The term “international law” was first
used by the English philosopher Jeremy Bentham in 1780 in his treatise entitled
“Introduction to the Principles of Morals and Legislation”. Since about
1840, this term replaced the older terminology “law of nations” which can be
traced back to the Roman concept of “ius gentium”.[1]
International Law is divided into two
branches: Private International Law (conflict of laws as it is called in the
countries of the Common Law System), and Public International Law (usually just
termed International Law).[2] Private International Law deals with
those cases, within a particular legal system, in which foreign elements
involve, raising questions as to the application of foreign law or the role of
foreign courts. Public International Law deals, in general, with the external
relations of States. It is this latter branch of International Law is the
subject of this present book.
What is Public International Law? How
is it originated and developed? What is the aim it is trying to achieve?
The answers to all these raised
questions are dealt with in the following sections.
I. Definition of Public
International Law
Until the Second World War, legal
scholars found no difficulty in defining “Public International Law”, in one
formation or another, as the law that governs the relations between States.
This traditional definition is a reflection of the prevailing doctrine of the
nineteenth century and the first half of the twentieth century considering that
only states could be persons (subjects) of Public International Law, in the
sense of enjoying international legal personality, i.e., being capable of
possessing international rights and duties.[3]
However, since the mid-twentieth
century, the traditional definition has become controversial due to both the
expansion of the scope of the Public International Law into new areas and the
emergence of new actors, beside states, on the international scene, such as
international organizations, multinational corporations, individuals and
groups, including minorities and indigenous peoples.[4] Some of these actors have acquired
international legal personality, or, at least, certain rights under
International Law.
In the light of this development, the
traditional definition has become incomprehensive description of this law, and
the change of the definition of the Public International Law has become
inevitable. Public International Law has been defined as a body of legal rules
which regulates or governs relations between international persons (subjects).
This contemporary definition of Public International Law goes beyond the
traditional one which defines this law as a body of rules governing relations
between states.
Thus, the contemporary Public
International Law consists of the following:
(a) Legal rules of conduct which states
feel themselves bound to observe in their relations with each others;
(b) Legal rules related to the
functioning of international organizations, their relations with each other and
their relations with States and individuals; and
(c) Legal rules related to individuals
and non-state entities as far as the rights and duties of these subjects are
the concern of the international community.
Public International Law now covers
vast and complex areas of international concern, including traditional topics,
such as the State, peace and security, the laws of war, the laws of treaties,
the law of the sea, the law of diplomatic and consular relations, as well as
new topics, such as international organizations, economy and development, air
law and outer space activities, communications, the environment, and last but
not least, human rights.
The rules of Public International Law
are general and universal in their nature, and are legally binding on all the
persons of International Law. These rules must be distinguished from what is
called international comity and what is known as international morality. A
comity is a friendly gesture or courtesy exercised by one State toward another
without constituting a legal obligation; an example of a comity is the flag
salute at the sea. A comity helps in promoting and maintaining friendly
relations among States. While not a legal rule, a comity can be widely observed
and can evolve into a customary international rule or be codified as a law; an
example of an international comity which was codified as a law is the exemption
from customs duties of personal articles used by diplomats (codified in the
Vienna Convention on Diplomatic Relations of 1961).
Rules of International Law may meet at
certain points with principles of international morality since they cannot be
divorced from their moral values. However, the former rules are legal in their
contents and forms, while the principles of morality are part of the discipline
of ethics which is not legally binding.
II. Origin and Development of Public
International Law[5]
The foundations of Public International
Law as it is understood today lie firmly in the development of political
relations between the Western European States some 400 years ago. However,
certain basic concepts of this Law can be traced back thousands of years ago,
in relations between ancient political entities, such as of the Near East,
Greece and Persia.[6]
The structure and development of Public
International Law is connected with the era of sovereign national States
dealing with each other as independent entities. In this sense, therefore, the
history of this Law can be regarded as beginning in the 16th Century
with the emergence of independent nation-states from the ruins of the medieval
Holy Roman Empire which was based on the claims to universal authority of the
Pope as the spiritual, and the Emperor as the temporal, head of Christian
nations of Europe.[7] As this Empire disintegrated, a growing
number of independent and equal States filled the gap.
The Emergence of independent and equal
States subject to no temporal superior authority led to new political theories.
The most prominent among these theories was the theory of Sovereignty. This
theory was explicitly formulated by Jean Bodin (1530-1596) in his treatise
entitled Six Livres de Republique (Six Books on the Republic) of 1576.[8] According to Bodin, in every State
there exists in an individual monarch a power called sovereignty (majestas).
Sovereignty is a Republic absolute and perpetual power. It is absolute because
it is indivisible; however, it is not without any limits. While such a
sovereign is not bound by the laws himself instituted, he remains bound by the
divine law, the law of nature, and the law of nations. Sovereignty is perpetual
because it does not disappear with its holder (the sovereign). The concept of
sovereign as supreme legislator, as formulated by Bodin, was in the course of
time evolved into the principle which gave the State supreme power vis-à-vis
other States.[9]
The coexistence of independent
sovereign States led to the development of the system of interstate relations.
The need for rules regulating the intercourse between the newly emerging States
in Europe stimulated these States to draw mainly upon the Roman Law and the
Cannon Law (the Law of Roman-Catholic Church) for the sources of such rules.[10] The significance of the Roman Law and
the Cannon Law contribution to “the law of nations” lies not only in the
development of a modern system of interstate legal relations, but also in the
development of many principles of general equity and “natural law” some of
which are similar to certain general principles of law recognized by civilized
nations.[11]
In the few centuries that preceded the
Thirty Years War (1618-1648), the intensification of international trade, and
the improvements in navigation and military techniques, and the discovery of
many distant lands by the European States stimulated further development of
international practices and the emergence of new conceptions of the law of
nations.[12] The intensification of trade led to
the conclusion of many commercial treaties and the emergence of new practices
and principles related to the law of merchant and the maritime law. Notably,
the growth of international trade had from the 8th Century onwards
led to the development of international law of merchant and, in particular, to
various compilations of maritime law which gained increasing international
recognition. The international customs and principles related to the law of
merchant and maritime constituted part of the practices and principles of “the
law of nations.”
The discovery and subjugation of
distant lands and peoples by European States produced numerous conflicting
claims of sovereignty, jurisdiction, rights of trade and rights of navigation
as well as problems of relations. All these developments urged the Europeans to
resort to the Roman Law for helpful norms or analogies, and consequently led to
new practices and principles.
By the 17th Century, the
growing complexity of international principles, customs and treaties had given
rise to their compilation and to the development of further rules governing the
conduct of States in time of war and peace. The most important treatise,
dealing with States’ relations in time of war and peace, of this period was “De
Jure Belli Ac Pacis” (On the Law of War and Peace), published in 1625 by
the Dutch jurist and diplomat Hugo Grotius (1583-1645).[13] Hugo Grotius is recognized as the
“Father of International Law”, and his treatise is generally regarded as
providing the foundation of the Public International Law.[14]
Beside Grotius, there are many jurists
who contributed extensively to “the law of nations” during the 17th
and the 18th centuries. Among these jurists are Francisco de Vitoria
(1480-1546), Suarez (1548-1617), Alberico Gentili (1552-1608), Samuel von
Pufendorf (1632-1694), Richard Zouche (1590-1660), Johann Jakob Moser (1701-1785),
Christian Wolff (1676-1754), and Emerich de Vattel (1714-1769).[15]
The International Law (the law of
nations) further expanded in the 19th Century. This expansion was
due to major events such as the expansion of the European empires, the rise of
powerful States both within and outside Europe, the spread of the thought of
democracy and nationalism, the Industrial Revolution, the modernization of
world transport, and the influence of new inventions.[16] All these events urged the
international community to develop the International Law in order to
accommodate such events. Consequently, International Law as a law regulating
diplomatic and commercial relations between States, and the conduct of war,
multiplied and intensified during the 19th Century.
The establishment of the League of
Nations in 1919, following the First World War, and the establishment of the
United Nations in 1945, following the Second World War, represented two
significant turning points in the development of the International Law. The
development was characterized by a new departure in the evolution of this Law.
International Law began its evolution from being primarily a system of regulating
relations between States towards becoming also a system of international
cooperation.
The League of Nations was the first
international organization established primarily for the purpose of maintaining
international peace and security. The establishment of the International Labor
Organization (ILO), affiliated with the League of Nations, in 1919 signaled the
end of an era in which International Law was, with few exceptions, confined to
the regulation of relations between States.[17] The ILO was the first permanent
international organization concerned with the improvement of labor conditions
and social welfare at the international level. In 1921, the Permanent Court of
International Justice (PCIJ) was established as the first permanent
international judicial organ with an international judicial jurisdiction.
The establishment of the United Nations
in 1945 led to a progressive development of International Law. During the
post-United Nations’ era, the development of International Law has been
influenced by two major events effected the international community.[18] The first major event has been the
expansion in the membership of the international community. New States, mostly
representing non-western civilization, have joined the club of family of
nations, which was previously exclusively limited to States belonging to
Western Civilization. The concerns and priorities of these States have been
different from those of other States; they have been occupied with the development
of their political, economic and social systems. The second major event has
been the massive expansion of international organizations for cooperation.
Numerous specialized agencies of the United Nations and other international
organizations, universal as well as regional, have been established. This event
has confirmed the evolution International Law from its traditional nature to
its contemporary nature of being a system of organized collective efforts for
cooperation.
Since the establishment of the United
Nations, a great number of international treaties covering all aspects of
international affaires have been concluded. Law-making treaties have been
contributing extensively to the rapid development of Public International Law.
They have led to may important new developments in Public International Law,
and greatly increased both its scope. Apart of the law-making treaties,
international courts, the present International Court of Justice (ICJ), its
forerunner the Permanent Court of International Justice (PCIJ), and others,
have been also contributing to the development of Public International Law.
Moreover, the International Law Commission created in 1947, the organs of the
United Nations and its specialized agencies have been playing a significant
role in developing and expanding Public International Law.
In conclusion, Public International Law
has evolved from being primarily a law of coexistence, which characterized it
from its birth in the early 16th century to the mid 20th
century, to a law of international organization and cooperation.[19] Moreover, the most important
characteristic of Contemporary Public International Law is the steady expansion
of its scope through the inclusion of new subject matters formerly outside its
sphere, and the inclusion of new participants and subjects such as
international organizations and individuals.[20]
III. Aims of Public International
Law
The initial aim of Public International
Law has been to create an orderly system of international relations. However,
the modern developments of this law have added another aim to it. Since the
beginning of the Twentieth Century, there has been an evidence of a tendency to
bring justice into the international community through ensuring justice in the
relations of States and securing justice for peoples and individuals.
The establishments of the Permanent
Court of International Justice in 1921 and the International Court of Justice
in 1945 have been a clear evidence of such a new aim of the Public
International Law. The use of the term “justice” in the name of these
international courts where disputes among States are decided and where advisory
opinions are given according to Public International Law is evidence that
justice has become the concern of this law, and has become one of its aims and
purposes.
To ensure and secure justice, and above
all, to bring order to the international relations are the primary aims of the
contemporary Public International Law. This law, which regulates relations
between international persons, aims to create a system of order and justice for
the international community. In the absence of such a system, it will be
impossible for the international persons to have steady and continuous
relations, and to enjoy the benefits of such relations.
.
Subjects of International Law
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A subject of
International Law is a person (entity) who possesses international legal
personality, i.e., capable of possessing international rights and obligations
and having the capacity to take certain types of action on the international
level.[1] Traditionally, States have been
the only subjects or persons of International Law.[2] However, with the establishment
of international organizations, it has become necessary that a sort of
international legal personality be granted to these entities. Thus,
international organizations become subjects or persons of International Law.[3] Beside States and international
organizations, non-States entities such as members of federal States,
belligerents, insurgents, national liberation movements, and international territories
are granted a sort of international legal personality. Special
international status was granted to the Holly See and the Vatican City, and
the Sovereign Order of Malta. Moreover, individuals, ethnic minorities,
and indigenous peoples are considered, in certain circumstances, subjects of
International Law. These persons and subjects of International Law are
discussed in the following.
1. States
States are
the original and major subjects of International Law. Their legal personalities
derive from the very nature and structure of the international system. All
States, by virtue of the principle of sovereign equality, enjoy the same
degree of international legal personality.
International Law is primarily concerned with the rights, duties and
interests of States. Normally the rules of conducts that International
Law prescribes are rules which States are to observe.
Since a
State is the primary concern of International Law, it is necessary to study
it in a separate chapter. Thus, the next chapter of this book is
devoted to the study of a State as a subject of International Law.
2. International
Organizations
An
international organization is an association of States, established by a treaty
between two or more States. Its functions transcend national
boundaries. It is for certain purposes a subject of International Law.
The
appearance of international organizations from the early part of the
Nineteenth Century raises a critical question of their status in the
International Law.[6] International organizations are
generally considered to be subjects of International Law, as are States, even
though their international legal personality is limited to possessing
specific rights and duties. Their status is determined be conventions
among States and, therefore, the recognition of the international personality
of an international organization is limited to signatory States of the
convention creating such an organization.
International organizations include universal all purposes organizations,
universal functional organizations, and regional organizations.
Generally, the treaty creating a public international organization indicates
its nature, purposes and powers. The international legal personality of
an international organization is, therefore, limited to the rights, duties,
purposes and powers laid down in the treaty creating it. The
international legal personality of the United Nations, for example, is
derived from the United Nations Charter, the Headquarters Agreement between
the United Nations and the United States of America of 1947, and the 1946
Convention on the Principles and Immunities of the United Nations.[7] The attribution of an
international legal personality involves the capacity to perform legal acts,
to have rights and duties and to enter into relations on the international
level. Actually, the legal capacity of the United Nations was a
question brought before the International Court of Justice. In its
advisory opinion in the Reparation for Injuries Case of 1949,[8] the Court held that the United
Nations was an international person, although not a State, and therefore not
having the same rights and duties as a State. The United Nations had an
international personality; its functions and powers were so important that
the Organization could not carry them out unless it had some degree of
international personality. The United Nations can perform legal acts such as
entering into agreements with member States and with other international
organizations, concluding contracts and bringing claims before a court.
Such capacity to perform legal acts is a prerequisite of international legal
personality.
In reality,
international organizations have exercised their legal capacity in a great
variety of ways. They have concluded treaties, created military forces,
convened international conferences, and brought claims against States.
3. Non-State
Entities
There are
certain entities, although they are not regarded as independent States, they
are granted a degree of personality, a definite and limited special type of
personality, under International Law. Such entities have certain rights
and duties under International Law. They can participate in
international conferences and enter into treaty relations.
However, the
rights and duties of these entities in International Law are not the same as
those of the States. They have a sort of international personality.
The capacity of each of them is more limited than an independent State
has since it is limited to the purpose it is existed for and the powers or
functions it can perform. These entities fall into the following
categories:
(a)
Members of composed States or federal States:[9] The federal State has itself,
of course, an international legal personality, but the controversial question
is whether the component units of the federation have the personality on the
international plane. Actually, the international personality of such
units and its extent can only be determined in the light of the constitution
of the State and State practice. The constitution of a federation
may grant a component unit a special international personality; however such
personality will not be operative on the international plane without being
recognized as such by other States. State practice has granted
international personality to certain component units of the federation.
For instance, the Soviet Republics of Byelorussia and the Ukraine were admitted
as members of the United Nations in 1945 and to that extent possessed
international personality.[10] Moreover, these two Republics
were members of a number of international organizations and parties to a
number of treaties.
(b)
Insurgents and Belligerents: Insurgents are individuals who
participate in an insurrection (rebellion) against their government.[11] Belligerents are a body of
insurgents who by reason of their temporary organized government are regarded
as lawful combatants conducting lawful hostilities, provided they observe the
laws of war.[12] For a long time, International
Law has recognized that insurgents and belligerents may in certain
circumstances, primarily dependent upon the de facto administration of
specific territory, be international subjects having certain rights and
duties under International Law, and may in due course be recognized as de
facto governments.[13] They can enter into valid
arrangements on the international plane with States, international
organizations, and other belligerents and insurgents. They are bound by
the rules of International Law with respect to the conduct of hostilities.
(c)
National liberation movements: In the course of anti-colonial actions
sponsored by the United Nations and regional organizations, these
organizations and the member States have conferred international legal status
upon certain national liberation movements.[14] In 1974, the General Assembly
recognized the international legal status to the Angolan, Mozambican,
Palestinian, and Rhodesian movements (which had been recognized as such by
the Organization of African Unity (OAU) or the Arab League), and
accorded them observer status in its meetings, in meetings of various organs
of the United Nations, in meetings of the United Nations specialized
agencies, and in conferences convened under the auspices of the United
Nations.[15] The Security Council of the
United Nations permitted the Palestine Liberation Organization (PLO) to
participate in its debates with the same rights of participation as conferred
upon a member State not a member of the Security Council.[16]
International practice has accorded the political entities recognized as
national liberation movements a number of legal rights and duties. The
most significant of these rights and duties are the capacity to conclude
binding international agreements with other international legal persons, the
capacity to participate in the proceedings of the United Nations, and the
rights and obligations of International Humanitarian Law.[17]
(d)
International territories:[18] The term “International
territory” refers to territories placed under a variety of international
legal regimes including those administered by the United Nations under the
trusteeship system or special arrangements. The Charter of the United
Nations established the trusteeship system, replacing the mandate system
established by the League of Nations, to enable the United Nations itself or
a State to administer certain territories pending independence.[19] The United Nations is also
able to administer territories in specific circumstances. In several
instances, The United Nations placed certain territories under its
transitional administration for a variety of purposes, such as the
preparation for independence, the administration of an election, the adoption
of a new constitution, the implementation of a peace settlement, and the
performance of other civil functions. Examples of such instances are
Cambodia (1992-1993), Bosnia and Herzegovina (1995- ), and East Timor
(1999-2002).[20]
The
territories (trust territories) placed under the trusteeship system have been
accorded special status under International Law. Their inhabitants have
been granted the rights for advancement, progressive development, and
self-government or independence. Actually, all these territories have
attained independence as separate States, or have joined other independent
States. The territories placed by the United Nations under special systems,
except Cambodia which has been already an independent State, have been also
accorded special status under International Law for the purpose of assisting
them in attaining their independence.
4. Special case entities
There are
two special case entities accorded a special unique status under
International Law; they are the Sovereign Order of Malta, and the Holly See
and the Vatican City.
(a)
The Sovereign Order of Malta: [21] The Sovereign Order of Malta
was established during the Crusades as a military and medical
association. It ruled Rhodes from 1309 to 1522. It was entrusted
to rule Malta by the treaty with King Charles V of England in 1530. It
lost its rule of Malta in 1798. In 1834 the Order established its
headquarters in Rome as a humanitarian organization. The Order already
had international personality at the time of its taking control of Malta and
even when it had to leave the island it continued to exchange diplomatic
legations with most European States. Today, the Order maintains
diplomatic relations with over forty States.[22]
(b)
The Holy See and the Vatican City:[23] The Holy See, which is
sometimes used interchangeably with the Vatican City, is the international
legal person of the Roman Catholic Church, with its physical location at the
Vatican City in Rome and its sovereign the Pope.[24] It is not a State in the
normal sense of the word. It is a unique person of International law
because it combines the feature of the personality of the Holy See as a
religious entity with its territorial base in the Vatican City.[25] Apart of some one thousand
Church functionaries, it has no permanent population of its own. Its
sovereign territory consists of only about one hundred acres granted it by
Italy in the 1929 Lateran Treaty. Nevertheless, the status of the Holy
See as an international person is accepted by a number of States. Its personality
approximates to a State in functions. The Holy See exchanges diplomatic
representatives with other States, enters into bilateral treaties (called
concordats), and is a party to many multilateral treaties.
5. Individuals
The ultimate
concern for the human being has always been the essence of International
Law. This concern was apparent in the Natural Law origin of the
classical International Law. The growth of the positivist theories of
law, particularly in the Nineteenth Century, obscured this concern for the
human being and emphasized the centrality and even the exclusivity of the
State in International Law.[27]
In the
Twentieth Century, International Law became again concerned with
individuals. In 1907, the Hague Conventions initiated the concern in
view of prisoners of war and the wounded.[28] During the Second World War,
the trend of International Law had been towards attaching direct
responsibility to individuals for crimes committed against the peace and
security.[29] The Charter of London of 1943
issued by the Allied Powers established the individual responsibility for
committing war crimes, crimes against humanities and crimes against
peace. On this basis, after the Second World War, the German leaders
were brought to trial before the Nuremberg International Tribunal (1945-1946)
where their guilt was established. The Charter of the Nuremberg
International Tribunal of 1945 provided specifically for individual
responsibility for crimes against peace, war crimes and crimes against
humanity.[30] The Nuremberg International
Tribunal pointed out that “international law imposes duties and liabilities
upon individuals as well as upon states” and this was because “crimes against
international law are committed by men, not by abstract entities, and only by
punishing individuals who commit such crimes can the provisions of
international law be enforced”.[31] The principles of the Charter of the
Nuremberg Tribunal and the decisions of this tribunal were affirmed by the
General Assembly of the United Nations in 1946, thus making them to be part
of the International Law.[32] The Assembly also, in 1946,
stated that genocide was a crime under International Law bearing individual responsibility;[33] and this was reaffirmed in the
Genocide Convention of 1948.[34]
Individual
responsibility was also confirmed with regard to grave breaches of the Four
Geneva Conventions of 1949 and the Additional Protocols I and II of 1977,
which deal with armed conflicts (International Humanitarian Law).
On this basis, two specific international war crimes tribunals were
established, one for the former Yugoslavia in 1993 and one for Rwanda in
1994, to prosecute persons responsible for the serious violations of
International Humanitarian Law committed in the territory of each of these
countries.
The events
in the former Yugoslavia and Rwanda impelled the renewal of the international
concern for the establishment of a permanent international criminal court,
which had long been under consideration. In 1998, the Rome Statute of
the International Criminal Court was adopted at the United Nations Diplomatic
Conference. The Statute provides that the jurisdiction of the Court is
limited to “the most serious crimes of concern of the international community
as a whole”, which are the crime of genocide, crimes against humanity, war
crimes and the crime of aggression,[35] and that “[A] person who commits a crime
within the jurisdiction of the Court shall be individually responsible and
liable for punishment in accordance with this Statute.”[36]
In addition,
after the Second World War, International law became also concerned with
individuals in the field of human rights and the fundamental freedoms.
The Charter of the United Nations started this trend in 1945 by calling upon
member states to observe human rights and fundamental freedoms for
individuals and peoples.[37] Since then, several
conventions have been concluded to define human rights and fundamental
freedoms which individuals and peoples are entitled to and to ensure their
respect and protection. Among these conventions are the International
Covenant on Civil and Political Rights of 1966,[38] and the International Covenant on
Economic, Social and Cultural Rights of 1966.[39]
Although,
individuals as a general rule lack standing to assert violations of the above
treaties in the absence of the protest by the State of nationality, a wide
range of other treaties have enabled individuals to have direct access to
international courts and tribunals. Examples of such treaties are the
European Convention on Human Rights of 1950,[40] the American Convention on Human
Rights of 1969,[41] the International Convention on the
Elimination of All forms of Racial Discrimination of 1966,[42] and the Optional Protocol to the
International Covenant on Civil and Political Rights of 1966.[43]
In
conclusion, we can say that Contemporary International Law has recaptured the
concern for individuals, and individuals have become recognized as
participants and subjects of this law. This has occurred primarily
through the evolution of Human Rights Law and Humanitarian Law coming
together with the evolution of the Traditional International Law.
Individuals have a sort of legal personality under International Law; they
are granted certain rights and subjected to certain obligations directly
under International Law. International Law is applicable to relations
of States with individuals and to certain interrelations of individuals
themselves where such relations involve matters of international concern.
6. Minorities
The concern
of International Law, in the Twentieth Century, for individuals was
accompanied by another concern for minorities. The problem of protecting national
minorities in Europe confronted the League of Nations after the First World
War. The League assumed its responsibilities in the field of treaty-based
protection of minorities in Europe, in social matters, such as health and
fair labor standards.[44] After the Second World War
certain rights were granted to the individual members of ethnic, linguistic
and cultural minorities; they were granted the right to have their identity
and language respected by the State as part of the process of the development
of human rights in general. [45]
The rise of
ethno-nationalism after the collapse of the Soviet Union in 1991 brought back
the status of ethnic minorities and other groups in International Law to be
an important issue concerning the international community. Various
efforts have been made on the global and regional level to improve the legal
protection of minorities. On the Global level, there is “the United
Nations Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious and Linguistic Minorities of 1992”.[46] On the regional level, there
are “the European Charter for Regional or Minority Languages” adopted by “the
Council of Europe” in 1992, “the Framework Convention for the Protection of
National Minorities”[47] adopted by “the Council of Europe”
in 1995 and the creation of “the High Commission for National Minorities”
belonging to “the Conference on Security and Cooperation in Europe”.[48]
Despite all
these efforts that aimed to grant specific rights to minorities, the question
remains, what legal status should be accorded to minorities in International
Law? Do minorities have international legal personality?
There is no
clear answer to these questions. Actually, the problem of minorities is
very complicated because it involves political and legal dimensions related
to the meaning and legal consequences of the principle of self-determination
that may lead to loss of the concerned State part of its territory and its
control over part of its population and to the possible outside intervention
in its domestic affairs.[49] For this reason, it is no
accident that in the development of International Law since the Second World
War, the rights of minorities have been conceived as a category of human
rights which are to be exercised by the individual belonging to a minority,
rather than as group rights attributed to a collective entity as such.[50]
7. Indigenous Peoples
In recent
years, a special issue related to a category of the so-called “indigenous
peoples” has been raised. Examples of indigenous peoples are the Aborigines
in Australia, the American Indians, the Eskimos and the Maori in New
Zealand. Despite the attempts by the United Nations to recognize group
rights to indigenous peoples, it is still regarded as a specific category of
minorities with special needs and having a particular relationship to their
traditional territory.
In
conclusion, we can say that minorities and indigenous peoples are not
subjects of International Law in any meaningful sense of the term and that they
have not achieved an international legal personality. They may receive
guarantees of certain levels of treatment under international treaties, but
it does not follow that they as such have legal personality.
International Law does not attribute rights to minorities and indigenous
peoples as an entity, but rather to individual members of
them.
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State Responsibility
State
responsibility is one of the fundamental principles of International Law.
It arises out of the international legal system and the principles of State
sovereignty and equality of States. It implies that if a State commits an
internationally wrongful (unlawful) act against another State, it will be
internationally responsible for reparation.[2]
The subject
of State responsibility has been the most difficult question of the
codification work of the International Law Commission (ILC).[3] The ILC has been working
extensively on this subject. In 1975, the ILC initiated its work on the
draft articles concerning State responsibility. The Articles on the
State Responsibility was finally adopted by the ILC on August 9, 2001.[4] The General Assembly adopted
the resolution 83/56 of December 12, 2001, taking note of “the International
Law Commission’s Articles on the State Responsibility” and recommending it to
the member States of the United Nations. The ILC Articles, in addition
to the State practice and the decisions of international tribunals (the case
law) on the subject, constitute the international law of State
responsibility.
The law of
State responsibility is concerned with the nature of the State
responsibility, the legal consequences resulted from, and the implementation
of such responsibility.
Section 1: The Basis and
Nature of State Responsibility
State
responsibility is founded on three basic elements.[5] The first element is the
existence of an international legal obligation in force between the concerned
States. The second is the occurrence of a wrongful act or the omission
of an act in violation of such an obligation, which is imputable to the
State. The third is that loss or damage has resulted from such wrongful
act or omission. These three elements are the requirements of establishing
the responsibility of the State, which have been made in a number of leading
international legal cases and reiterated by the ILC “Articles”.[6] The “Articles” provides that
every internationally wrongful act (a delict) of a State entails
responsibility.[7] It defines internationally
wrongful act as a conduct consisting of an action or omission attributable to
the State under International Law and constitutes a breach of an
international obligation of the State.[8] A breach of an international
obligation is defined as an act which is not in conformity with what is
required of the State by that obligation, regardless of its origin or character.[9]
Responsibility is the necessary corollary of a right. All rights of an
international character involve international responsibility.
International Law does not distinguish between contractual (conventional) and
tortious responsibility. International responsibility relates both to
breaches of treaty and to other breaches of legal duty.[10] Any violation by a State of
any obligation of whatever origin or character gives rise to State
responsibility and consequently to the duty of reparation. Reparation
therefore is the indispensable complement of a failure of a State to apply
any of its obligations.
State
responsibility only arises when the act or omission which constitutes a
breach of legal obligation is imputable (attributable) to a State.[11] It may be founded on “fault”
or “no fault” concept.
Notably, it
is important to mention here that a State is responsible for wrongful acts
which constitute international delicts, not international crimes.
Because of the controversy concerning State responsibility for international
crimes, the ILC Articles does not mention international crimes.
However, the ILC Draft Articles made a distinction between international
crimes and international delicts. The Draft Articles provided that an
international wrongful act resulting from the breach of an international
obligation which was essential for the protection of fundamental interests of
the international community and which was recognized as a crime by that
community constituted an international crime; examples of such international
crimes were aggression, colonial domination, slavery, genocide, apartheid and
massive pollution of the atmosphere. [12] All other international
wrongful acts constituted international delicts.
While it is
apparent that a State is responsible for international delicts, it is not
clear that it is responsible for international crimes. The question of
State criminal responsibility has been highly controversial.[13] Some have argued that the
concept is of no legal value and cannot be justified.[14] Others have argued that since
1945 the attitude towards certain crimes committed by State has altered so as
to bring them within the scope of International Law. They have pointed
to three specific changes that have occurred since 1945 to justify States
responsibility for international crimes.[15] The first change has been the
development of the concept of peremptory norms of International Law (jus
cogens) as a set of principles from which no derogation is allowed.
The second change is the establishment of individual criminal responsibility
directly under International Law. Finally, the Charter of the United
Nations and its provisions concerning the enforcement action which may be
taken against a State in case of committing a threat to or breaches of the
peace or act of aggression. In the light of these changes, the ILC, in
its Draft Articles, adopted the approach of including international crimes by
States within the scope of International Law. However, because of the
controversy concerning this question, the ILC omitted any mention of international
crimes of States in its Articles as finally approved. The “Articles”
provides that States are under a duty to co-operate to bring an end, through
lawful means, any serious breach by a State of an obligation arising under a
peremptory norm of International law and not to recognize as lawful any such
situation.[16]
A. The Question of
“Imputability”
A State is
responsible (liable) only for its own acts or omissions. A State is
identified with its “government” which includes the executive, the
legislature and the judiciary, and includes central authorities as well as
local authorities.[17]
It is
established by the case law that a State is liable for the conducts of any of
its organs. This established rule is reiterated by the ILC
“Articles”. The ILC “Articles” provides that the conduct of any State
organ (including any person or entity) having that status under the internal
law of that State, whether that organ belongs to the constituent,
legislative, executive, judicial or other authority, whether its functions
are of an international or an internal character, and whether it holds a
superior or a subordinate position in the organization of the State, shall be
considered as an act of the State concerned under International Law, provided
that organ was acting in that capacity in the case in question.[18] The conduct of an organ
of a territorial governmental entity within a State shall also be considered
as an act of that State under International law, provided that organ was
acting in that capacity in the case in question.[19] The conduct of an organ of an
entity which is not part of the formal structure of the State or the
territorial governmental entity, but which is empowered by the internal law
of that state to exercise elements of governmental authorities, shall also be
considered as an act of the State under International Law, provided that
organ was acting in that capacity in the case in question.[20]
It is also
established that a State is liable for the acts of its officials if those
acts are imputable (attributable) to the State. This rule depends on the link
that exists between the State and the person or persons committing the
wrongful act or omission. The State as a moral legal entity, in reality
acts through authorized officials. It is not liable under International
Law for all acts of its officials; it is liable only for acts of its
officials that are imputable to it. Imputability is a legal notion
which assimilates the acts or omissions of the State officials to the State
itself and which renders the State liable for damages to persons or
properties resulting from such acts.[21]
The question
of “imputability”, however, creates problems when officials exceed or disobey
their instructions. Because the evading of liability by a State in such
a case will be unjust, it is established that a State is liable for the acts
of its officials, even when they exceed or disobey their instructions, if
those officials are acting with “apparent authority” or if they are abusing
“powers” or “facilities” placed at their disposal by the State.[22] The ILC “Articles” reiterates
such a rule by providing that the conduct of any organ of a State, having
acted in that capacity, shall be considered as an act of the State under
International Law even if such organ exceeded its competence according to
internal law or disobeyed instructions concerning its authority.[23]
With regard
of wrongful acts committed by private persons, in principle, a State is not
responsible for such acts. However, it is established by case law and
reaffirmed by the ILC Articles that a State is responsible for acts of
private persons if those persons are acting on behalf of that state, on its
instructions, under its control, or exercising elements of governmental
authority in the absence of governmental officials and under circumstances
which justify them in assuming such authority.[24] It is also responsible for acts
of private persons if such acts are accompanied by some act or omission on
part of the State, for which it is liable. Such act or omission by the
State may take one of the following forms: encouraging the person to perform
such act, failing to take reasonable care to prevent the person from
performing such act, failure to punish the person, obtaining some benefit
from the act of the person, or express ratification of the person’s act.[25]
With regard
of actions of rioters or rebels causing loss or damage to a foreign State or
its nationals, the general principle is that the State is not liable for such
actions if it has acted in good faith and without negligence.[26] However, in such a case, the
State is under a duty to show due diligence. Nevertheless, when the
rebellion movement succeeds in establishing the new government of a State or
a new State in part of the territory of the pre-existing State, it will be
held responsible for its activities prior to its assumption of authority;
this rule is reaffirmed by the ILC Articles.[27]
B. The Question of “Fault”
There are
two theories used as foundations for State responsibility: the “risk” theory
and the “fault” theory.[28] The “risk” theory is based
upon the principle of objective responsibility which maintains that the
liability of the State is strict. Once a wrongful act causing damage
has been committed by a State official or organ, that State will be
responsible under International Law to the injured State irrespective of its
intention. In contrast, the “fault” theory is based upon the principle
of subjective responsibility which requires the establishment of an element
of intention, fault or negligence on the part of the State official or organ
before rendering the State liable for any damage.
There is no
agreement in the International Law on the question of the basis of State
responsibility. The relevant cases and the opinions of legal scholars
are divided on this question. However, the majority of cases and
opinions tend towards the “risk” theory of responsibility.[29]
Section 2: Legal Consequences
of State Responsibility
A State is
responsible for its international wrongful act. This responsibility entails
certain legal consequences on that State. The first consequence is the
cessation of the wrongful act, and the second is the reparation.
A. Cessation of the Wrongful
Act
The first
legal consequence of State responsibility under International law is that the
wrongdoing State is obliged to cease the wrongful act, if it is continuing,
and to offer appropriate assurances and guarantees on non- repetition.[30]
B. Reparation
The second legal
consequence resulting from State responsibility for international wrongful
act is that the wrongdoing state is under a duty to remedy its acts.
The injured State is entitled for full reparation in form of restitution in
kind, compensation and satisfaction, either singly or in combination.[31] The wrongdoing State cannot
employ its internal law to avoid providing full reparation.
Restitution
in kind means that the wrongdoing State has to re-establish the situation
that existed before the committing of the wrongful act. It can be
provided if it is not materially impossible, not involving breach of an
obligation arising from a peremptory norm of general International Law, not
involving a burden out of all proportion to the benefit which the injured
State would gain from obtaining restitution in kind instead of compensation,
or not seriously jeopardize the political independence or economic stability
of the wrongdoing state.[32]
If
restitution in kind is not available, compensation for the damage caused must
be paid.[33] Monetary compensation covers
any financially assessable damage suffered by the injured state, and may
include interest, and may include, in certain circumstances, loss of profits.[34] It may be paid for both
material and non-material (moral) damage.[35]
Satisfaction
is the third form of reparation. It is a remedy which is appropriate in
cases of moral damage and non-monetary compensation. It may take the
forms of an official apology, a nominal damage, the punishment of the guilty
officials or the acknowledgement of the wrongful character of an act.[36]
Section 3: The
Implementation of State Responsibility
A State is
entitled to invoke the responsibility of another State if the obligation
breached is owed to it individually or to a group of States, including it, or
to the international community as a whole.[37] A State other than an injured
State may invoke the responsibility of another State if either the obligation
is owned to a group of States including it, and is established for the
protection of a collective interest of the group, or the obligation breached
is owed to the international community as a whole.[38] In such cases, a State may
demand the cessation of the wrongful act, assurances and guarantees of
non-repetition, satisfaction, as well as reparation. These doctrines
are reaffirmed in the ILC Articles.
Where several
States are injured by the same wrongful act, each State may separately invoke
responsibility.[39] Where several states are
responsible, the responsibility of each may be invoked.[40]
However,
responsibility can not be invoked if the injured State has validly waived the
claim, or it has caused, by reason of its conducts, in the lapse of the
claim.[41] Any waiver needs to be
explicit and clear.
An injured
State may seek to settle its claim peacefully through any of the peaceful
means, or it may take countermeasures against the wrongdoing State. In
a case of an injury affecting its national, the State may provide him with
diplomatic protection.
A State may
present an international claim against the wrongdoing State before an
international tribunal. However, a State has to establish its
qualifications for bringing the claim and the validity of the claim itself
before the merits of the claim can be addressed. Where a claim is
brought before an international tribunal, objections may be raised against
its admissibility. The first is an objection to the jurisdiction of the
tribunal; if successful, it will stop all proceedings in the case.
Other objections are the nationality of the claimant, the non-exhaustion of
local remedies, and the undue delay in presenting the claim.
A. Diplomatic Protection and
Nationality of Claims
The doctrine
of state responsibility with regard to injuries to nationals is based upon
the attribution to one State of the wrongful act or the omission and the
capacity of the other State to adopt the claim of its injured national.[42] Nationality is the link
between the individual and his State as regards particular benefits and
obligations. It is also the link between the individual and the
benefits of International law. Although International Law is now
tending to grant certain rights to individuals apart of the intervention of
the State, the basic rule remains that in a State-oriented world, it is only
through the State the individual may obtain the full range of benefits
available under International Law, and nationality is the key.[43]
Although a
State is under a duty to protect its nationals, it is not under a duty to
provide them with diplomatic protection.[44] A State may provide diplomatic
protection to its nationals. Diplomatic protection consists of
resorting to diplomatic action or other means of peaceful settlement by a
State adopting in its own rights the cause of its nationals in respect of an
injury to any of its national arising from an internationally wrongful act of
another State. Such diplomatic protection is not a right of the
national concerned, but a right of the State which may or may not choose to
exercise.[45]
The diplomatic
protection is the result of the historical reluctance to permit individuals
the right in International Law to bring claims against foreign States, for
reasons related to the principles of state sovereignty and non-intervention
in domestic affairs of a State. The exercise of diplomatic protection
is not regarded as intervention contrary to International Law.[46] A State may take up the claim
of its national against another state before an international tribunal.
Once a State does this, the claim then becomes that of the state, not of the
injured individuals. Thus, the State may waive its claim, but the
individual cannot.
In
International law, the normal and important function of nationality is to
establish the legal interest of a State when its national suffers injury or
loss caused by another State. The subject matter of the claim is the individual
and his property, and the claim is that of the State. If the plaintiff
State cannot establish the nationality of the claim, the claim will be
inadmissible because of the absence of the legal interest of the
claimant. The “nationality of the claim” principle is well established
in customary International Law. However, there are certain exceptions
to the principle of the nationality of the claim. Examples of such
exceptions are the right of protection of an alien seaman on a ship flying
the flag of the protecting State, an alien in the service of the armed forces
of a claimant State, and stateless person or refuge who at the dates of the
injury and presentation of the claim is lawfully and habitually resident in
that state.
The
nationality must exist at the date of the injury, and should continue until
at least the date of the formal presentation of the claim.[47] Where an individual possesses
dual or multiple nationalities, any State of which he is a national may adopt
his claim against a third State. Where a case involves more than one
State of nationality, the State with which he has the more effective
connection may adopt his claim against the other State. As far as a
moral legal person (such as a corporation) is concerned, there must be some
tangible link between it and the State adopting its claim.[48]
|
The Law of Treaties
A treaty is a
written international agreement concluded between States or other persons of
International Law and governed by International Law, whether embodied in a
single instrument or in two or more related instruments and whatever its
particular designation.[2] In English, the term ‘treaty” is
used as a generic term embracing all kinds of international agreements in
written form. In addition to the term “treaty”, many other terms are
used, such as “accord”, “act”, “arrangement”, “charter”, “covenant”,
“convention”, “declaration”, “general act”, “pact”, “protocol”, “statute”, as
well as the term “agreement” itself. Whatever the appellation of the
agreement, it does not affect its validity under International Law.[3]
Treaties can
be traced back as far as the early-recorded history of Mankind. Evidence
for their existence has been found throughout the history. Treaties have been
the major legal instruments for regulating relations between States.
States concluded treaties in every conceivable subject. Ten of thousands
treaties have been registered with the United Nations since 1946. Until
1980, treaties had been governed by international customary law. In 1969,
the Vienna Convention on the Law of Treaties was signed, codifying and
developing existing customary rules; it came into force in 1980.
The 1969 Vienna Convention
on the Law of Treaties defines “treaty” 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.”[4] It further provides that it “does
not apply to international agreements concluded between States and other
subjects of international law or between such other subjects of international
law, or to international agreements not in written form”.[5] These provisions exclude
agreements between states which are governed by other than International Law,
agreements between States and international organizations or between
international organizations, and oral agreements. The reason for the
exclusion of these types of international agreements is to avoid complication
and complexity if they are included in a single convention with written
agreements between States, since the rules governing them differ in certain
aspects from the rules governing written agreements between States.
A special convention applicable to agreements between states and international
organizations, or between international organizations, namely “the Convention
on the Law of Treaties between States and International Organizations or
between International Organizations”, was signed in 1986.[6] However, this Convention has not
yet entered into force.
The following
sections are devoted to the rules applicable to the written agreements between
States as provided by the 1969 Vienna Convention on the Law of
Treaties. However, the rules provided by this Convention are not
inclusive; other rules existed under customary international law continue to
govern questions not regulated by the Convention.
Section 1: Conclusion of
Treaties
Treaties may
be concluded by States in any manner they wish. There are no obligatory
prescribed forms or procedures to be followed. Negotiating, formulating,
signing and adopting a treaty are subject to the intention and consent of the
contracting States. However, the 1969 Convention on the Law of Treaties
provides general rules applicable to the conclusion of treaties, rules
regarding the capacity and the competent persons to conclude treaties, the
adoption and authentication of the text of treaties, and the adoption of
treaties.
A. The Capacity to Conclude
Treaties
Under the
Convention, every State possesses capacity to conclude treaties. Since
States are represented by persons, the Convention provides rules to ensure that
persons representing States have the power to adopt or authenticate the text of
a treaty, or to express the consent of the State bound by a treaty. Such
persons must produce what is known as “full powers”. “Full powers” refers
to the document issued by the competent authority of the concerned State
certifying that the persons represent it. This requirement is necessary
to ensure the States parties to the treaty that they are dealing with the
competent persons. However, there are certain persons who need not to
produce the “full powers”. These persons are:
(1) Heads of States,
heads of governments and the ministers for foreign affairs, for the purpose of
performing all acts related to the conclusion of a treaty;
(2) Heads of
diplomatic missions, for the purpose of adopting the text of a treaty between
their States;
(3)
Representatives accredited by States to an international conference or to
international organization or one of its organs, for the purpose of adopting
the text of a treaty in that conference, organization or
organ.
B. Adoption and
Authentication of the Text of Treaties
Once a draft
of a treaty has been agreed upon by the competent persons, several stages need
to be followed before it becomes legally binding. First, the text of the
treaty has to be adopted. The adoption of the text of a treaty implies
that the form and content of the text of the proposed treaty are settled.
It takes place by the consent of all the States participating in its drawing
up, except the adoption at an international conference, which takes place by
the vote of two-third of the States present and voting, unless by the same
majority they decide to apply a different rule. The adoption of the text
of a treaty does not mean that the participating States have expressed consent
to be bound by the treaty, or that the treaty has been adopted.
Second, the
text of a treaty has to be authenticated. Authentication is a procedural
step whereby the text of the treaty is established as correct and genuine, and
not subject to alteration. It is necessary to enable the States parties
to the treaty to know definitively its content so that there will be no
confusion as to its exact terms. The authentication of the text of a
treaty takes place according to the procedure provided in the text or agreed
upon by the States participating in its drawing up. Failing such
procedure, authentication may take place by the signature, signature ad
referendum or initiating by the representatives of the participating
States.
C. The Adoption of
Treaties
A treaty has
to be adopted by the participating States to become binding upon them.
States adopt a treaty by giving their consent to it. The consent of the
States parties to a treaty is an essential factor because States are bound only
by their consent. The consent may be expressed by signature, exchange of
instruments constituting a treaty, ratification, acceptance, approval or
accession, or by any other means if so agreed.[9]
(1) Consent by signature
A State may be
regarded as consented to a treaty by signature when the treaty provides that
signature shall have that effect, when it is established that the negotiating
States were agreed that signature should have that effect, or when the intention
of the State to give that effect to the signature appears from the full powers
of its representatives or was expressed during the negotiation. Signing
the treaty means officially affixing the names of the representatives of the
contracting States.
The act of
signature is usually a formal event. Often in important treaties, heads
of States formally affix their signatures in a ceremony. Usually in
multilateral conventions, the representatives of the participating States sign
the treaties during a special closing session held for that reason.
(2) Consent by exchange of
instruments constituting a treaty
A State may be
regarded as consented to a treaty by an exchange of instruments constituting a
treaty when the treaty provides that the exchange of such instrument has that
effect, or when it is established that the States were agreed that the exchange
of the instrument should have that effect. Nowadays, often each State
signs an instrument constituting a treaty and sends it to the other State (or
States) for its signature.
(3) Consent by ratification,
acceptance or approval
The signing of
the treaty by the representative of a State is either a means of expressing the
final consent of the State to be bound by the treaty, or an expression of
provisional consent subject to ratification, acceptance or approval. The
effect of signature depends upon the terms of the treaty, the agreement of the
negotiating States or their intention. If the treaty is subject to
ratification (acceptance or approval), then it does not become binding until it
is ratified by competent authority of contracting State, namely the head of the
State. Ratification by the competent authority of the contracting
State is a step well established historically to ensure that the representative
of the State did not exceed his powers or instructions with regard to the
conclusion of the treaty. It allows a State to examine the provisions of
a treaty before undertaking formal obligations. Moreover, it enables a State,
in the period between signature and ratification, to pass the required
legislation or to obtain the required approval. The question of how a
state ratifies treaties is a matter for its internal law alone. The rules
related to ratification vary from State to State.
The consent of
a state to be bound by a treaty is expressed by ratification (acceptance or
approval) when the treaty provides for such consent to be expressed by means of
ratification, when it is established that the negotiating states were agreed
that ratification should be required, when the representatives of the State has
signed the treaty subject to ratification, or when the intention of the States
to sign the treaty subject to ratification appears from the full powers of its
representative or was expressed during the negotiation.
Ratification
occurs when instruments of ratification are exchanged between the contracting
States, or are deposited with the depositary. In the [13]case of multilateral treaty, it usually
provides that the instruments of ratification should be deposited with the
State or the international organization that is appointed by the treaty to act
as the depositary.
(4) Consent by accession
In addition to
signature and ratification, a State may become a party bound by a treaty by
accession. Accession is a formal acceptance of a treaty by a State
which did not participate in negotiating and signing it. It is possible
if the treaty provides that consent to it may be expressed by accession, if it
is established that the negotiating States were agreed that consent may be
expressed by accession, or if all the States parties to the treaty have
subsequently agreed that consent may be expressed by accession. Accession
has the same effects as signature and ratification combined. It is the
practice in the modern times that certain treaties remain open for accession by
particular States for some periods.
D. Reservation to a Treaty
It is well
established in the practice of States that a State has a capacity, when
becoming a party to a treaty, to accept most of the provisions of a treaty or
to object, for whatever reasons, to particular provisions of a treaty. This
capacity is reiterated by the Vienna Convention on the Law of Treaties which
states that a State may, when signing, ratifying, accepting, approving or
acceding to a treaty, formulate a reservation unless the reservation is either
prohibited by the treaty or incompatible with its object and purpose, or the
treaty permits only specified reservations. A reservation is defined by
this Convention as “a unilateral statement, however phrased or named, by a
State, when signing, ratifying, accepting, approving or acceding to a treaty,
whereby it purports to exclude or modify the legal effects of certain
provisions of the treaty in their application to that
State”.
The effect of
a reservation depends on whether it is accepted or rejected by the other
parties to a treaty, and this matter differs whether a treaty is bilateral or
multilateral one. A reservation to a bilateral treaty presents no problem
since it constitutes a counteroffer which may reopen the negotiation between
the two parties concerning the terms of the treaty; and unless the reservation
is accepted by the other party, no treaty will be concluded.
However, a reservation to a multilateral treaty causes a problem because it may
be accepted by some parties and rejected by others. In such a
case, the Convention on the Law
of Treaties provides that a reservation expressly authorized by a treaty does
not require any subsequent acceptance by the other contracting States unless
the treaty so provides, and that when it appears from the limited number of the
negotiating States and the object and purpose of a treaty that the application
of the treaty in its entirety between all the parties is an essential condition
of the consent of each one to be bound by the treaty, a reservation requires
acceptance by all the parties.
The Convention
requires that a reservation, an express acceptance of a reservation and an
objection to a treaty be formulated in writing and communicated to the
contracting States and other States entitled to become parties to the
treaty. However, an acceptance of a reservation by a State may be implied
if it has raised no objection to the reservation by the end of a period of
twelve months after it was notified of the reservation or by the date on which
it expressed its consent to be bound by the treaty, whichever is later.
An objection by another contracting State to a reservation does not preclude
the entry into force of the treaty as between the objecting and reserving
States, unless a contrary intention is definitely expressed by the objecting State.
Unless the
treaty provides otherwise, a reservation or an objection to a reservation may
be withdrawn at any time. In case of the withdrawal of a reservation the
consent of a State which has accepted the reservation is not required for its
withdrawal. It is required that the withdrawal of a reservation or of an
objection to a reservation be formulated in writing. Unless the treaty
provides otherwise, or it is agreed otherwise, the withdrawal of a reservation
or of an objection to a reservation becomes operative only when notice of it
has been received by the concerned State.
A
reservation established with regard to another party modifies for the reserving
State in its relations with that other party the provisions of the treaty to
which the reservation relates to the extent of the reservation, and modifies
those provisions to the same extent for that other party in its relations with
the reserving State. However, the reservation does not modify the
provisions of the treaty for the other parties to the treaty inter se,
i.e. in their relations with each other.
Section 2: Entry into Force,
Registration and Depositary of Treaties
The Convention
provides rules applicable to the entry into force of treaties as well as rules
applicable to registration and depositary of treaties.
A. Entry into Force of
Treaties
According to
the Vienna Convention on the Law of Treaties, a treaty enters into force in
such a manner and upon such date as it may provide or as the negotiating States
may agree. In the absence of any such provisions or agreement, a treaty
enters into force as soon as consent to be bound by that treaty has been
established for all the negotiating States. When the consent of a State
to be bound by a treaty is established on a date after the treaty has come into
force, the treaty enters into force for that State on that date, unless the
treaty provides otherwise.
Normally,
treaties specify that they will enter into force upon a certain fixed date or
after a determined period following the last ratification. Multilateral
treaties, usually, provide for entry into force upon ratification by a
specified number of States. However, even when the minimum required
number of ratifications is reached, the treaty enters into force only between
those States that have ratified it; it does not enter into force for other
States until they have also ratified it. The Vienna Convention on the Law
of Treaties, for example, provides that it will come into force on the
thirtieth day following the date of deposit of the thirty-fifth instrument of
ratification or accession.[17] Moreover, it provides that for
each State ratifying or acceding to the Convention after the deposit of the
thirty-fifth instrument of ratification or accession, the Convention shall
enter into force on the thirtieth day after deposit by such State of its
instrument of ratification or accession.
Nevertheless,
a treaty or a part of it may be applied provisionally pending its entry into
force if the treaty itself so provides, or the negotiating States have in some
other manner so agreed. But, unless the treaty provides otherwise
or the negotiating States have agreed otherwise, the provisional application of
a treaty or a part of it with respect to a State shall be terminated if that
State notifies the other States between which the treaty is being applied
provisionally of its intention not to become a party to the treaty.
B. Registration and Depositary
of Treaties
After the
entry of a treaty into force, the Vienna Convention requires that the treaty to
be transmitted to the Secretariat of the United Nations for registration or filling
and recording, as the case may be, and for publication. This requirement
follows the one provided for by the Charter of the United Nations.
Article 102 of the Charter provides that every treaty and every international
agreement entered into by any Member of the United Nations must, as soon as
possible, be registered with the Secretariat and published by it. Under
this article, non-registered treaty or agreement remains valid but the parties
to it may not invoke it before any organ of the United Nations, including the
International Court of Justice. This requirement is intended to prevent
States from entering into secret treaties and in general to ensure publicity
for treaties.
Treaties,
nowadays, are registered with the Secretariat of the United Nations which then
publishes them in the United Nations Treaty Series (UNTS). The UNTS
provides a useful source of reference for the conclusion and contents of
treaties.
In addition,
the Vienna Convention on the Law of Treaties requires the designation of
depositary of a treaty. This designation may be made by the negotiating
States, either in the treaty itself or in some other manner. The
depositary may be one State or more States, an international organization or
the chief administrative officer of the organization. The depositary has
functions of considerable importance relating to: keeping custody of the
original text of the treaty, any instruments, notifications and communications
related to the treaty; giving certified copies of the treaty and transmitting
them to the concerned States; receiving any signatures, instruments,
notifications and communications related to the treaty; and informing the
States parties to the treaty about the entry into force of the treaty.
Notably, the United Nations Secretariat plays a significant
role as depositary of multilateral treaties.
Section 3: Observance and
Application of Treaties
Once treaties
enter into force, they must be observed and applied by the parties.
Observance and application of treaties are subject to certain established
principles and rules.
A. Observance of Treaties
The Latin
principle “Pacta Sunt Servanda”, which means that treaties shall be
observed, is the fundamental principle of the customary law of treaties and the
very foundation of International Law. This principle is included in the
Preamble and Article 26 of the 1969 Vienna Convention on the Law of Treaties,
which states that “[e]very treaty in force is binding upon the parties to it
and must be performed by them in good faith.” Another long-standing
principle of customary international law included in Article 27 of the
Convention is that “[a] party may not invoke the provisions of its internal law
as justification for its failure to perform a treaty.”
According to
these two principles, the parties to a treaty are under a duty to observe the
treaty in good faith, and a duty not to invoke its internal law as
justification for failure to perform the treaty.
B. Application of Treaties
Under the
Vienna Convention on the Law of Treaties, the application of treaties is
subject to the following rules:
(1) Non-Retroactivity of
Treaties
The Vienna
Convention provides that the provisions of a treaty, unless a different intention
appears from the treaty or is otherwise established, do not bind a party to it
in relation to any act or fact which took place or any situation which ceased
to exist before the date of the entry into force of the treaty with regard to
that party. The general rule here is that a treaty does not operate
retroactively; any fact, action or situation must be assessed in the light of
the rules of law that are contemporary with it, not of the provisions of the
subsequent treaty, unless a contrary agreement so provides.
(2) Territorial Scope of
Treaties
The
Vienna Convention provides that unless a different intention appears from the
treaty or is otherwise established, a treaty is binding upon each party in
respect to its entire territory. This is a general rule, but it is
possible for a State to stipulate that the treaty will apply only to part of
its territory.
(3)Application of Successive
Treaties Related to the Same Subject Matter
Sometimes, it
happens that a party to a treaty subsequently enters into another treaty
related to the same subject matter, and that the provisions of the two treaties
are inconsistent; or it happens that the other party or parties to the second
treaty may or may not also be parties to the first treaty. These
situations raise certain problems which need to be resolved. Article 30
of the Vienna Convention lays down the rules which constitute the general guide
to be followed in resolving such problems. It is still possible, however,
for the parties themselves to resolve the raised problems by their mutual
agreement.
Under Article
30, the rights and obligations of States parties to successive treaties related
to the same subject-matter shall be determined in accordance with the following
rules:
a. When a
treaty specifies that it is subject to, or that it is not to be considered as
incompatible with, an earlier or later treaty, the provisions of that other
treaty prevail.
b. When all the
parties to the earlier treaty are parties also to the later treaty but the
earlier treaty is not terminated or suspended in operation, the earlier treaty
applies only to the extent that its provisions are compatible with those of the
later treaty.
c. When
the parties to the later treaty do not include all the parties to the earlier
one:
i.
as between States parties to both treaties, the earlier treaty applies only to
the extent that its provisions are compatible with those of the later treaty;
ii.
as between a State party to both treaties and a State party to only one of the
treaties, the treaty to which both States are parties governs their mutual rights
and obligations.
In case of
treaties concerning the same subject-matter and having incompatible provisions,
the presumption is that the later treaty prevails over the earlier
treaty. A treaty may provide expressly that it is to prevail over
subsequent incompatible treaties; this is the case of Article 103 of the
Charter of the United Nations which stipulates that “[i]n the event of a
conflict between the obligations of the Members of the United Nations under the
present Charter and their obligations under any other international agreement,
their obligations under the present Charter shall prevail.” Furthermore,
a particular treaty prevails over other treaties if it includes peremptory
norms of general international law (jus cogens), i.e. norms accepted and
recognized by the international community of States as a whole as norms from
which no derogation is permitted and which can be modified only by subsequent
norms of general international law having the same
character.
(4) Treaties and Third States
The Latin
principle “pacta tertiis nec nocent nec prosunt”, which means that a
treaty creates neither right nor obligation for third States (not parties to
the treaty) without their consent, is a general principle which constitutes
part of the customary international law.[24] The reasons for this principle
can be found in the fundamental principles of the sovereignty and independence
of States, which contemplate that States must consent to rules before they can
be bound by them. This principle is codified in article 34 of the 1969
Vienna Convention on the Law of Treaties as a general rule corollary of the
principle of consent and of the sovereignty and independence of States.
However, this Convention states certain exceptions to this general rule.
First, the
Convention provides that an obligation may arise for a third State from a
provision of a treaty if the parties to the treaty intend the provisions of the
treaty to be the means of establishing the obligation, and the third State
expressly accepts that obligation in writing. In such a case, the
obligation may be revoked or modified only with the consent of the parties to
the treaty and of the third States, unless it is established that they have
agreed otherwise.
Second, the
Convention provides that a right may arise for a third State from the provision
of a treaty if the parties to the treaty intend the provision to accord that
right either to the third State, or to a group of States to which it belongs,
or to all States, and the third State assents thereto, unless the treaty
provides otherwise. In such a case, the right may not be revoked or
modified by the parties to the treaty if it is established that the right has
not been intended to be revoked or modified without the consent of the third
State. In exercising such a right the third State is required to comply
with the conditions for its exercise provided for in the treaty or established
in conformity with the treaty. Third, the Convention provides that a rule
of a treaty may become binding upon a third State if it becomes a part of
customary international law.
An example of
a treaty imposes obligation upon non-party State is the 1815 agreement
concerning the neutralization of Switzerland. The apparent examples of
rules which are binding upon third States as customary international law are
the rules of the 1899 and 1907 Hague Conventions concerning land warfare, and
the principles stated in Article 2 of the Charter of the United Nations,
especially those related to the peaceful settlement of disputes and the
prohibition of resorting to threat or use of force. As far as rights conferred
upon third States by a treaty are concerned, there are many treaties containing
provisions in favor of third States (pactum in favorem tertii).
Examples of such treaties are the 1919 Treaty of Versailles which contains
provisions in favor of Denmark and Switzerland, and the 1888 Constantinople
Convention which contains provisions guaranteeing freedom of passage for ships
through the Suez Canal.
Section 4: Interpretation of
Treaties
Interpretation
of treaties is the most frequent focus of disputes arising with regard to
treaties. Because language is not a perfect means for expressing legal
rules, ambiguities and uncertainties in treaty-texts are common
phenomena. Thus interpretation of treaties has been a major task in International
Law. Obviously the parties to a treaty have competence to interpret a
treaty, but other entities may perform such a task. The treaty itself may
confer competence on an ad hoc tribunal, an international organ, or the
International Court of Justice (ICJ). The Charter of the United Nations
is interpreted by the organs of the United Nations, which may request advisory
opinions from the ICJ.
Interpretation
of treaties is a rational process of clarifying and elucidating the meaning of
unclear and ambiguous treaty provisions. Its purpose is to ascertain in
good faith the intention of the parties. It is governed by numerous
principles and rules developed by international tribunals, publicists, organs
of international organizations and diplomatic practice. Though, there is
no coherent and mandatory system of rules of treaty interpretation in
International Law.
The 1969
Vienna Convention on the Law of Treaties, however, lays down certain
fundamental rules and guidelines for treaty interpretation. It contains
specific provisions concerning general rules of treaty interpretation,
supplementary means of interpretation, and interpretation of treaties
authenticated in two or more languages.[26]
A. General Rules of
Treaty Interpretation
The
first general rule for treaty interpretation provided by the Vienna Convention
is that “[a] treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context and in
the light of its object and purpose.”[28] This rule is the textual
approach of treaty interpretation.
The context of
a treaty for the purpose of interpretation comprises, in addition to its text,
including its preamble and annexes, any agreement and instrument related to it
and made in connection with its conclusion. Together with the context of
a treaty, should be taken into account any subsequent agreement between the
parties regarding the interpretation of the treaty or the application of its
provisions, any subsequent practice in the application of the treaty which
establishes the agreement of the parties regarding its interpretation, and any
relevant rules of International Law applicable in relations between the
parties.
The second
general rule for treaty interpretation provided by the Convention is that “[a]
special meaning shall be given to a term if it is established that the parties
so intended.”[29] This is the “intention of the
parties” approach of treaty interpretation.
However, there
are other established approaches of treaty interpretation not provided for in
the Vienna Convention on the Law of Treaties. Among these approaches is
“the principle of effectiveness” which involves the interpretation of the terms
of a treaty in a way that will render the treaty most effective and
useful. This principle is of particular importance in the interpretation
of multilateral treaties establishing international organizations.
B. Supplementary Means of
Interpretation
The Vienna
Convention provides that “[r]ecourse may be had to supplementary means of
interpretation, including the preparatory work of the treaty and the
circumstances of its conclusion”,[31] when the meaning resulting from the
application of the above general rules needs to be confirmed, or when the
interpretation according to the said general rules leaves the meaning ambiguous
or obscure, or leads to a manifestly absurd or unreasonable result.
C. Interpretation of Treaties
Authenticated in Two or More Languages
In case of a
treaty authenticated in two or more languages, as often happens with
multilateral treaties, the Vienna Convention provides that when a comparison of
the authentic texts discloses a difference of meaning which the application of
the provided general rules and supplementary means of interpretation does not
remove, “the meaning which best reconciles the texts, having regard to the
object and purpose of the treaty, shall be adopted.”[33] Nevertheless, the
Convention provides that the treaty may provide or the parties may agree that,
in such a case, a particular text shall prevail.
Section 5: Amendment and Modification
of Treaties
Although
amendment and modification of treaties are two processes share a common aim
which is an alteration or revision of a treaty, they are two separate processes
accomplished by different manners and subject to different rules and
conditions. Amendment relates to a formal alteration or revision of
certain treaty provisions or the treaty as a whole, affecting all the parties
to that treaty. Modification relates to an alteration or revision of
certain treaty provisions as between particular parties only. Thus the
1969 Vienna Convention on the Law of Treaties deals with these two processes in
separate articles.
A. Amendment of Treaties
The Vienna
Convention refers to three manners to accomplish amendments to treaties.
The first manner is that a treaty may be amended by agreement between the
parties. In such a manner, the rules described by the Vienna Convention
which are related to the conclusion and entry into force of a treaty will be
applied.
The second
manner is that a treaty may be amended in accordance with the procedure laid
down in the treaty itself. Multilateral treaties, particularly those
establishing international organizations, normally provide detailed procedure
for amendments. The Charter of the United Nations, for example, lays down
in Articles 108 and 109 the procedure for its amendments and revision.
Under these Articles such amendments or revision shall take effect when adopted
and ratified by two-thirds of the members of the United Nations, including all
the permanent members of the Security Council.
The third
manner is that a treaty may be amended in accordance with the basic rules of
procedure described by the Vienna Convention. The Vienna Convention
specifies that any proposed amendment must to be notified to all contracting
States. All contracting States shall have the right to participate in the
decision as to the action to be taken in regard to such proposal, and in the
negotiation and conclusion of any agreement for the amendment of the
treaty. Every State entitled to become a party to the treaty is also
entitled to become a party to the treaty as amended. The amendment will
not bind any State already a party to the original treaty which is not a party
to the amending agreement. Any State which becomes a party to the treaty
after the entry into force of the amending agreement, unless it intends
otherwise, is considered as a party to the treaty as amended in relation to
parties bound by the amending agreement, and as a party to the unamended treaty
in relation to any party to the treaty not bound by the amending agreement.
B. Modification of Treaties
The Vienna
Convention provides that two or more of the parties to a multilateral treaty
may conclude an agreement to modify the treaty as between themselves alone if
one of two conditions is fulfilled. The first condition, if “the
possibility of such a modification is provided for by the treaty.”[36] The second condition, if “the
modification in question is not prohibited by the treaty” and provided it “does
not affect the enjoyment by the other parties of their rights under the treaty
or the performance of their obligation, and “does not relate to a provision,
derogation from which is incompatible with the effective execution of the
object and purposes of the treaty as a whole.”[37] The Vienna Convention requires,
however, that unless in the first mentioned case or if the treaty provides
otherwise, the parties in question must notify the other parties of their
intention to conclude the agreement and of the modification to the treaty.
Section
6: Termination and Suspension of the Operation of Treaties
Despite the
general rule that “[e]very treaty in force is binding upon the parties to it
and must be performed by them in good faith,”[38] the Vienna Convention provides that a
treaty may be terminated, denounced, withdrawn from or suspended. The
Convention provides that the termination of a treaty, its denunciation, the
withdrawal of a party or the suspension of its operation “may take place only
as a result of the application of the provisions of the treaty or of the
present Convention.”[39] The applicable rules to such
instances, provided by the Convention are as such:
A. Termination of a Treaty
Termination of
a treaty means the end of the operation of a treaty, resulting in depriving all
the parties of all the rights, and in releasing them from performing further
obligations, under the treaty. Under the Vienna Convention termination of
a treaty or the withdrawal of a party may take place either in conformity with
the provisions of the treaty, or at any time by consent of all the parties
after consultation with the other contracting States. Actually, most of
the modern treaties contain provisions for their termination or for the
withdrawal of a party. A treaty may provide that it shall come to
an end automatically after a certain time, or at the occurrence of a particular
event. A treaty may give a party a right to withdraw from it after giving
a certain period of notice.
Where a treaty
does not contain any provision regarding its termination and does not provide
for denunciation or withdrawal, it will not be subject to the denunciation or
withdrawal, unless it is established that the parties intended to admit such a
possibility, or such a right is implied by the nature of the treaty. In
such cases, however, a party must give at least twelve months’ notice of its
intention to denounce or withdraw from the treaty.
The Convention
specifies the reasons for terminating a treaty. First, a treaty may
be terminated by the conclusion of a later treaty related to the same
subject-matter, if it appears that the matter is to be governed by that treaty
or the provisions of the later treaty are so far incompatible with those of the
earlier one that the two treaties are not capable of being applied at the same
time. Second, a treaty may be terminated as a consequence of its
breach. A material breach of a treaty which consists in either a
repudiation of the treaty not permitted by the Vienna Convention or the
violation of a provision essential to the accomplishment of the object or
purpose of the treaty entitles the other parties to terminate the treaty.
Third, a treaty may be terminated by the impossibility of performance resulting
from the permanent disappearance or destruction of an object indispensable for
the execution of the treaty. Forth, a treaty may be terminated when
a fundamental change of circumstances occurs with regard to those existing at
the time of the conclusion of that treaty. Fifth, a treaty may be
terminated by reason of the severance of diplomatic or consular relations
between parties to the treaty. However, such event does not affect the
legal relations established between the parties except in so far as the
existence of diplomatic or consular relations is indispensable for the
application of the treaty. Finally, if a new peremptory norm of general
international law emerges, any existing treaty which is in conflict with that
norm terminates.
As regard the
consequences of termination of a treaty, the Convention provides that unless
the treaty provides otherwise or the parties agree otherwise, the termination
of a treaty releases the parties from any further obligation to perform the
treaty; however, it does not affect any right, obligation or legal situation of
the parties created through the execution of the treaty prior to its
termination.
B. Suspension of the Operation
of a Treaty
Suspension of
the operation of a treaty means the making of a treaty temporary inoperative in
regard to either all or a particular party. Under the Vienna Convention,
suspension of the operation of a treaty, like termination, may take place
either according to the provisions of the treaty or at any time by consent of
all the parties. Two or more parties to a multilateral treaty may
conclude an agreement to suspend the operation of provisions of the treaty,
temporary and as between themselves alone if “the possibility of such a
suspension is provided for by the treaty,” or “the suspension in question
is not prohibited by the treaty” and provided it “does not affect the enjoyment
by the other parties of their rights under the treaty or the performance of
their obligation,” and “is not incompatible with the object and purposes of the
treaty.[42] However, unless the treaty
provides otherwise, the parties in question must notify the other parties of
their intention to conclude the agreement and of those provisions of the treaty
the operation of which they intend to suspend. Treaties sometimes provide for
the possibility of suspension of the entire treaty or some of its provisions in
particular circumstances.
Under the
Convention, a treaty may be suspended by the following circumstances: 1)
the conclusion of a later treaty related to the same subject matter, if it
appears from the later treaty or otherwise established that such was the
intention of the parties; 2) a material breach of a treaty which consists in
either a repudiation of the treaty not permitted by the Vienna Convention or
the violation of a provision essential to the accomplishment of the object or
purpose of the treaty; 3) the temporary impossibility of performing a treaty;
or 4) a fundamental change of circumstances occurs with regard to those
existing at the time of the conclusion of that
treaty.
Suspension of
the operation of a treaty releases the parties from any further obligation to
perform the treaty during the period of suspension; however, it does not affect
any right, obligation or legal situation of the parties created through the
execution of the treaty prior to its suspension.
Section 7: Invalidity of
Treaties
Invalidity of
a treaty means nullity of a treaty or its particular provisions because of the
existence or absence of certain circumstances or conditions affecting its legal
status. Customary international law does not provide clear and acceptable
rules governing validity or invalidity of treaties. The 1969 Vienna
Convention on the Law of Treaties, however, provides some general rules on this
matter. This Convention describes rules governing invalidity of treaties
in general, grounds for invalidity of treaties, and consequences of the
invalidity of treaties.
A. General
Rules on Invalidity of Treaties
The Vienna
Convention on the Law of Treaties provides that “[t]he validity of a treaty or
the consent of a State to be bound by a treaty may be impeached only through
the application of the present Convention.”[44] Under the Convention, a ground
for invalidating (as well as for terminating, withdrawal from or suspending the
operation of a treaty) may be invoked only with respect to the whole treaty,
except where the ground relates solely to particular clauses which are
separable and unessential, or relates to a material breach of a treaty by one
of the parties. A State cannot invoke a ground for invalidating (as well
as for terminating, withdrawal from or suspending the operation of a treaty)
if, after becoming aware of the fact, it expressly agreed that the treaty is
valid or remains in force, or it, by reason of its conduct, may be considered
as having acquiesced in the validity of the treaty or in its continuance in
force or in operation.
B. Grounds
for Invalidating Treaties
The Vienna
Convention specifies the following grounds for invalidating treaties:
1) Manifest
violation of a provision of fundamental importance of State’s internal law
regarding competence to conclude treaties:[45] A violation is manifest “if it
would be objectively evident to any State conducting itself in the matter in
accordance with normal practice and in good faith.”[46]
2) Lack of the
State’s representative appropriate full powers.
3) Excess of
authority by the representative:[48] Such an excess will be a ground
to invalidate a treaty if the specific restriction imposed by the State upon
its representative to express its consent to be bound by the treaty was
notified to the other negotiating States prior to his expressing such
consent.
4) Error:[49] A State may invoke an error in a
treaty as invalidating its consent to be bound by the treaty if the error
relates to a fact or situation mistakenly assumed by that State to exist at the
time when the treaty was concluded, and that fact or situation forms an
essential basis of its consent to be bound by the treaty. If the State in
question contributed by its own conduct to the error or if it was put on notice
of a possible error, it is not allowed to invoke such an error as a ground for
invalidating its consent. An error relating only to the wording of the
text of a treaty does not affect its validity.
5) Fraud:[50] A State may invoke the fraud as
invalidating its consent to be bound by the treaty if it has been induced to
conclude that treaty by the fraudulent conduct of another negotiating State.
6) Corruption
of a representative of a State:[51] A State may invoke the
corruption of its representative as invalidating its consent to be bound by the
treaty if the expression of its consent has been procured through the
corruption of its representative directly or indirectly by another negotiating
State.
7) Coercion of
a representative of a State:[52] Acts or threats directed
personally against a representative of a State as an individual in order to
procure the expression of a State’s consent to be bound by a treaty render such
expression of consent without any legal effect.
8) Coercion of
a State by the threat or use of force:[53] A treaty is void if its
conclusion has been procured by the threat or use of force in violation of the
principles of International Law embodied in the Charter of the United Nations.
9) Conflict of
the treaty with an existing and emerging peremptory norm of general
International Law (Jus Cogens):[54] A treaty is void if, at the time
of its conclusion, it conflicts with a peremptory norm of general International
Law. If a new peremptory norm of general International Law emerges, any
existing treaty conflicting with that norm becomes void and
terminated.
C. Consequences of Invalidity
of Treaties
The consequences of
invalidity of treaties vary according to the nature of the ground of
invalidity. The Vienna Convention makes a distinction between void and
voidable treaties. In cases of lack of full powers, coercion of a
representative, coercion of a State and conflict with an existing and emerging of
peremptory norm of general international law, the treaty is void, which means
that the expression of consent of the State to be bound by the treaty is
without any legal effect from the beginning (ab initio). In cases
of violation of the internal law of the State, excess authority by the
representative, error, fraud, and corruption of the representative, the treaty
is probably voidable rather than void; the treaty is valid until the State
claims that it is invalid. The State may invoke the ground to invalidate
the treaty. However, this right may be lost for the following reasons:
(a) if after becoming aware of the fact, the concerned State expressly agreed
that the treaty is valid or remains in force or it, by reason of its conduct,
may be considered as having acquiesced in the validity of the treaty or in its
continuance in force or in operation; or (b) if the concerned State contributed
by its own conduct to the error or was put on notice of a possible error.
The Convention provides that an invalid treaty is void and without any legal
effect. If acts have nevertheless been performed in reliance on such a
treaty, each party may require any other party to establish as far as possible
in their mutual relations the position that would have existed if the acts had
not been performed. Acts performed in good faith before the invalidity
was invoked are not rendered unlawful by reason only of invalidity of the
treaty.
Section 8: Procedures to be
Followed with Respect to Invalidity, Termination, Withdrawal from,
or Suspension of the
Operation of a Treaty
The Vienna
Convention provides that a party invoking a ground to invalidate a treaty,
terminate it, withdraw from it or suspend its operation, must notify, in
writing, the other parties of its claim and give them time to make objections
before it takes any action. If after the expiry of a period which shall
not be less than three months from the receipt of the notification, no
objection has been raised by any party, the party making the notification may
carry out the measures it has proposed. If, however, objection has been
raised by any party, the parties must seek a solution through the peaceful means
indicated in Article 33 of the Charter of the United Nations.
If no solution
is reached within twelve months, the dispute is to be submitted to a special
conciliation commission set up under an annex to the Convention or, in cases of
dispute involving peremptory norms of general International Law to be submitted
to the International Court of Justice (ICJ).
8.
Recognition
|
Recognition
International community is a living entity in the sense that it is changeable.
The identity and number of States are by no means fixed and invariable.
History produces many changes. Old States disappear or unite with other
States to form a new State, or disintegrate and split into several new
States. Former colonies attain statehood. Even in the case of
existing State, a revolution or unconstitutional event may occur and the
status of new government becomes a matter of concern to other States, which
formerly had relations with the displaced government. These instances
raise several problems for the international community. The most important
problem is the question of recognition of the new State or the new
government. Each State has to decide whether to recognize the new State
or the new government.
Recognition
involves legal consequences both internally and internationally.
If an entity is recognized as a State, it will be entitled to rights and
subjected to duties that would not be relevant otherwise, and it will enjoy
privileges and immunities of a foreign State, before the national courts,
which would not be allowed to other entities.
What is
recognition? Why and how is it granted? What are the types and
forms of recognition? What are the legal consequences generated from
recognition?
The answers
to all these questions are dealt with in the following sections.
Section 1: Definition and
Nature of Recognition
Recognition
is a discretionary unilateral act exercised by the government of a State
officially acknowledging the existence of another State or government or
belligerency.[2] It is one of the most difficult
subjects of International Law. It is a complicating mixture of politics
and laws both national and international. It is difficult mainly for
the following three reasons.
(1)
Recognition is, as the practice of States shows, much more a question of
politics than of law. The act of the recognizing State is conditioned
principally by the necessity of protecting its own national interests, which
lie in maintaining proper relations with the new State or the new
government. However, there is an irresistible tendency of the
recognizing State to use legal principles as a convenient camouflage for
political decisions. For this reason, recognition is considered to be a
political act with legal consequences.
(2)
In form and in substance, recognition remains primarily a unilateral
diplomatic act on the part of the recognizing State. No collective
procedure for granting recognition based on established legal principles has
yet been evolved by the international community.
(3)
There are several distinct categories of recognition. There are the
recognition of a new State, a new government and belligerency. In
addition there are de jure, de facto, conditional, implied and
express recognition. Although the same principles may be applicable to
some of these types, it is still that each of them is subject to different
legal principles and entails different legal consequences.
Basically,
there are two theories as to the nature, functions and effects of
recognition, the constitutive theory and the declaratory theory.[3] The constitutive theory
considers that the act of recognition by other States creates a new State and
grants it the international legal personality.[4] This implies that the new State is
established as an international person by virtue of the will and consent of
already existing States. In case of a new government, it is the
recognition that grants it the status at the international level.
The
Constitutive theory is opposed by the declaratory theory. According to
the declaratory theory, recognition has no legal effects; statehood or the
status of a new government exists as such prior to and independently of
recognition.[5] The existence of a State or a new government
is a question of pure fact. The act of recognition is merely a formal
acknowledgement of established facts. When an entity satisfies the
requirements of a State objectively, it is a State with all international
rights and duties, and other States must treat it as such.
Historically, the constitutive theory has its merits.[6] During the Nineteenth Century,
International Law was regarded as applying mainly between States with
European civilization. Other countries were admitted as States to this
community only if they were recognized by those member States. Even today,
recognition can sometimes have a constitutive effect, although State practice
is not always consistent. When the establishment of a new State or
government is in violation of International Law, this State or government is
often regarded as having no legal existence until it is recognized.
However, the
prevailing view today is that recognition is declaratory and does not create
a State.[7] This view was laid down in the
Montevideo Convention on the Rights and Duties of States of 1933.
Article 3 of this Convention provides that “The political existence of the
state is independent of recognition by the other states. Even before
recognition the state has the right to defend its integrity and independence”.
Actually,
the two theories are of little assistance in explaining recognition or
determining the status of non-recognized entities in practice.[8] In addition, the practical
differences between these two theories are not significant. Under the
declaratory theory, the decision whether an entity satisfies the criteria of
statehood is left to other States, and the granting formal recognition to
another State, which is a unilateral act, is left to the political discretion
of States. On the other hand, the significance of the constitutive
theory has diminished because of the obligation imposed on States to treat an
entity that satisfies the criteria of statehood as a state. Moreover,
the States practice regarding recognition shows that States follow a middle
position between these two theories.
Section 2: Types and Forms
of Recognition
There are
several distinct categories of recognition. There are recognition of a new
State, recognition of a new government and recognition of belligerency.
In addition there are different entities to be recognized.
Recognition itself may take different forms. Recognition may be de
jure or de facto. Recognition may be express or
implied. It may be conditional.
(A) Recognition of a State
and of a Government
When a new State
comes into existence, other States are confronted with the question whether
or not to recognize it. Recognition implies a willingness of the recognizing
State to deal with the new state as a member of the international community.
To grant recognition to a new entity, the entity must satisfy the basic
requirements of statehood, which have been discussed in the previous
chapter. The first example of State recognition in the history of
nations was the recognition in 1648 by Spain of the United Netherlands.[10]
Recognition
of a State defines its membership in the world community, and consequently
supports its claim as an international person. It allows the recognized
State to exercise the rights and duties of a State under International Law.[11] Recognition of a new State
automatically involves recognition of its government, although the latter may
be recognized only de facto.
Recognition
of a new government is quite different from the recognition of a new State,[12] although in principle most of the
considerations whether legal or political apply equally to both types of
recognition. As far as a State is concerned, the satisfaction of basic
requirements of statehood is examined by the recognizing State before
granting its recognition to the new State. Recognition of a new
government requires its satisfaction of certain conditions such as
effectiveness and independence. Notably, the existence of an effective
and independent government is the essence of statehood. By recognizing
a government, the recognizing State accepts to deal with this government as
the governing authority of the State and grant it the legal consequences of
such status in terms of privileges and immunities within its domestic legal
system. In both these types of recognition, we should not forget the
great role played by political considerations in the decision whether or not
to grant recognition.
The granting
or refusal of recognition of a government has no effect on the recognition of
a State itself. Recognition of a State affects its legal personality,
whether creating or acknowledging it, while recognition of a government
affects its status as the governing authority, not the State. A subsequent
government may not be recognized, even though the recognition of a State is
permanent as regard to its existence and its status as a legal person under
International Law. If the government of a State is changed in
accordance to constitutional processes, no problem of recognition arises as
long as the new government is firmly in power and secures stability in the
country. In this case, recognition by other States is purely a matter
of formality. The problem of recognition of a new government arises in
cases when changes occur as a result of an unconstitutional practice or a
revolution. The recognition of the revolutionary government is a
serious problem and the decision thereon is made with great care. On
this matter, no definite legal principles are established and the practice of
States is inconsistent and confused. However, certain rules have been
recognized to cover recognition of illegal changes in government.[13] Such rules imply the
acceptance of the realities of the transfer of power and suggest that once a
new government effectively controls the country and that this seemed likely
to continue, recognition should not be withheld.
(B) Recognition of
Belligerency
Belligerency
exists when a portion of the State’s territory and population is under the de
facto control of insurgents seeking either to establish a separate State
or to overthrow the existing government. To be recognized as
belligerents, the insurgents must have a political organization able to
exercise such control and maintain some degree of popular support, and
conduct themselves according to the laws of war. Accordingly,
recognition of belligerency is a formal acknowledgement by third-party States
of the existence of a state of war between the State’s central government and
a portion of that State. This implies that the recognizing State
recognizes that a revolt within another State has attained such a magnitude
as to constitute in fact a state of war, entitling the revolutionists or
insurgents to the benefit, and imposing upon them the obligations, of the
laws of war. Two conditions should exist before a third-party State
grant belligerent recognition, the insurgency has progressed to a state of
general war and the effects of this war have gone beyond the borders of the
State to affect other States. By this recognition, the insurrectionary
movement is elevated to the status of a quasi-international person having
certain rights and duties under International Law. This sort of international
personality is both nonpermanent and particular. It is nonpermanent,
because the insurrection may fail. It is particular, because it exists
only for the recognizing States.
Recognition of belligerency was accorded during most of civil wars of the
Nineteenth Century, such as the revolts of the Spanish-American colonies and
the American Civil War, and during most of the wars of independence of the
Twentieth Century.
To grant
recognition of belligerency, the recognizing State is always dictated by the
primary motive, which is to protect and promote its national interests.
The recognizing State may intend either to get the status of neutrality
between the belligerent parties or to support the legitimacy of the
insurrection.
(C) De Jure
and De Facto Recognition
The practice
of States draws a distinction between de jure and de facto recognition.
This distinction usually arises in the case of governments since States can
normally be recognized only de jure, although there have been few
cases of recognizing States de facto. For example, Indonesia was
recognized de facto by several States while it was fighting for
independence against Netherlands during 1945-1949.[16]
De jure recognition means
that according to the recognizing State the recognized State or government
fulfils the requirements laid down by International Law. De facto
recognition means that in the opinion of the recognizing State, with all due
reservations for the future, the recognized State or government provisionally
and temporarily fulfils the above requirements in fact. As such, de
facto recognition is provisional and temporary and could be withdrawn at
any future date, although it is usually followed by de jure
recognition. Notably, the terms de jure and de facto
describe the government, not the act of recognition. Choosing the
type of recognition to be granted, the recognizing State is always occupied
by political realities and considerations as well as its national interests.
De facto
recognition of a government implies that there is a doubt as to the
permanence and viability of the concerned government. De facto
recognition involves a hesitant position by the recognizing State, an
attitude of wait and see, which is usually followed by de jure
recognition when the recognizing State accepts that the effective control
exerted by the government in question is permanent and firmly established and
there is no legal basis for withholding the de jure recognition.
De facto
recognition may be a preface stage to the de jure recognition,
particularly in cases of governments coming into power by unconstitutional
processes. In such a case, de facto recognition is a
non-committal act whereby the recognizing State acknowledges that there is a de
facto government possessing in fact the powers of sovereignty, but such
possession may be illegal, unstable or nonpermanent. At a later stage
when the need for reservations no longer exists because the permanence of the
de facto government is completely assured, de jure recognition
is formally granted. For example, United Kingdom recognized the Soviet
government first de facto in 1921 and later de jure in 1924.[17] During the Spanish Civil War
(1936-1939), United Kingdom granted recognition to the two rival parties, de
jure recognition to the Republican government and de facto
recognition to General Franco’s government that gradually took over the
country and its recognition turned into de jure.[18] During 1988-1991, most States
recognized the two rival governments in Lebanon de facto until the
ending of the insurrection led by General Aoun, and then the government of
Salim Al Huss was accorded de jure recognition.
When
recognition is granted by an express statement, it should always be regarded
as de jure recognition, unless the recognizing State provides
otherwise. When recognition is implied, there will often be uncertainty
as to the intention of the recognizing State whether granting de jure
or de facto recognition.
Choosing the
type of recognition to be granted, the recognizing State is occupied mostly
with political realities and considerations as well as own national
interests, and to a lesser degree with legal considerations. A statement that
a government is recognized as de facto may, on one hand, involve a
purely political judgment, involving either a reluctant or cautious
acceptance of an effective government, lawfully established according to
International Law, or an unwarranted acceptance of it as a de jure
government. It may, on the other hand, be intended to be or to include
a legal determination of the existence of an effective government, but with
reservations as to its viability and permanence. It may, of course,
happen that the legal and political considerations for caution
coincide. The distinction between these two types of recognition is
insubstantial, since it is a question of intention, not of a legal
matter. However, it is considered that de jure recognition is
irrevocable while de facto recognition can be withdrawn.
Actually, in the political sense recognition of either type can always be
withdrawn, while in the legal sense it cannot be unless a change of
circumstances warrants such withdrawal.
Whatever the
basis for the distinction between de jure and de facto
recognition, the effects of the two types are mostly the same.
Nevertheless, there are certain important differences between these two
types, which are:[19]
(a)
Only the de jure recognized State or government can claim to receive
property locally situated in the territory of the recognizing State.
(b)
Only the de jure recognized State or government can represent the old
State for the purposes of State succession or with regard of espousing any
claim of its national for injury done by the recognizing State in breach of
International Law.
(c)
The representatives of the de facto recognized state or government may
not be entitled to full diplomatic immunities and privileges.
Whatever the
type of recognition, once given may in certain circumstances be
withdrawn. Actually, this is more easily done with regard to de
facto recognition than to de jure recognition, because of the
nature of the former one, which is temporary. De facto
recognition is intended to be a preliminary acceptance of political realities
and may be withdrawn in accordance with a change in political
conditions. When a de facto government loses its effective
control over the country, the reason for recognition disappears and it may be
withdrawn. De jure recognition, on the other hand, because it is
intended to be generally a definitive act, it is more difficult to be
withdrawn. When a government recognized de jure is overthrown, a
new situation arises and the question of recognizing a new government will
have to be faced. In such instance, the withdrawal of recognition of
the overthrown government is assumed; it does not have to be expressed.
Withdrawal of recognition of one government without recognizing a successor
is a possibility. This approach, for example, was adopted by the United
Kingdom and France with regard to Colombia in 1979.[20]
Withdrawal
of recognition remains possible in other circumstances. The loss of one
of the required criteria of statehood will result in the withdrawal of
recognition of a State. Recognition of belligerency will naturally
terminate with the end of the state of belligerency.
Because
recognition is essentially a political act, no matter how circumscribed or
conditioned by the law, a State has a discretionary power to determine
whether a particular situation justifies a withdrawal of recognition and to
take such action if it serves its national interests.
Notably, we
must not confuse the withdrawal of recognition with the rupture in the
diplomatic relations. In the practice of States, the usual method of expressing
disapproval with the actions of other governments is to break diplomatic
relations, since this method does not entail the legal consequences and the
problems that the withdrawal of recognition would produce.
(D) Express and Implied
Recognition
Recognition
is essentially a matter of intention.[22] It is founded upon the will
and intention of a State.[23] It may be express or
implied.[24] The mode by which recognition
is accomplished is of no special significance. It is essential,
however, that the act constituting recognition must give a clear indication
of the intention either to deal with the new State as such, or to accept the
new government as the effective government of the State and to maintain
relation with it, or to recognize in case of insurgents that they are
entitled to belligerent rights.
Express
recognition indicates the acknowledgment of the recognized State by a formal
declaration. In the practice of States, this formal declaration may
happen by either a formal announcement of recognition, a personal message
from the head of a State or the minister of foreign affairs, a diplomatic
note, or a treaty of recognition.
Recognition
needs not to be express. It may be implied in certain circumstances.[25] There are circumstances in
which it may be possible to declare that in acting in a certain manner, one
State does by implication recognize another State or government. However,
because of this possibility, States may make an express declaration to the
effect that a particular action involving another State is by no means to be
regarded as inferring any recognition. This position, for example, was
maintained by Arab States with regard to Israel.[26]
Implied
recognition is recognition of a State or a government through actions other
than official declarations or actions intended to grant recognition. The
required actions for implied recognition must be unequivocal, leaving no doubt
of the intention of the State performing them to recognize the State or
government and to deal with it as such. There is a variety of actions
undertaken by a State in regard to an unrecognized State or government.
Some actions are conclusively regarded implying recognition, while others are
not. Included in the first category are the official congratulatory
statements upon independence, the formal establishment of diplomatic
relations and the conclusion of a bilateral treaty.[27] The actions that do not
conclusively imply recognition are the participation in multilateral treaty,
the membership in international institutions, the common participation in
international conference, the maintenance of informal and unofficial
contacts, the initiation of negotiations with an unrecognized state, and the
making of claims against an unrecognized State.[28]
(E) Conditional Recognition
The
political character of recognition is manifested in what is termed
conditional recognition. Sometimes States are recognized subject to
certain conditions, generally the fulfillment of certain obligations.
Examples of such conditions are: the respect and the guarantee of the rights
of ethnics, national groups and minorities; the respect of religious
freedoms; and the respect of the rule of law, democracy and human rights.[30]
The failure
to fulfill the obligations does not annul the recognition, as once given it
cannot be withdrawn.[31] The status obtained by the
recognized State from the act of recognition cannot be withdrawn. The
recognized State will be guilty of a breach of International Law, and this
will allow the recognizing State to severe diplomatic relations as a form of
sanction.[32] However, the conditional
recognition of a State or government in process of emerging is probably
revocable.
Section 3: Legal Effects of
Recognition
Although
recognition is essentially a political act, it is one that entails important
legal consequences. Recognition involves legal effects both in the
international level and in the domestic level. If an entity is
recognized as a State, it will be entitled to rights and subjected to duties
that would not be relevant otherwise, and it will enjoy privileges and
immunities of a foreign State before the national courts of other States,
which would not be allowed to other entities.
What are the
effects of recognition? Are there effects for
non-recognition? The Answers to these two questions are dealt
with in the following sub-sections.
(A) International effects of
recognition[33]
Apart of all
the theoretical arguments involving the constitutive and declaratory
theories, it is accepted that recognition of a State or government is a legal
acknowledgement of factual situations.[34] Recognition entails the
recognized State the enjoyment of rights and the subjecting to duties
prescribed in International Law for States (these rights and duties are
discussed in the previous chapter).
Recognition
of a State by another State does not lead to any obligation to establish
diplomatic relations or any other specific links between them. Nor does
the termination of diplomatic relations automatically lead to withdrawal of
recognition. These remain a matter of political discretion. [35]
It should
not be assumed that non-recognition of a State or government would deprive
that entity rights and duties under International law.[36] It is well established in
International Law that the political existence of a State is independent of
recognition by other States, and thus an unrecognized State must be deemed
subject to the rules of International Law. Unrecognized State is
entitled to enjoy certain rights and be subject to many duties. It has
the rights to defend its integrity and independence, to provide for its
conservation and prosperity and consequently to organize itself as it sees
fit. The exercise of these rights by unrecognized State has no other
limitation than the exercise of the rights of other States according to International
Law. Moreover, unrecognized State is subject to most of the rules of
International Law, such as those related to the law of wars, and is bound by
its agreements.
Non-recognition, with its consequent absence of diplomatic relations, may affect
the unrecognized State in asserting its rights against unrecognizing States,
or before their national courts. However, non-recognition will not affect the
existence of such rights, nor its duties, under International Law.[37]
(B)
Internal Effects of Recognition
Recognition
entails the recognized State the rights to enjoy privileges and immunities of
a foreign State before the national courts, which would not be allowed to
other entities. However, because recognition is essentially a political
act reserved to the executive branch of government, the judiciary branch must
accept the discretion of the executive branch and give effect to its
decisions.[39] The national courts can only
accept and enforce the legal consequences that flow from the act of recognition.
They can accept the rights of a foreign government to sue, to be
granted immunities or to claim other rights of a governmental nature.
They can give effect to the legislative and executive acts of the recognized
State. In the case of non-recognition, national courts will not accept
such rights. In this context, recognition is constitutive, because the
act of recognition itself creates the legal effects within the domestic
jurisdiction of a State.[40]
|
State Territory and Territorial
Sovereignty
As stated in a
previous chapter dealing with a State, a territory is one of the fundamental
elements of statehood. Without a territory, an entity cannot be a State.[1] The notion that a State occupies
a definite portion of the earth within which it exercises, subject to the
limitations of International Law, its exclusive authority to the exclusion of
other States lies at the basis of International Law.[2] The exercise of such a supreme
authority by a State over its own territory is known in International Law as
“territorial sovereignty”.
Notably, the
concept “territorial sovereignty” is confused with the concept
“jurisdiction”. Some have used the two concepts interchangeably.
However, there is a distinction between the two concepts. Territorial
sovereignty signifies ownership and possession of a territory, which entitles a
State to exercise its authority and jurisdiction over the territory.
Jurisdiction justifies competence to affect peoples, properties and events
within a territory.
Because
“territorial sovereignty” and “jurisdiction” are two legal concepts connected
to territory and can only be understood in relation to territory, therefore, in
the following two sections “territorial sovereignty” and modes of acquiring
territory are dealt with. While “jurisdiction” will be the subject of the
next chapter.
Section 1: Territorial
Sovereignty
Sovereignty in
regard to a territory is known as territorial sovereignty. Territorial
Sovereignty is the right of a State to exercise over its own territory, to the
exclusion of any other States, the functions of a State.[3] It has a positive and a
negative aspect.[4] The first aspect relates to the
exclusivity of the right of the State with regard to its own territory, while
the second aspect refers to the obligation to protect the rights of other
States.
A State
exercises its territorial sovereignty within its boundary.
Boundary is an imaginary line that delineates the territorial limit of a State.[5] Boundaries are of three
dimensions.[6] They include the State land and
the maritime domain of its internal waters and territorial sea, the airspace
and its subsoil. They are either natural topographical, having physical
distinguishable features such as mountains, rivers or lakes, or imaginary and
artificial such as lines of attitude and longitude, surveyor lines or
posts. Both types have equal legal effects and usually based upon
treaties or historical title.
The
sovereignty of a coastal State extends, beyond its boundaries, over its
contiguous zone, over its continental shelf and over its exclusive economic
zone. Moreover, the sovereignty of State whether coastal or land-locked
extends over its national vessels. The sovereignty of a State extends
also to its national aircrafts.
The right to
territorial sovereignty enables a State to exercise the fullest measures of
sovereignty powers over its land territory, large measures over its territorial
waters and air space, and smaller measures over its continental shelf and
adjacent area. In addition, it enables a State to exercise sovereignty
over vessels and aircrafts that fly its flag or carry its nationality, which
are treated as its territory.
Corollary to
the rights generated from territorial sovereignty, there are duties imposed
upon a State. These duties involve the obligation to protect within its
territory the rights of other States, together with the rights that each State
may claim for its nationals in foreign territory.
Many treaties
and conventions have been concluded to regulate State sovereignty over land,
sea, airspace and outer space. Over airspace and outer space, there are
the 1944 Convention on International Civil Aviation (the Chicago Convention),[7] the 1963 Treaty Banning Nuclear Weapon
Tests in the Atmosphere, in Outer Space and under Water, [8] and the 1967 Treaty on Principles
Governing the Activities in the Exploration and Use of Outer Space including
the Moon and Other Celestial Bodies (the Outer Space Treaty).[9]
Over the sea,
there is the 1982 Convention on the Law of the Sea,[10] which replaced the 1956 Conventions
related to the Territorial Sea and the Contiguous Zone, the High Seas, the
Continental Shelf, and Fishing and Conservation of living Resources of the High
Seas. In Addition, there is the 1959 Antarctica Treaty.[11]
Since the
rights generated from the concept of territorial sovereignty can only be
exercised in relation to a territory, it is necessary to know how a territory
can be acquired.
Section 2: Acquisition of
Territory
The
international rules related to territorial sovereignty are rooted in the Roman
Law provisions governing ownership and possession. In addition, the classification
of the different modes of acquiring territory is a direct descendant of the
Roman rules dealing with property.[13]
Territory is
the space within which the State exercises sovereign authority. Title to
territory is acquired either through the claim of land not previously owned (terra
nullius) or through the transfer of title from one State to another.[14] Title acquired in the first
category is called original title, while in the second category is called
derivative title. Modes of original acquisition of territory include
occupation, prescription and accretion. Derivative modes include cession
(voluntary or forcible), and conquest and annexation. All
these modes are dealt with in the following.
(1) Occupation
Occupation is
an original mode of acquisition by a State of a title to a territory. It
implies the establishment of sovereignty over a territory not under the
authority of any other State (terra nullius) whether newly discovered or
abandoned by the State formerly in control (unlikely to occur).[15]
For the title
acquired through occupation to be final and valid under International Law, the
presence and control of a State over the concerned territory must be effective.[16] Effectiveness requires on
the part of the Claimant State two elements: an intention or will to act as
sovereign, and the adequate exercise of sovereignty. Intention may be
inferred from all the facts, although sometimes it may be formally expressed in
official notifications to other States. Adequate exercise of sovereignty
must be peaceful, real, and continuous. This element of physical
assumption may be manifested by an explicit or symbolic act by legislative or
administrative measures affecting the claimed territory, or by treaties with
other States recognizing the sovereignty of the Claimant State over the
particular territory or demarcating boundaries.
Occupation was
often preceded by discovery that is the realization of the existence of a
particular piece of land. In the early period of European discovery, in
the Fifteenth and Sixteenth Centuries, the mere realization or sighting was
sufficient to constitute title to territory. As time passed, something
more was required and this took the form of symbolic act of taking possession,
whether by raising of flags or by formal declarations. By the
Eighteenth Century, the effective control came to be required together with discovery
to constitute title to territory.[17]
(2) Prescription
Prescription
is a mode of establishing title to territory which is subject to the
sovereignty of another State (not terra nullius) through peaceful
exercise of de facto sovereignty over a long period of time.[18] It is the legitimization of a
doubtful title by the passage of time and the presumed acquiescence of the
former sovereignty. It differs from occupation. It relates to
territory which has previously been under the sovereignty of another
State. However, both modes are similar since they require evidence of
sovereignty acts by a State over a period of
time.
A title by
prescription to be valid under International Law, it is required that the
length of time must be adequate, and the public and peaceful exercise of de
facto sovereignty must be continuous. The Possession of Claimant
State must be public, in the sense that all interested States can be made aware
of it. It must be peaceful and uninterrupted in the sense that the former
sovereign must consent to the new sovereign. Such consent may be express
or implied from all the relevant circumstances. This means that protests
of whatever means by the former sovereign may completely block any claim of
prescription.
As the
requirement of adequate length of time for possession is concerned, there is no
consensus on this regard. Thus, the adequacy of the length of period
would be decided on a case by case basis. All the circumstances of the
case, including the nature of the territory and the absence or presence of any
competing claims will be taken into consideration.
(3) Accretion
Accretion is a geographical process by which new land is formed mainly through
natural causes and becomes attached to existing land.[19] Examples of such a process are
the creation of islands in a rive mouth, the drying up or the change in the
course of a boundary river, or the emerging of island after the eruption of an
under-sea volcano. When the new land comes into being within the
territory of a State, it forms part of its territory, and this causes no
problem. However, in case of a drying or shifting of a boundary
river, the general rule of International Law is that if the change is gradual
and slight, the boundary may be shifted, but if the change is violent and
excessive, the boundary stays at the same point along the original riverbed.[20]
Where a new
territory is added, mainly through natural causes, to territory already under
the sovereignty of the acquiring State, the acquisition and title to this
territory need no formal act or assertion on part of the acquiring State.[21]
(4) Cession
Cession of
territory is a transfer of sovereignty from one sovereign to another.[22] Its basis lies in the intention
of the concerned parties to transfer sovereignty over the territory in question,
and it rests on the principle that the right of transferring its territory is a
fundamental attribute of the sovereignty of a State. It occurs by means
of an agreement between the ceding and the acquiring States. The cession
may comprise a portion of the territory of the ceding State or the totality of
its territory. In the latter case, the ceding State disappears and merges
into the acquiring State.[23]
Cession of
territory may be voluntary as a result of a purchase, an exchange, a gift, a
voluntary merger, or any other voluntary manner, or it may be made under
compulsion as a result of a war or any use of force against the ceding State.[24] History provides a great
number of examples of cession.[25] Examples of voluntary cession
are the United States’ purchase of Alaska from Russia in 1867, the exchange of
a portion of Bessarabia by Romania to Russia in exchange for Dobrudja in 1878,
the France’s gift of Venice to Italy in 1866, and the voluntary merger of the
Republic of Texas into the United States in 1795. Examples of cession as
a result of a war are the cession to Germany by France of the region of Alsace-
Lorraine in 1871, and the merger of Korea into Japan in 1910.
(5) Conquest and Annexation
Conquest is an
act of defeating an opponent State and occupying all or part of its territory.[26] Annexation is the extension of
sovereignty over a territory by its inclusion into the State.[27] Under traditional International
Law, conquest did not of itself constitute a basis of title to the land.
It was merely a military occupation. If followed by a formal annexation
of the conquered territory, then it was called subjugation and could be
considered a valid derivative title to territory. Accordingly, conquest
followed by annexation constituted a mode to transfer the title of the
conquered territory to the conqueror.[28] Like compulsory cession, conquest
followed by annexation would transfer territory by compulsion, but unlike
cession, it involved no agreement between the concerned parties.
While the
acquisition of territory through conquest followed by annexation was an
accepted mode of acquiring title to territory under traditional International
Law, it is no longer legal at modern times. The acquisition of territory
through the use of force is outlawed by paragraph 4 of article 2 of the Charter
of the United Nations, which obliged the member States to refrain from the use
of force against the territorial integrity or political independence of any
State. This same principle is reaffirmed in the 1970 General Assembly
“Declaration on Principles of International Law Concerning Friendly Relations
and Co-operation among States in Accordance with the Charter of the United
Nations”.[29] This Declaration adds that the
territory of a State shall not be the object of acquisition by another State
resulting from the threat or use of force, and that no territorial acquisition
resulting from such act shall be recognized as legal.[30]
Although today
conquest is not a legal mode of acquiring title to territory, it does give the
victor certain rights under International Law as regards the occupied
territory, such as rights of belligerent occupation.[31] The territory remains the legal
possession of the ousted sovereign because sovereignty does not pass by
conquest to the occupying State, although it may pass in certain cases where
the legal status of the territory occupied is in dispute prior to the conquest.
At present
times, acquisition of territory following a war would require further
international action in addition to internal legislation to annex. Such
further international action would be either a treaty of cession by the former
sovereign or international recognition.[32]
Modern
examples of annexation following conquest are Israel’s annexation of the Golan
Heights and the East Jerusalem, and Iraq’s annexation of Kuwait in 1990.
In case of the Iraqi annexation, the Security Council adopted the resolution
662 of 1990 declaring that this annexation “has no legal validity and is
considered null and void”, and called upon all States not to recognize this
annexation and to refrain from actions which might be interpreted as indirect
recognition.[33]
Corresponding
the modes of acquiring territory, there are modes of losing it. Territory
may be lost by express declaration or conduct such as a treaty of cession or
acceptance of cession, by conquest, by erosion or natural geographic activities,
by prescription or by
abandonment.
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State Jurisdiction
State
jurisdiction is the capacity of a State under International Law to prescribe
and enforce the rules of law.[2] It is derived from the State
sovereignty and constitutes its vital and central feature. It is the
authority of a State over persons, property and events which are primarily
within its territories (its land, its national airspace, and its internal and
territorial water). This authority involves the powers to prescribe the
rules of law, to enforce the prescribed rules of law and to adjudicate.
The powers related to State jurisdiction raise the question regarding the
types and forms of State Jurisdiction.
State
jurisdiction may extend beyond its territory over persons and things which
have a national link. This extension raises the question regarding the
grounds or the principles upon which the State can assert its jurisdiction
within and beyond its boundaries.
Nevertheless, there are certain persons, property and events within a State
territory which are immune from its jurisdiction. This limitation to a
State jurisdiction raises a question regarding the immunity from
jurisdiction.
The
answers to the above raised questions are dealt with in the following
sections.
Section 1: Types of State
Jurisdiction
State
jurisdiction implies the competence to prescribe rules of law, the
jurisdiction to enforce the prescribed rules of law and the jurisdiction to
adjudicate.[3] Accordingly, it is of three
types: legislative jurisdiction, executive jurisdiction and judicial
jurisdiction.
(1) Legislative Jurisdiction
Legislative
jurisdiction is the capacity of a State to prescribe rules of law (the power
to legislate).[4] A State has the supremacy
to make binding laws within its territory. It has a legislative exclusivity
in many areas. This supremacy is entrusted to constitutionally
recognized organs.
Although
legislation is primarily enforceable within a State territory, it may extend
beyond its territory in certain circumstances. International Law,
for example, accepts that a State may levy taxes against persons not within
its territory as long as there is a real link between the State and the
proposed taxpayer, whether it is nationality or domicile.[5]
The question
of how far a court will enforce foreign legislation is a matter within the
field of Private International Law (conflict of laws). It is common
practice of States that a State enforces civil laws of another State, but it
is rare to enforce the penal or taxes laws of another State.
The
legislative supremacy of a State within its territory is well established in
International Law. However, this supremacy may be challenged in cases where a
State adopts laws that are contrary to the rules of International Law.[6] In such cases, a State will be
liable for a breach of International Law. A State may also be
liable for a breach of International Law if it abuses its rights to legislate
for its nationals abroad.
(2) Executive Jurisdiction
Executive
jurisdiction is the capacity of a State to act and to enforce its laws within
its territory.[7] Generally, since States are
independent of each other and possess territorial sovereignty, they have no
authority to carry out their functions on foreign territory.[8] No State has the authority to
infringe the territorial sovereignty of another State. In this sense, a
State cannot enforce its laws upon foreign territory without the consent of
the host State; otherwise, it will be liable for a breach of International
Law.
(3) Judicial Jurisdiction
Judicial
jurisdiction is the capacity of the courts of a State to try legal cases.[9] A State has an exclusive
authority to create courts and assign their jurisdiction, and to lay down the
procedures to be followed. However, in doing so, it cannot by any means
alter the way in which foreign courts operate.
There are a
number of principles upon which the courts of a State can claim jurisdiction.[10] In civil matters, the
principles range from the mere presence of the defendant in the territory of
a State to the nationality and domicile principles. In the criminal
matters, they range from the territorial principle to the universality
principle. These principles are the subject of the following section.
Section 2: Principles of
Jurisdiction
Generally,
the exercise of civil jurisdiction by courts of a State has been claimed upon
far wider grounds than has been the case in criminal matters.[12] The consequent reaction by
other State with this regard has been much mild. This is partly because
public opinion is far more vigorous where a person is tried in foreign
territory for criminal offences than if a person is involved in a civil
case. In addition, International Law does not impose any restrictions
on the jurisdiction of courts in civil matters.
In Common
Law countries such as the United States and United Kingdom, the usual ground
for jurisdiction in civil cases is the service of a writ upon the defendant
within the country, even if the presence of the defendant is temporary and
incidental.[13] In Civil Law countries,
the usual ground for jurisdiction is the habitual residence of the defendant
in the country.[14] In some countries such as
Netherlands, Denmark and Sweden, generally courts assert their jurisdiction
if the defendant possesses assets in the country; however, in matrimonial
cases the commonly accepted ground for jurisdiction is the domicile or
residence of the plaintiff.[15]
As far as
criminal jurisdiction is concerned, the grounds or principles of jurisdiction
mostly invoked by States are as follows.
(1) The Territorial
Principle
The
territorial principle is derived from the concept of State sovereignty.[17] It means that a State has the
primary jurisdiction over all events taking place in its territory regardless
of the nationality of the person responsible. It is the dominant ground
of jurisdiction in International Law. All other State must respect the
supremacy of the State over its territory, and consequently must not
interfere neither in its internal affairs nor in its territorial
jurisdiction.
The
territorial jurisdiction of State extents over its land, its national
airspace, its internal water, its territorial sea, its national aircrafts,
and its national vessels. It encompasses not only crimes committed on
its territory but also crimes have effects within its territory. In
such a case a concurrent jurisdiction occurs, a subjective territorial
jurisdiction may be exercised by the State in whose territory the crime was
committed, and an objective territorial jurisdiction may be exercised by the
State in whose territory the crime had its effect.[18]
Although
jurisdiction is primarily and predominantly territorial, it is not
exclusive. A State is free to confer upon other States the right to
exercise certain jurisdiction within its national territory.[19] States are free to arrange the
right of each one to exercise certain jurisdiction within each national
territory. The most significant recent examples of such arrangements
are: the 1991 France-United Kingdom Protocol Concerning Frontier Control and
Policing, under which the frontier control laws and regulations of each State
are applicable and may be enforced by its officers in the control zones of
the other; the 1994 Israel-Jordan Peace Treaty, under which the Israeli
criminal laws are applicable to the Israeli nationals and the activities involving
only them in the specified areas under Jordan’s sovereignty, and measures can
be taken in the areas by Israel to enforce such laws.[20]
(2) The Nationality
Principle
The
nationality principle implies that a State jurisdiction extends to its
nationals and actions they take beyond its territory.[22] It is based upon the notion
that the link between the State and its nationals is personal one independent
of location.[23]
Criminal
jurisdiction based on the nationality principle is universally
accepted. While Civil Law countries make extensive use of it, the
Common Law countries use it with respect to major crimes such as murder and
treason.[24] The Common law countries,
however, do not challenge the extensive use of this principle by other countries.
A State may
prosecute its nationals for crimes committed anywhere in the world; the
ground of this jurisdiction is known as active nationality principle.[25] Also, it may claim
jurisdiction for crimes committed by aliens against their nationals abroad;
the ground of this jurisdiction is known as passive nationality principle.[26] This last principle has been
viewed as much weaker than the territorial or active nationality principle as
a basis for jurisdiction.[27] It has been considered
as a secondary basis for jurisdiction, and a matter of considerable
controversy among States. However, in recent years this principle has
come to be much acceptable by the international community in the sphere of
terrorist and other internationally condemned crimes.[28]
(3) The Protective principle
The
protective principle implies that a State may exercise jurisdiction over an
alien who commits an act outside its territory, which is deemed prejudicial
to its security and interests.[30] It is universally accepted,
although there are uncertainties as to its practical extent, particularly as
regard to the acts which may come within its domain.[31] It is justified on the basis
of protection of State’s vital interests, particularly when the alien commits
an offence prejudicial to the State, which is not punishable under the law of
the country where he resides and extradition is refused.[32]
Although the
protective principle is used as a secondary basis for jurisdiction and in a
narrower sense than the territorial or the nationality principle,[33] it can easily be abused,
particularly in order to undermine the jurisdiction of other States.[34] In practice however, this
principle is applied in those cases where the acts of the person which take
place abroad constitute crimes against the sovereignty of the State, such as
plots to through a government, treason, espionage, forging a currency, economic
crimes and breaking immigration laws and regulations.[35] This principle is often used
in treaties providing for multiple jurisdictional grounds with regard to
specific crimes, such as the 1979 Hostage Convention and the 1970 Hague
Aircraft Hijacking Convention.[36]
(4) The Universality
Principle
The
universality principle, in its broad sense, implies that a State can claim
jurisdiction over certain crimes committed by any person anywhere in the
world, without any required connection to territory, nationality or special
State interest.[38] Before the Second World War,
such universal jurisdiction has been considered as contrary to International
Law by the Common Law countries, except for acts regarded as crimes in all
countries, and crimes against the international community as a whole such as
piracy and slave trade.
After the
Second World War, universal jurisdiction has been universally recognized over
certain acts considered as international crimes. International crimes
are those crimes committed against the international community as a whole or
in violation of International Law and punishable under it, such as war
crimes, crimes against peace and crimes against humanity.[39] In recent years, crimes such
as Hijacking of aircraft, violation of human rights and terrorism, have been
added to the list of international crimes.
Today under
the universality principle, each State and every State has jurisdiction over
any of the international crimes committed by anyone
anywhere.
Section 3: Immunity from
Jurisdiction
The concept
of jurisdiction is derived from the concept of sovereignty, and is connected
with the principles of equality and non-interference in domestic affairs of
other States.[41] The grounds for jurisdiction
are related to the duty of a State under International Law to respect the territorial
integrity and political independence of other States.[42] Immunity from jurisdiction is
grounded on this duty, and constitutes derogation from the host State
jurisdiction.
Under
International Law, immunity from jurisdiction is granted to certain persons,
namely States (sovereigns) and their diplomatic and consular representatives,
and international organizations.
(1) Sovereign Immunity
In
International Law, sovereign immunity refers to the legal rules and
principles determining the conditions under which a State may claim exemption
from the jurisdiction of another State.[44] Sovereign immunity is a
creation of customary International Law and derives from the principles of
independence and equality of sovereign States; since States are independent
and legally equal, no State may exercise jurisdiction over another State
without its consent.[45] It is a limitation imposed by
International Law upon the sovereignty of a State.
Although
rules of sovereign immunity form part of customary International Law, today
they are incorporated either in international treaties, such as the 1972
European Convention on State Immunity,[46] or in national statutes of certain
States, such as the 1976 U.S Foreign Sovereign Immunities Act[47] and the 1978 U.K State Immunities
Act.[48]
Historically, the head of a State (a sovereign) was associated with the
State. Originally, both of them enjoyed under customary International
Law absolute immunity, in all areas of their activities, from the jurisdiction
of another State. While the head of a State continues today to enjoy
such absolute immunity, even for his private activities, a State nowadays
enjoys only qualified (restrictive) immunity. Under the qualified
immunity, a State enjoys immunity only in respect of its governmental acts
(acts jure imperii), not in respect of its commercial acts (acts jure
gestionis).[49]
In practice,
sovereign immunity arises on two levels.[50] The first level concerns the
immunity of a State from the jurisdiction of courts of another State; courts
of a State cannot adjudicate a claim against a foreign State. The
second level concerns the immunity of a State from the execution of
enforcement measures undertaken by courts of another State.
Sovereign
immunity covers the head of a State as well as the State itself, its
government, its departments, and its agencies. It embraces the acts of
these entities, their property and assets. This immunity may, however,
be voluntarily waived by a State.[51] A State may waive its
immunity from jurisdiction and consequently submits itself to the
jurisdiction of a foreign court. However, such submission (waiver of
jurisdictional immunity), although gives the court of a State the competence
to adjudicate and enter a judgment against a foreign State, it does not
authorize the execution of the court’s decision against such State. In
case of execution, another waiver is needed, namely a waiver of immunity from
execution. Waiver must be express; however, implied waiver is accepted
if indicated by the circumstances.
(2) Diplomatic Immunity
The rules of
diplomatic immunity are the most accepted and uncontroversial rules of
International Law. They are essential for the maintenance and efficient
conduct of relations between States. Prior to the 1961 Vienna
Convention on Diplomatic Relations, diplomatic law, especially privileges and
immunities were based upon custom as well as contained in bilateral treaties
and national statutes. Nowadays, most of the modern law of diplomatic
immunity is contained in the 1961 Vienna Convention on Diplomatic Relations
which both codified existing customary law and established others.
Under this
convention, “a diplomatic agent” (the head of the mission and any member of
the diplomatic staff of the mission) enjoys complete immunity from the
criminal jurisdiction of the receiving State;[54] also, he enjoys immunity from its
civil and administrative jurisdiction, except in the case of real action
relates to private immovable property situated within the receiving State,
action related to succession matters in which he is involved as a private
person, and action related to professional or commercial activity, in the
receiving State, outside his official functions.[55] No measures of execution may
be forced upon him, except in the above mentioned cases. He cannot be obliged
to give evidence as a witness. His person is inviolable.[56] He cannot be arrested or
detained. All appropriate steps should be taken by the receiving State
to protect him and prevent any attack on his person, freedom and
dignity. He is exempt from all dues and taxes, except in certain cases.[57] The premises of the mission
and the private residence of a diplomatic agent as well as their archives,
documents, papers, official correspondence and other property are inviolable.[58]
A diplomatic
agent enjoys immunity from the moment he enters the territory of the
receiving State on proceeding to take up his post or, if already in its
territory, from the moment when his appointment is notified to the Ministry
for Foreign Affairs.[59] He also enjoys such immunity
when passes through or is in the territory of a third State on proceeding to
take up or to return to his post, or when returning to his own country.[60]
The immunity
granted to a diplomatic agent is immunity from the jurisdiction of the
receiving State and not from liability.[61] He is not immune from the jurisdiction
of the sending State. Moreover, he can be sued in the receiving state
after a reasonable time elapses from the ending of his mission.
The immunity of a
diplomatic agent from jurisdiction of the receiving State may be waived by
the sending State.[62] The waiver must be
express. However, such waiver of immunity from jurisdiction does not
imply waiver of immunity in respect of the execution of a judgment; in such
case, a separate waiver is required. Immunity may also be waived by the
diplomatic agent himself, by submitting voluntarily to the jurisdiction of
the court of the receiving State.[63]
Members of
the family of a diplomatic agent, if they are not nationals of the receiving
State, likewise enjoy the same immunity from jurisdiction.[64] The same immunity, with
certain exceptions, is enjoyed by members of the administrative and technical
staff of the mission, together with members of their families forming part of
their respective households, if they are not nationals or permanent residents
of the receiving State.[65] Members of the service staff
who are not nationals or permanent residents of the receiving State enjoy
immunity only in respect of acts performed in the course of their official
duties.[66]
(3) Consular Immunity
A consular
officer, like a diplomatic agent, represents his State in the receiving
State. However, unlike a diplomatic agent, he is not concerned with
political relations between the two States, but with a variety of
administrative functions, such as issuing visas and passports, looking after
the commercial interests of his State, and assisting the nationals of his
State in distress.[68] Thus, he is not granted the
same degree of immunity from jurisdiction as a diplomatic agent.
Notably
nowadays, many States combine its diplomatic and consular services.
Thus, a person who acts simultaneously as a diplomat and consul enjoys
diplomatic immunity.
Under the
1963 Vienna Convention on the Consular Relations[69], a consular officer (the head of the
consular post and any person entrusted to exercise consular functions) is
immune from an arrest or detention pending trial, except in the case of a
grave crime and pursuant to a decision by the competent judicial authority.[70] He is immune from imprisonment
or any other restriction on his personal freedom save in execution of a final
judicial decision. If criminal proceedings are instituted against him,
he must appear before the competent authorities. The proceedings
must be conducted in a manner that respects his official position and does
not hamper the exercise of consular functions, and with the minimum delay.
A consular
officer is immune from the jurisdiction of the judicial or administrative
authorities of the receiving State only in respect of acts performed in the
exercise of consular functions.[71] He is exempt from all dues and
taxes, except in certain cases.[72] In addition, the consular
premises, archives and documents are inviolable.[73]
A consular
officer enjoys the immunities from the moment he enters the territory of the
receiving State on proceeding to take up his post or, if already in its
territory, from the moment when he enters on his duties.[74] The same immunities are
enjoyed by members of the family of the consular officer from the date which
he enjoys his immunities.[75]
The
immunities of a consular officer may be waived by the sending State.[76] The waiver must be
express. However, the waiver of immunity from jurisdiction for the
purposes of civil or administrative proceedings does not imply waiver of
immunity from the execution of a judicial decisions; in such case, a separate
waiver is required. Immunity may also be waived by the consular
officer himself, by submitting voluntarily to the jurisdiction of the court
of the receiving State.[77]
(4) Immunities of
International Organizations
It is
uncertain which immunities and to what extent international organizations
enjoy under customary International Law; the position of this law is far from
clear.[79] Actually, immunities are
granted to international organizations by treaties, or by headquarters
agreements concluded with the host State where the organization is seated.
The purpose
of immunity granted to international organizations is purely functional.
Immunity is regarded as functionally necessary for the fulfillment of their
objectives.[80] It is not a reflection
of sovereignty, as it is in case of a State, except only indirectly when
aiming to protect the interests of the member States of the organization.[81]
Probably the
most important example of treaties providing immunities to international
organizations is the 1946 General Conventions on the Privileges and
Immunities of the United Nations,[82] which sets out the immunities
of the United Nations and its personnel. The United Nations enjoys complete
immunity from all legal process.[83] Its premises, assets, archives
and documents are inviolable.[84] It is exempt from direct taxes
and customs duties.[85] Its staff is exempt from
income tax on their salaries.[86]
The U.N
Secretary General and the Assistant Secretaries General enjoy diplomatic
immunity.[87] Other staff members enjoy
limited immunities, such as immunity from legal process in respect of their
official acts.[88]
Representatives of member States attending the United Nations meetings are
granted almost the same immunities as diplomats, except their immunity from
legal process applies only to their official acts.[89]
An example
of treaties providing immunities to representatives of States in
international organizations is the 1975 Vienna Convention on the
Representatives of States in their Relations with International Organizations
of a Universal Character.[90] This treaty applies to
representatives of States in any international organizations of a universal
character, irrespective of whether or not there are diplomatic relations
between the sending State and the host States.
Under this
treaty, the representatives of States in universal international
organizations enjoy similar immunities to those provided in the 1961 Vienna
Convention on Diplomatic Relations. They enjoy immunity from
criminal jurisdiction, and immunity from civil and administrative
jurisdiction in all cases, save for certain exceptions. The mission
premises, archives, documents and correspondence are inviolable.
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The
Relationship between Public International Law and National Law
|
The Relationship
between Public International Law
and National
Law
Public
International Law and national law (municipal law as known in the Common Law
Countries) are two legal systems. National law governs the
domestic (internal) relations between the official authorities of a State and
between these authorities and individuals as well as the relations between
individuals themselves. Public International Law governs primarily the
relations between States.
With the
rise and extension of Public International Law, a question begins to arise as
to the relationship between the national law of the States and the Public
International Law. This question gives rise to many practical
problems. What is the status of the rules of Public International Law
before a national court? What is the status of the rules of national law
before an international court? Which rule does prevail in a case of
conflict between the two laws? How do rules of Public International Law
take effect in the internal law of a State?
The answers
to the above questions are presented in the following sections: section one
deals with the theories dealing with the relations between International Law
and national law; section two deals with the attitude of International Law to
national law; and section three deals with the attitude of various national
laws to International Law.
Section 1: The Theories
Dealing with the Relations Between International Law and National Law
There are
two major theories on the relationship between Public International Law and
national law. The first is the dualist theory. The second is the
monist theory.[1]
The dualist
theory considers that International law and national law are two separate
legal systems which exist independently of each other. Each of these
two systems regulates different subject matters, function on different
levels, and each is dominant in its sphere. Public International Law
primarily regulates the conduct of sovereign States. National law
regulates the conduct of persons within a sovereign State. On this
view, neither legal system has the power to create or alter rules of the
other. When national law provides that International Law be applied in
whole or in part within the jurisdiction, this is merely an exercise of the
authority of national law in the adoption or transformation of the rules of
International Law into its legal system. The national law has a
supremacy over the International Law; in the case of a conflict between
International Law and national law, a national court would apply national
law.
The monist
theory, which upholds the unity of all law, regards International Law and
national law as forming part of the same legal system (order). It argues
that both laws are based upon the same premise, that of regulating the
conduct and the welfare of individuals. However, it asserts the
supremacy of International Law over national law even within the national
sphere; in the case of a conflict between the two laws, International Law is
supreme.
It is
notable that the position taken by each of these two theories is a reflection
of its ideological background. The dualist theory adheres to
positivism, while the monist theory follows natural law thinking and liberal
ideas of a world society.[2]
Facing these
two basic theories, a third approach is introduced.[3] This approach is somewhat a
modification of the dualist theory. It attempts to establish a
recognized theoretical view tied to reality. While it asserts that the
two laws are of two distinct legal systems, it denies that a common field of
operation exists as between International Law and national law by which one
system is superior or inferior to the other. Each law is supreme in its
own sphere (field). Just as one cannot talk in terms of the supremacy
of one national law over another, but only of two distinct legal systems each
operating within its own field, so International Law and national law should
be treated in the same way. Each law exists within a different
juridical order.
Because the
above opposing theories, in reality, do not adequately reflect actual State
practice, the scholars in each side have forced to modify their original
positions in many respects, bringing them closer to each other, without,
however, producing a conclusive answer on the true relationship between
International Law and national law.[4] This fact has led some legal
scholars to pay less attention to these theoretical views and to prefer a
more empirical approach seeking practical solutions in a given case.[5] The method of solving a
problem does not probe deeply into theoretical considerations, but aims at
being practical and in accord with the majority of States practice and
international judicial decisions.[6] On this view, it is more useful
for us to leave the theoretical controversy aside and direct our attention to
the attitude of International Law to national law and the attitude of the
various national laws to International Law; these are what are discussed in
the following two sections.
Section 2: The Attitude of
International Law to National Law
International Law, in the international sphere, has a supremacy over national
law. However, this principle does not mean that national law is
irrelevant or unnecessary. International Law does not ignore national
law. National law has been used as evidence of international custom or
general principles of law, which are both sources of International Law.[8] Moreover, International Law
leaves certain questions to be decided by national law.[9] Examples of these questions are
those related to the spheres of competence claimed by States as regards State
territory, territorial sea, jurisdiction, and nationality of individuals and
legal persons, or those related to obligations to protect human rights and
the treatment of civilians during belligerent occupation.[10] Thus, the international court
may have to examine national law related to these questions in order to
decide whether particular acts are in breach of obligations under
International Law, particularly, treaties or customary law.[11]
A great
number of treaties contain provisions referring directly to internal law or
employing concepts which by implication are to be understood in the context
of a particular national law.[12] Many treaties refer to
“nationals” of the contracting parties, and the presumption is that the term
means persons having that status under the internal law of one of the
parties.[13]
The
international courts, including the International Court of Justice and its
predecessor, have regarded national law as a fact that the parties may
provide by means of evidence and not to be taken by the court ex officio.[14] Moreover in examining national
law the courts have in principle regarded as binding the interpretation by
national courts of their own laws.[15]
Section 3:The Attitude of National
Laws to International Law
The attitude
of national law to International Law is not that easy to summarize as the
attitude of International Law to national law. This is because the laws
of different States vary greatly in this respect.[17] However, States are, of
course, under a general obligation to act in conformity with the rules of
International Law; otherwise, they will be responsible for the violations of
such rules, whether committed by their legislative, executive or judicial
authority.[18] Further, States are obliged to
bring national law into conformity with their obligations under International
Law; for example, treaties may require a national legislation to be
promulgated by the States parties. Nevertheless, International Law
leaves to States the method of achieving this result. States are free
to decide how to include their international obligations into their national
law and to determine which legal status these have internally. In
practice, on this issue there is no uniformity in the different national
legal systems. However, the prevailing position appears to be dualist,
regarding International Law and national law as different systems requiring
the incorporation (adoption, transformation and reception are other concepts
used) of the international rules on the national level.
Actually,
the most important issues of the attitude of national legal systems to
International Law concern the status of international customary law and
international treaties. On these issues, the attitude of various national legal
systems varies.
The survey
of the attitudes adopted by various countries of the Common Law and Civil Law
traditions leads to the following conclusions.[19] The first of these is that
most countries accept the operation of customary rules within their own
jurisdictions, providing there is no conflict with existing laws, i.e., if
there is a conflict, national law is supreme; some countries allow International
Law to prevail over national law at all time. The second conclusion is
that as regards treaties, in some countries, certain treaties operate
internally by themselves (self-executing) while others require undergoing a
process of internal legislation. Some countries allow treaties to
supersede all national laws (ordinary laws and the constitution), whether
made earlier or later than the treaty, while others allow treaties to
supersede only ordinary laws and only that made earlier than the treaty.
Others adopt opposite positions.
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NOTES
ADAPTED FROM Dr Walid Abdulrahim
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