long been treated as part of international law and applied by the courts. ‘Under article 38 of the Statute’, he declared, ‘if not independently of that article, the Court has some freedom to consider principles of equity as part of the international law which it must apply.’ However, one must be very cautious in interpreting this, although 5 See, Chorzow Factory Case, PCI, Series A, No. 17, 1928. 5 See, Robert Beckman and Dagmar Butte, An Introduction to International Law (accesed from: berp/wrw isa.or/ssup/ indawinro-pd). ‘The term non iquet means the possibilty that a court or tribunal could not decide a case because ofa gap’ i law. Remarkably, the IC} applied the doctrine of non liquet in the Nuclear Weapons case, Advisory Opinion, (1997) 38 ILM 809. Sec, Advisory Commitce of jurists, Procts-verbaux ofthe Proceedings of the Commiciee, June 16th - July 24th, 1920, with Annexes (1920) 33. 2 See, The Republic of Nears v. United Sates of America ~ Cave concerning the Miltary andl Paramaliary Activites in and against Nicaragua (1986) 1G. % See, The Corfa Channel Case (United Kingdom v. Albania; Assesment of Compensation, 15 XII 49. International Court of Justice (IC), LC Reports 1949, p. 244; General List No. 1, Application ofthe Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, CJ. Reports 2007, p. 43 1 See, Nuclear Test cave (Australia v France), IC] Rep. 1974, 268, para, 46; cited by Shaw, International Law, 104 “# See, Aegean Sea Continental Shelf case (Greece v. Turkey), Judgment, CJ. Reports 1978, p. 3 “See, (Netherlands v Belgium) [1937] PCI] (ser A/B) No 70, 4 {© Je as to be noted that this is an important case where the Permanent Cour of International Justice applied the doctrine of ‘lean hands’ in See, Michael Akeburst, Modern Introduction to International Law, Routledge, p. SI. 15Rl RY. Ww Resolutions of the UN General Assembly or resolutions adopted at major international conferences are only recommendations and are not legally binding. However, in some cases, although not specifically listed in article 38, they may be subsidiary means for determining custom. If the resolution purports to declare a set of legal principles governing a particular area, if it is worded in norm creating language, and if is adopted without any negative votes, it can be evidence of rules of custom, especially if States have in practice acted in compliance with its terms. The examples of such UNGA Resolutions which have been treated as strong evidence of rules of customary international law include the Universal Declaration of Human Rights” (1948), the Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Sovereignty” (1965), the Declaration of Principles of International Law ‘Concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United ‘Nations”* (1970). Some of these resolutions have also been treated as subsequent agreement or practice of States on how the principles and provisions of the UN Charter should be interpreted. ‘The Assembly has produced a number of highly important resolutions and declarations and they have definite impact upon the direction adopted by modern international law. The way states vote in the General Assembly and the explanations given upon such occasions constitute evidence of state practice and state understanding as to the law. Where a particular country has consistently voted in favour of, for example, the abolition of apartheid, it could not afterwards deny the existence of a usage condemning racial discrimination and it may even be that that usage is for that state converted into a binding custom. ‘The 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples”, which ‘was adopted with no opposition and only nine abstentions and followed a series of resolutions attacking colonialism and calling for the self-determination of the remaining colonies, has, it would seem, marked the transmutation of the concept of self-determination from a political and moral principle to a legal right and consequent obligation, particularly taken in conjunction with the 1970 Declaration on Principles of International Law. HIERARCHY OF SOURCES Article 38 of ICJis not an exhaustive statement for describing sources of international law as since its formulation in 1945, many changes in the international community have taken place. In theory there is no hierarchy among the three sources of aw listed in Article 38 ofthe IC] Statute. In practice, however, i lawyers usually look first to any applicable treaty rules, then to custom, and last to general principles. In the drafting history of this provision the proposal was made that the sources listed should be considered by the Court ‘in the undermentioned order’ (a-d). This proposal was not accepted and the view was expressed that the Court may, for example, draw on general principles before applying conventions and custom."? Judicial decisions and writings clearly have a subordinate function within the hierarchy in view of their description as subsidiary means of law determination in article 38(1) of the statute of the ICJ, while the role of general principles of law asa way of complementing custom and treaty law places that category fairly firmly in third place. The question of priority as between custom and treaty law is more complex. As a general rule, that which is later in time will have priority. Treaties are usually formulated to replace or codify existing custom, while treaties in turn may themselves fall out of use and be replaced by new customary rules." % See, Part A of UN General Assembly Resolution 217 III, UN Doc A/RES(3/217/, 10 Dec. 1948, 7 See, UN General Assembly Resolution 2131 (0X), UN Doc A/RES/20/2131, 21 Dec. 1965. See, UN General Assembly Resolution 2625 (QOKV), UN Doc A/RES/25/2635, 24 Oct. 1970. 7 See, UN General Assembly Resolution 1514 (XV), UN Doc A/RES/ISI4, 14 Dec. 1960. % See, Michael Akehurt, Modera Introduction wo International Law, Routledge, p. 56. ' See, Malcolm N. Shaw, International Law, Sith Edition, Cambridge Universey Press, p. 123. 16‘Article 38 makes no reference to such a hierarchy but itis possible to discern elements of ahierarchy in certain respects. The relationship between treaties and custom is particularly difficult. Clearly a treaty comes into force, overrides customary law as between the parties to the treaty; one of the main reasons why states make treaties is because they regard the relevant rules of customary law as inadequate. Thus, two of more states can derogate from customary law by concluding a treaty with different obligations, the only limit to their freedom of lawmaking being rules of jus cogens, which will be discussed below. But treaties can come toan end through desuetude—a term used to describe the situation in which the treaty is consistently ignored by one or more parties, with the acquiescence of the other party or parties. ‘There are two types of norms or rules not previously discussed which do have a higher status. First, peremptory norms or principles of jus cogensare norms that have been accepted and recognized by the international community of States as so fundamental and so important that no derogation is permitted from them." Second, members of the United Nations are bound by the Article 103 of the United Nations. Charter, which provides that in the event of a conflict between the obligations of members under the Charter - including obligations created by binding decisions of the Security Council - the Charter obligations prevail over conflicting obligations in all other international agreements. Desuetude often takes the form of the emergence of a new rule of customary law, conflicting with the treaty. Thus, treaties and custom are of equal authority; the later in time prevails. This conforms to the general maxim of Jex posterior derogat priori(a later law repeals an earlier law). However, in deciding possible conflicts between treaties and custom, twa other principles must be observed, namely Jex posterior ‘generalis non derogat priori speciali(a later law, general in nature, does not repeal an earlier law which is. more special in nature) and /ex specialis derogat legi generali (a special law prevails over a general law). Since the main function of general principles of law is to fill gaps in treaty law and customary law, it would appear that general principles of law are subordinate to treaties and custom. Judicial decisions and learned writings are described in Article 38(1)(d) as ‘subsidiary means for the determination of rules of law’, which suggests that they are subordinate to the other three sources listed: treaties, custom and general principles of law. Judicial decisions usually carry more weight than learned writings, but there is no hard and fast rule; much depends on the quality of the reasoning which the judge or writer employs. In sum, the different sources of international law are not arranged in a strict hierarchical order. Supplementing each other, in practice they are often applied side by side. But, if there is a clear conflict, treaties prevail over custom and custom prevails over general principles and the subsidiary sources. 1 See geimonterGreenwon,Ineraton aw: Induction acs om: hapa anny apeGremvond oie. Omar, Sources of Tnternatonal law In the light ofthe Article 38 of the International Court of Justice)available at: butpi/srm.com/, 17RELATIONSHIP BETWEEN INTERNATIONAL LA’ AND MUNICIPAL LAW CONTENTS 1. Introduction 2. Municipal Law 3. Monism Monism -1 Monism -II 4, Dualism 5. _ Difference between Monism and Dualism 6. Criticism of Monism and Dualism 7. Transformation Theory 8 Specific Adoption Theory 9. Delegation Theory 10, Relation between International Law and Municipal Law in U.S.A 11. Relation between International Law and Municipal Law in U.K 12, Emerging Trends INTRODUCTION ‘The relationship between International Law and Municipal Law has been the subject of debate for a very long time. The role of the states and their functions in the contemporary world is really complex. According to legal theory enumerated by Malcolm N Shaw, each state isa sovereign state and is equal. In reality, with the phenomenal growth in communications and consciousness, and with the constant reminder of global rivalries, not even the most powerful of states can be entirely sovereign. Interdependence and the close-knit character of contemporary International commercial and political society ensures that virtually any action ofa state could well have profound repercussions upon the system as a whole and the decisions under consideration by other states. Thus, the theory of Monism, Dualism, Incorporation and Transformation emerged to elucidate with varying degree of success of the subject matter under study ® International Law and Municipal Law have traditionally addressed relatively different issues. International Law i largely but not altogether concerned with relation among states; whereas Municipal Law controls relations between individuals within a state and between individuals and the state. ™% Malcolm N, Shaw QC, International Law, Fifth edition, Cambridge University Press, Page No. 120. © Duru, Onyekachi Wisdom Cesta, International Law Versus Municipal Law A Case Seudy Of Six Aftican Countries: Three Of Which Are Monist And Three Of Which Are Dualist, Electronic copy available at: herp:/srn.com/abetracts2142977 Duru, Onyekachi Wisdom Cezzar, International Law Versus Municipal Law: A Case Seudy Of Six African Countries; Three Of Which Are Monit ‘And Three Of Which Are Dualist, Electronic copy available at: hurp//ssm.com/abstract=2142977 18Also, they differ altogether in their judicial processes both are usually applied by National court, which results in complete decentralization of the judicial function in International Law and effective centralization in Municipal Law. What is true of the judicial function is also true of the executive function. As tort in Municipal Law, traditional International Law always depended for its enforcement upon the initiative of the injured party. Most Municipal Law, on the other hand, is enforced by a responsible executive unknown to International Law.” ‘According to Oppenheim, The Law of Nations and the Municipal Law of the single States are essentially different from each other. They differ, first, as regards their sources. Sources of Municipal Law are custom grown up within the boundaries of the respective State and statutes enacted by the Law-giving authority. Sources of International Law are custom grown up within the Family of Nations and Law- making treaties concluded by the members of that family * ‘The Law of Nations and Municipal Law differ, secondly, regarding the relations they regulate. ‘Municipal Law regulates relations between the individuals under the sway of the respective State and the relations between this State and the respective individuals. International Law, on the other hand, regulates relations between the member States of the Family of Nations.” ‘The Law of Nations and Municipal Law differ, thirdly, with regard to the substance of their Law: whereas Municipal Law is a Law of a Sovereign over individuals subjected to his sway, the Law of Nations is a Law not above, but between Sovereign States, and therefore a weaker Law.” International Law and Municipal Law are similar in their sources, chiefly customs and express agreements-with however substantial differences in legislative machinery. Infact, in recent times however, it cannot be denied that there is gradual convergence of interest and the ultimate goal of both is to secure the well-being of individuals. Areas where this common goal manifests itself include human rights Law, environmental Law and commercial Law, areas where there is increasing interaction between National Lawand International Law.” MONISM Monists hold that International Law and State Law share a common origin-namely Law.” And the scholars and followers of this theory are called Monists. According to Monism, International Law is directly applicable in the National legal order. There is no need for any Municipal implementing legislation; International Law is immediately applicable within National legal systems unlike Dualism, without any incorporation or transformation.” The theory of Monism itself has two parts according to Antonio Cassese, one which says that though the International Law and Municipal Law co-exist and is one and the same, but the Municipal laws principle is put forth as supreme is called Monism [and another which says though International Law and Municipal Law co-exist and are one and the same, but the International Law principle are put forth as. supreme is called Monism I, Monism I was developed by German scholars, namely Moser, Hegel, Bergbohm, Zorn, Wenzel between the 18th and 19th centuries. And Monism II is also by German philosopher Kaufmannin 1899. DN Palmer and C. H. Perkin, Inermatonal Relations: The World Community in Transition Third Revised Editi (India: A.LT.BS Publishers & Distributors, 2007) at 774 The Project Gueenberg EBook of L. OPPENHEIM, Interational Law, A Treatise, Vol 1, Peace, Second Ealtion, Longmans, Green and Co, Produced by The Online Distributed Prooftesding Team at hep:/ww pgdp.net (This file was produced from images generously made available by The Internet Archive/American Libraries), hrp/www gutenberg org/flw/41046/41046-h/41046-h hime Page 26 © ibid » ibid. "RLF. Oppong, “Re-Imaging International Law: An Examination of Recent Trends in the Reception of International Law into National Legal Systems on Africa® (2006) 30(2) Intemational Law Journal 2. 1, Browalie, Principles of Public International Law (Oxford: Oxford University Pres, 1979) at 32-34. RF. Oppong, “Re-Imaging International Law: An Examination of Recent Trends inthe Reception of International Law into National Legal Systems on Africa” (2006) 30(2) International Law Journal 2 » Antonio Cassese, Public International Law, Oxford University Pres, 2001 19MONISM - I Monism I put forth the idea that supremacy of Municipal (National) Law in the system. Monism I is of ideology that though both International and Municipal laws are laws and are applicable, Municipal Law principle are somewhat superior when compared to International Law. For illustration purpose, consider Municipal Law as Constitution and International Law as other laws in a state, thus it is like Constitution (Municipal Law) of a state having superiority over all other laws (International Law) in a state. Monistic I Theory was developed by German scholars namely Moser, Hegel, Bergbohm, Zorn, Wenzel in late 18th and early 19th centuries. Monistic I thinkers believe that National Law subsume and prevail over International legal rules. Therefore International Law proper does not exist on its own, it's just the ‘external Law’ of National legal systems. This is the reflection of the extreme nationalism and authoritarianism of a few great powers. This theory says there exist only one set of legal system or the doctrine of legal order and International and municipal are two branches of a single tree serving the needs of human community in one way or the other. Both laws emanate from a unified knowledge of Law and are the species of same genus-Law. MONISM - II ‘Monism Il slightly different and is the latest and widely accepted theory of Monism. Though both International and Municipal laws are laws and are applicable, Monism Il advances the idea that International Law principle are somewhat superior when compared to Municipal Law. If we take into account the above illustration, here International Law is like Constitution of a state having superiority over all other laws (Municipal Law) ina state. Monism II theory was found by Kaufmann, a German philosopher, in the year 1899.This theory is born from the assumption of states self-interest clashing against common interests of the individuals. Rights and obligations enumerated in the International Law accrue to and are imposed on not only States but also on individuals. According to Kelsen, Verdoss and Scelle, the subjects of International Law are not radically different from those of National Law and in both the legal system; individuals are seen as principal subjects. As International Law is superior to Municipal Law, it can be applied as such by Municipal courts, without any need for transformation. Therefore International legal system controls, imperfectly, all National systems.* DUALISM ‘The important principle of Dualism is that, International Law and Municipal Law are two separate and distinct orders, in their objects and spheres of operation, such that the norms of one would not operate within the realm of the other without a positive act of reception or transformation, as the case may be.” The International Law and Municipal Law are two entirely different things and the International Law can never be applied in the state without incorporating or transforming it into Municipal Law. In Dualism, at no circumstances, the International Law can prevail over the Municipal Law, and it is the Municipal Law which is always supreme. Dualism concept starts from the assumption that International Law and Municipal legal systems are two distinct and formally separate categories of legal orders and these two systems differ as to their subjects, sources and functions according to Anzilotti. Antonio Cassese, Public Invernational Law, Oxford Univesity Pres, 2001 » ibid. 7 Brownlie, Principles of Public International Law (Oxford: Oxford University Press, 1979) at 32:34 “The Role of International Law in the Protection of Human Rights under ‘Consticution” (1996) Afican Year Book of Interational Law, p.53; Morgenstern F “Judicial Practice and Sapremacy of International Law” (1950); Bridsh Year Book of International Law, p. 27 20The subject of the Municipal Law is primarily individuals and groups, and that of International Law is states. The Sources of Municipal laws are parliamentary enactments and courts decision, and for International itis treaties, customs and general principles of Law recognised by the civilized nations. The main function of Municipal Law is regulating internal functioning of the state, relation between the state and the individual, and function of International Law is o supervise the relations between states”. Therefore this theory holds that International Law cannot directly address itself to individuals; it must be transformed from International Law to National Law in order to have any effect on individuals. Municipal Law is conditioned by the norm that legislation is to be obeyed, whereas International Lawis conditioned by the pacta sunt servanda principle." The latter principle commands that agreements between states are to be respected. This principle is at the heart of modern International Law, especially treaty Law, and underlies the basis for performance of treaty obligations. Because of this consensual factor, Anzilotti concludes that the two systems are so distinct that no possible conflict is possible. In case of any conflict, National Law prevails; this is predicated on state sovereignty, which gives the right to the state to determine which rules of International Law are to have effect in a Municipal sphere.'" DIFFERENCES BETWEEN MONISM AND DUALISM > Inphilosophical terms, monism is that talks of oneness of the soul and dualism is that talks of two entities, individual and supreme soul. > When monism speaks of the oneness of existence, the term dualism does not endorse this view. > — Monism believes in the fusing of the self into supreme self. On the contrary, the term dualism does not believe that the individual self unites with the supreme self. > InInternational Law, monism believes that International and National legal systems can become aunity. Dualism states that there isa difference between internal and International Law. > There is no need for translating the International Law into a National Law in a monist state. Unlike monism, there isa need for the translation of International Law into National Law. Unless the translation takes place, the International Law is not accepted. CRITICISMS OF MONISM AND DUALISM™ > Thecriticism of Monistic Theory I is that, it is devoid of scientific value and intended to underpin ideological and political positions. > The criticism of Monistic Theory I is that, itis nice in theory, but really utopian and did not reflect reality. But it had important psychological impact and helped to introduce idea of responsibility of state officials as individuals. > The criticism of Dualistic Theory is that, it did reflect legal reality of 19th and 20th century, but couldn't explain some things, like the fact that some int'l rules do impose obligations on individuals (eg. piracy). Antonio Camese, Public Incernatonal Law, Oxford University Prew, 2001 ‘=''G Starke and LA. Shearer, Sarke’sInerntonal Law (London: Batter Wort’, 1994) at 64 J, G. Starke, and I. A. Shearer, Stark's International Law (London: Butter Worth’, 1994) at 64. ' Antonio Cassese, Public International Law, Oxford University Pres, 2001. 21TRANSFORMATION THEORY International Law undergoes transformation as it spreads universally.' Unless transformed, it cannot be applied to Municipal Law. States incorporate treaties and norms into their Municipal laws by specific “transformational” devices. SPECIFIC ADOPTION THEORY A second method, special adoption, requires legislation in order to give treaties Municipal effect. Specific Adoption Theory says that International Law cannot be applied in sovereign states unless and until the sovereign state specifically adopts that Law by way of enactments. Positivists support this theory. For example, International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights have been adopted in India under the Protection of Human Rights Act, 1993." DELEGATION THEORY International Law delegates the rule-making power to each State in accordance with the procedure and system prevailing in each state in accordance with the Constitution and Rules of the Treaty or: ‘Convention that member states sign and agree upon. Rl ETWEE} AL LAW OF STATES OF AMERICA A principle recognized both in International case Law (e.g., the Alabama claims case between the United States and the United Kingdom following the American Civil War) and in treaties (e.g., Article 27 of the 1969 Vienna Convention on the Law of Treaties) is that no Municipal rule may be relied upon asa justification for violating International Law. The position of International Law within Municipal Law is more complex and depends upon a country's Municipal legislation. ‘The Constitution of the United States stipulates (Article VI, Section 2) that treaties “shall be the supreme Law of the Land.” In Paguete Habana, the Court reaffirmed the Municipal status of customary International Law in the United States. Relying on scholarly sources, the Court acknowledged a long-held customary norm against seizing the coastal fishing vessels of a belligerent. The courtheld that International Lawis part of the United States Law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination.'™ Treaties are negotiated by the president but can be ratified only with the approval of two-thirds of the Senate (Article II)—except in the case of executive agreements, which are made by the president on his own authority. Further, a treaty may be either self-executing or non-self-executing, depending upon whether Municipal legislation must be enacted in order for the treaty to enter into force. Inthe United States, self-executing treaties apply directly as part of the supreme Law of the land without the need for further action. Whether a treaty is deemed to be self-executing depends upon the intention of the signatories and the interpretation of the courts. In Sei Fujii v. State of California (1952), for example, the California Supreme Court held that the UN Charter was not self-executing because its relevant principles concerning human rights lacked the mandatory quality and certainty required to create justiciable rights for private persons upon its ratification; since then the ruling has been consistently applied by other courtsin the United States. "© Referred from hup://www.lawnotesin/Theories relating International Law_and_ Municipal, Lawsixar3LFaésxNky. "Referred from htpi//warw lawnotesin/Theories relating International Law_and_Municipal_ Law#ixar3LFésxNky. 1 Referred from hitp//worw lawnotes n/Theories_relating_ International Law end_Municipal_ Law#ixzz3LFdsxNhy. '™ Referred from Nemanjalo Sukalo hupi/woa. academia edu/1114626/How lateroational_law_i_incorporated into. Municipal law_and why. it important hel 22UNITED KINGDOM The United Kingdom takes an incorporationist view, holding that customary International Law forms part of the common Law. British Law, however, views treaties as purely executive, rather than legislative acts. Thus, a treaty becomes part of Municipal Law only if relevant legislation is adopted. INDIA Indian position on the relationship between international law and municipal law depends upon the provisions of the constitution (Art.253 & Art.51). However the relationship between both legal systems is. not clearly defined by the constitution and an analysis of judicial decision shows that in India dualism is followed. Customary rules of international law are part of municipal law provided they are not inconsistent with any legislative enactment or the provisions of the constitution of India. As regards treaty rules the British dualist model is followed is India”, In case of conflict between a provision of an International treaty and a provision of a state statute it is the latter which shall prevail if the international treaty in question has neither been specifically adopted in the municipal field nor has undergone transformation." However the recent position seems different as if there is no conflict between IL and ML. in the case of Vishaka V State of Rajasthan" in the absence of domestic law occupying the field to formulate effective measures to check the evil of sexual harassment at work places the contents of international conventions and norms are significant for the interpretation of the guarantee of gender equality and right towork with dignity. EMERGING TRENDS“ International Law, no longer constitute a sphere of Law tightly separate and distinct from the sphere of Law of National legal systems. It isn'ta different legal realm from National Law; it has had a huge daily direct impact on National Law. Many International rules now address themselves directly to individuals, without intermediary of National systems (e.g. International crimes) or grant individuals rights before International bodies. Courts may play a crucial role in ensuring compliance at National level with International legal standards. They can use two interpretive tools - presumption in favour of International treaties and Presumption that treaty-implementing National Law is “special”. This can advance International Law over Municipal Law. Furthermore, there are more International rules that address themselves directly to individuals, either by imposing obligations or granting rights. These International rules reach individuals directly, not via Municipal Law. % ADM Jabalpur V Shukla, LJ.LL VoL9(1968), p24 Jolly George Varghese V Bank Of Cochin, AIR 1980 $470 ' AIRI997SC3011; See also Apparel Export Promotion council V A.K.Chopra.& Chairman, Railway Board and others V Chandrima das and others. Inspired from Antonio Cassese, Public International Law, Oxford University Pres, 2001 23SUBJECTS OF INTERNATIONAL LAW CONTENTS Introduction Subjects of International Law Theories regarding Subjects Place of State in International Law Criteria for Statehood Self-Determination and criteria for Statehood Place of Individuals Protection of Individual rights and the Mechanism to protect them Individual Criminal Liability 10. International Organizations as Subjects of International Law 11. Conclusion INDRODUCTION International law is the universal system of rules and principles concerning the relations between ‘sovereign States, and relations between States and international organisations such as the United Nations. ‘The modern system of international law developed in Europe from the 17th century onwards and is now accepted by all countries around the world. SUBJECTS OF INTERNATIONAL LAW Asubject of international law (also called an international legal person) isa body or entity recognised ‘or accepted as being capable of exercising international rights and duties. The main features of a subject of international law are ype N AY ew a) Theability to access international tribunals to claim or act on rights conferred by international law; b) _ Theability toimplement some or all of the obligations imposed by international law; and ©) Possession of the power to make agreements, such as treaties, binding in international law; 4) To enjoy some or all of the immunities from the jurisdiction of the domestic courts of other States. thisis a somewhat circular definition, there are at least two definite examples of subjects of international law, namely, States and international organisations. In the Reparations Case the International Court of Justice confirmed that the United Nations could recover reparations in its own right for the death of one of its staff while engaged on UN business. International personality was essential for the UN to perform its duties, and the UN has the capacity to bring claims, to conclude international agreements, and to enjoy privileges and immunities from national jurisdictions. It is accepted that international organisations are subjects of international law where they are a permanent association of 24States, with lawful object, have distinct legal powers and purposes from the member States and can exercise powers internationally, not only within a domestic system. Examples of this type of international organisations are the European Union, the Organisation of American States, the African Union, and Organisation of the Islamic Conference and specialised UN agencies. The International Committee of the Red Cross, based in Switzerland, has a unique status in international law as an inter-governmental organisation as guardian of the Geneva Conventions of 1949 for the protection of victims of armed conflict. It is neither an international organisation nor a non- governmental organisation, but hasa special legal status under treaty law by virtue ofits important functions in upholding legal protections in situations of armed conflict. Traditionally, individuals were not regarded as having the capacity to enjoy rights and duties under international law in their own right, but only as those rights and duties derived from the State to which they ‘belonged’. However, there is no principle in international law that prohibits individuals being recognised as subjects of international law. It will depend on the circumstances. The development of human rights law has advanced the recognition of individuals in international law because at its heart isthe idea that individuals have rights and can assert them against States under international law. THEORIES {) TRADITIONAL DOCTRINE OF INTERNATIONAL LAW Itwould be superfluous to cite all the international lawyers who believe that states only are subjects of international law. In between the world wars, and particularly after the second, many of these scholars started to recognize the international personality of some interstate organizations. It is worthy to mention the following thinkers, among others, Anzilotti, Kaufmann, Makowski, Winiarski, Triepel, Strupp, and Erich, Robert Redslob, joined the above-mentioned scholars in their writings ater the last World War. He contends that only states can be subjects of rights and duties established by the law of nations. Collectivities of other kinds and individual persons are, in consequence, excluded from participation in the law ofnations. These few scholars have been chosen from a multitude of writers who support the traditional doctrine because they belong to the “irreconcilables” and fight the implementation of “erroneous conceptions” in the practice of international law. The predominant role of the states as international persons is generally recognized as an unchallenged principle of international law, since even the overwhelming majority of those writers who have declared themselves to be partisans of the international personality of individuals as well as of that of states, do not fail to stress that, (a) The personality of individuals as it exists now in international law is an exception to the general principles of international law; (b) Individuals may be only limited subjects of the law of nations, since their personality depends on the will of states and on the agreements which those states conclude on behalf of individuals as a “Pactum in favorem tertii.” dT} IAL AS THE SOLE SUBIE‘ Belonging to another category of theorists who believe in the international personality of the individual are writers who try to destroy the whole present structure of public law by depriving the state of its legal personality and conferring this quality exclusively on the individual. This trend was started in 1901 by Léon Duguit’, who greatly influenced a certain number of writers in international law in several countries. For him not states but individuals are subjects of international law. The state is a subject neither of international law nor of municipal law, and not being a person, it cannot have any rights whatsoever. 25Gaston pronounced himself immediately in favor of Duguit’s conceptions of state, law, and rights, conceptions which were supposed to create a new “sociologist’ or “positivist” school of law. Krabbe, apparently under Duguit’s influence, develops his theory that individuals only may be subjects of law. In 1908, Nicolas Poliis, then professor in Poitiers, aceeded to these ideas with his usual enthusiasm, and has been faithful to them in his writings on international law. He claimed that international law can only bea body of rules governing the intercourse of men who belong to various political groups. (il)_BOTH STATES AND INDIVIDUALS AS SUBJECTS OF INTERNATIONAL LAW The idea that ‘international law’ rules not only the intercourse of independent states but also that its provisions are directly binding on individuals without the intermediary of their state, is at least as old asthe science of international law, which originated in the sixteenth century. Grotiusconsidered the law of nations asa body of rules governing the activities of individuals in international relations rather than as a body of provisions binding on states in their relations with other states. Pufendorfstresses the identity of the natural law binding for individuals and states. Hobbes expresses a similar opinion. PLACE OF STATE IN INTERNATIONAL LAW Until recently, an overwhelming majority of writers on international law appear inclined to advocate that states only be recognized as legal persons, thus subjects of International law. In spite of the growth of international organizations with the power of independent action in the international plane and the growing importance of individuals having certain international rights and duties, the state is still the typical subject of international law. But what is a state? CRITERIA FOR STATEHOOD Inthe domain of municipal law, the word ‘State’ iscommonly used todenote an organized political society as distinct from its indi-vidual members. The terms “State” and “Nation” are sometimes ‘used inter--changeably. The concept of “State” is the antithesis of the concept of the empire. It means local sovereignty as opposed to universal dominion. The existence of the concept was influenced by the writings of a large number of political philosophers including Bodin, Alchusius, Machiavelli, Hobbes and Lockeamong others. Itis generally acknowledged that the system of States is “legislated into existence, or at least confirmed, by the Peace treaty of Westphalia of 1648”. To the so-called father of International Law, Hugo Grotius, State is “a complete association of free men, joined together for the enjoyment of rights and for their common interest". Much the same way, Pufendorf defined the State as “a compound moral _ person, whose will, international and united by the facts of a number of men is considered the will of all, so that it is able to make use of the strength and faculties of the individual members for the common peace of security”. The external sovereignty, on theotherhand, may require recognition by other State in order torender it perfect and complete. Be that asit may bethe criteria for statehood according to the naturalist and according to the positivist schools of thought, the most authoritative and widely accepted formulation of the qualifications for the State as a person of international law is contained in the Montevideo Convention on Rights and Duties of States 1933, The Convention was adopted bythe Seventh International Conference of American States. Fifteen Latin American States and the United States are parties to it. The Convention is accepted as reflecting, in general terms, the characteristics ofstatehood atcustomary international law. Article 1of the Montevideo Convention enumerates the following requirements ofthe State asa person of international law: 26(a) Apermanent population (b) Adefined territory (c) Government (d) Capacity toenter into relations with other States {a) POPULATION To constitute a State, first of all, there must be people. People are an aggregate of individuals ofboth sexes who livetogetheras a community. Itdoes not matter whether they are of the same race, colour or creed. Acommunity isnot prevented from becoming a State because itincludes aminority population. The heterogeneity of population does not by itself constitute an impediment to statehood. There isno minimum limit to the size of a State's population. The Vatican City has even fewer permanent residents. The rule requiring States to have apermanent population doesnot relate to the nationality of that population.” The grant ofnationality isa matter ofdomestic legislation and falls within the domain of municipal lawand not international law. Nationality isthus dependent onstatehood, but the reverse does not appear tobe true. -(b) TERRITORY Another characteristic of States isto have aterritorial basis andthus to enjoy the territorial sovereignty. Territorial sovereignty maybe described as the power of a State to exercise an exclusive authority over allpersons and things within its territory. In the arbitral award in the Island of Palamas case15, Judge Max Huber said: “Independence in regard to a portion of the globe is the rightto exercise therein, tothe exclusion of any other State, the functions of a State The development of the national organization of States during the last few centuries and asacorollary,the development of international law, has established this principle of the exclusive competence of the State in regardto itsown territory insuch away asto make the point of departure in settling most questions that concern international relations.”The territory of a State is that portion of the earth's surface over which it exercises supreme and exclusive sovereignty. It comprises land territory, territorial waters, national waters and air space over the territory as also the subsoil underneath. Thus territory being a fundamental concept of international law,a State cannot exist without that. The Holy Sea, for example, had long been considered asubject of international law with capacity tomake treatiesand to send diplomatic representatives. Yet it was not regarded as a State until it achieved asmall piece of territory and became the Vatican ity after the conclusion of the Lateran Treaty of 192913. There isno rule prescribing the minimum size required of the territory of aState and there areseveral examples, Forinstance, Monaco and Nauru,the so-called mini—States, in the present day, “Family of Nations”. {c) GOVERNMENT Another requirement of statehood isa Government. A government may be defined as, “A political organization by which relations in thecommunity are regulated andthrough which the rules are upheld”. The Government should enjoy habitual obedience of the bulk of the population. For example, in 1920, the Committee of Jurists of the League of Nations reported that Finland wasnot aState by stating that: “For aconsiderable time, the conditions required 27forthe formation of a sovereign State did not exist. In the midst of revolution and anarchy, certain elements essential to the existence of aStatewere lacking for a fairly considerable period. Itis therefore difficult to sayon what exact date the Finnish Republic, in the legal sense of the term, actually became adefinitely constituted sovereign State. This certainly did not take place until’ astable political organization had been created.” (d) CAPACITY Capacity to enter into relations with other States referred to inthe Montevideo Convention means independence, that is independence in law from the authority of any other State and hence thecapacity inlawtoconduct relations with other States. The concept of independence implies that a State is free to adopt any constitution it likes, is free to deal with its own citizens (either inside or outside its territory) and aliens within its territory, is at liberty to shape its foreign policy,tojoin any block or adopt a neutral attitudeand to conclude agreements with other States or international organizations to suit its interests, without any intervention by other nations. (e) STABILITY Though stability is not a requirement in accordance with the generally accepted definition of a Stateas a prerequisite for state-hood®, stability “has anobvious rationale”. Even ifitisnot an indispensable attribute, it is “a sometimes important piece of evidence astothe possession of these attributes”. Without theexistence ofacertain measure ofstability, the entity will not be viable and able to discharge its international obligations effectively. It is not easy always topredict the stability of anewly born State with certainty. SELF-DETERMINATION AND THE CRITERIA FOR STATEHOOD It is the criterion of government which has been most affected by the development of the legal right to self-determination. The traditional exposition of the criterion concentrated upon the stability and effectiveness needed for this factor to be satised, while the representative and democratic nature of the government has also been put forward asa requirement. The evolution of self-determination has affected the standard necessary as far as the actual exercise of authority is concerned, so that it appears a lower level of effectiveness, atleast in decolonisation situations, has been accepted. This can be illustrated by reference toa couple of cases.” ‘The former Belgian Congo became independent on 30 June 1960 in the midst of widespread tribal ghting which had spread to the capital. Within a few weeks the Force Publique had mutinied, Belgian troops had intervened and the province of Katanga announced its secession. Notwithstanding the virtual breakdown of government, the Congo was recognised by a large number of states after independence and was admitted to the UN as a member state without opposition. Indeed, at the time of the relevant General Assembly resolution in September 1960, two different factions of the Congo government sought to be accepted by the UNas the legitimate representatives of the state. In the event, the delegation authorised by the head of state was accepted and that of the Prime Minister rejected. A rather different episode occurred with regard to the Portuguese colony of Guinea-Bissau. In 1972, a UN Special Mission was dispatched to the ‘liberated areas’ of the territory and concluded that the colonial power had lost effective administrative control of large areas of the territory. Foreign observers appeared to accept the claim of the PAIGC, the local liberation movement, to control between two-thirds and three-quarters of the area. The inhabitants of these areas, reported the Mission, supported the PAIGC which was exercising effective de facto administrative control. 28