Nature and Basis of IL
Antony Anghie (3rd World Perspective of IL)
Prof. Upendra Baxi (3rd World Perspective of IL)
Prof. Bhupinder Chimni (3rd World Perspective of IL)
The relationship between IL and Municipal/Domestic Law
Sources of IL
Mentioned in the UN Charter, ICJ
Statehood/Subjects of IL
Territory of IL
Law of the Sea
Exclusive Economic Zones
NATURE AND BASIS OF INTERNATIONAL LAW (IL)
Marti Koskenniemi (What is IL for?)
Tried to analyze the objective of IL
Paradox of objectives
These objectives could mean different to different people
No uniform conception of peace, security, and Justice
Israel and Palestine example. Objective of both will be mutually exclusive to each other.
Article 1-UN to act as a center to harmonize the actions of state for the attainment of common ends.
These concepts exist at a high level of abstraction
Convention on the suppression of Genocide-
Reservations of different countries on different provisions
Matter referred to ICJ for an advisory opinion
ICJ said that reservations are valid as long as they do not conflict with the object of the convention.
But countries allowed to have their own objectives of the convention.
Problem-Not all countries have the same objective and purpose
IL is the political preference of Intl. Actors. (MARTI Koskenniemi)
The problem of uniformity and consistency
The question of who is Intl. actors? Only states or individuals and corporations as well?
Treaty of Westphalia (1648)
1. Recognized the sovereignty of every state
2. Loosened the power of the Holy Roman Empire
3. Enumerated upon the sovereignty of States.
If IL is based on political preferences of International Actors and sovereignty of states, then the problems-
Disagreement between states
Why should only state objectives count?
The state is the only/main subject of IL.
But in today’s global world, there is undermining of the state’s sovereignty.
Parallel Institutions like transnational organisations diluted state sovereignty.
Their importance increased in the late 20th century due to the development of Human Rights.
The state is still a viable entity that can channel people’s demand.
ICJ in its advisory opinion on Nuclear Weapons 1996 said that preservation and security of the state is an ultimate aim.
Certain IL Principles-
Enumerated in the Vienna Convention on the Law of Treaties 1969.
These are the norms of fundamental importance that cannot be violated and derogated from.
Eg- Laws against slavery, genocide, torture, aggression
OBLIGATIONS ERGA OMNES
Such obligations which are owed to the community as a whole.
Obligations such as Natural resources, clean and healthy environment.
Human rights and environmental laws.
These obligations undermined state sovereignty to an extent.
Due to the lack of viable alternatives, the state continued to be taken as an important subject. That’s why state preferences hold importance.
Disagreement between States-
This dissonance takes care on its own.
During the League of Nation, the predominant thinking was-
Idealist and Optimistic thinking
But aggression of allied power during war years gave way to Realist thinking
The postwar year saw the revival of Idealist thinking but mired in Realist thinking.
Predominant state interests.
Two IL schools
1. Formalism (Idealism)
Lays emphasis on the formal aspect of the law.
A bare reading of the law.
It has more elements of legality and the rule of law.
2. Instrumentalism (Realism)
Looks at the objective behind the law.
Example of differences between these two schools-
Use of Force
Article 2(4) of UN Charter outlaws use of force but Article 51 permits use of force as self-defense in case of armed attack.
Will humanitarian intervention in a tyrannical state be justified?
Not from formalistic reading but by instrumental reading.
What about a missile attack where no physical invasion takes place?
Article 25 and 48 enumerates that all states are to assist the security council when it is carrying out enforcement action.
Under formalistic reading, all were required to cooperate.
But from Instrumental reading not.
Beef Hormones dispute between EU and US-
EU did not allow the import of hormone-treated beef from the US.
WTO gave a verdict in favor of the US.
Nuclear Weapons case 1996-
ICJ did not say that Nuclear Weapons are illegal.
Problems with Formalistic Approach
Background of an international agreement is very complicated.
Formalism does not take into account surrounding circumstances around a treaty.
It just goes by the black letter of the law.
It’s not dynamic.
Advantages of Formalistic Approach
Rules ones formulated are very certain and weak states can clamor for their rights based on those provisions.
Uphold the rule of law in the international community.
Problems with Instrumentalist Approach
Misuse and manipulation by strong states.
So many public attention was paid to 9/11 but little attention is paid to millions dying due to military intervention of US and allies.
Advantages of Instrumentalist Approach
Less divide between politics and the law.
That IL is the result of International politics hence IL cannot be divorced from politics. So, it highlights realities and not just idealism.
The formalistic approach is very conservative and does not take into account moving dynamism of the IL.
Instrumentalist approach is progressive.
Works to be done by IL Lawyer (Marti Koskenniemi)
Though decisions rendered by ICJ are not followed in letter and spirit due to international pressure, the state generally complies with ICJ rulings.
Balance out conflicting interests.
Fairness of outcome.
The breakup of Yugoslavia 1990s
Breakup because of the treatment meted to minorities
There were two issues-
1. Respect of boundaries
2. Protection of minorities
The concept of UTI POSSIDETIS says that International boundaries must be respected.
When a state is breaking borders and minorities are a major issue and their settlement is a Herculean task.
Article 2(7) outlaws intervening in another’s state is the territory.
Is humanitarian international allowed in a tyrannical state?
Yes. According to instrumentalism.
Intl lawyers have to weight down conflicting consideration.
As in the example of Yugoslavia.
The end result should be the “Fairness of outcome.”
IL operates in both cooperation and conflict.
IL exists in a world which harmonious as well as conflict.
IL operates in relatively autonomous, formal technique along with instrument to advance the claims if all peoples.
1. IL should remain aspirational. (Aspirational does not pean utopian)
2. It should advance the cause of substantive values, preferences, and practices.
3. Advance the cause of distributional Justice.
Promise of justice
IL only. (formal letter of the law)
4. Intl. realities and politics should also be taken into account. In absence of that IL will merely become positive law.
IS INTERNATIONAL LAW, LAW?
As per Positivist scholars like John Austin, IL is merely a positive morality. Because IL has no sanction. Because when countries flout IL, nothing happens. Because there is no central authority which can levy sanction.
According to Holland-IL is the vanishing point of Jurisprudence.
Anthony Damato-‘Is IL really law?’
Most of the Western scholars will say-Yes.
It depends upon circumstances.
Even in domestic spheres, not all laws are effectively enforced. Does the same logic apply to IL?
In domestic law, when an individual gets ruling against the state, its enforcement is difficult. Same is true for IL.
In primitive/tribal societies, the sanction is in the form of social disapproval. Social customs have most important imposition.
Just because a law does not have an enforcement mechanism does not necessarily make it a non-law. We have to dissociate the law with its enforcement mechanism.
Marbury v Madison– CJM was of the opinion that once there is a right, there is a remedy and relief.
We have to look IL from an entitlement perspective. That every state is entitled to something-life, liberty and property ie territory, territorial sea, coastal positions, EEZs, etc. If some state does not obey IL then other states should not retaliate in a tit-for-tat manner. In the contemporary situation of globalization and multiculturalism, they should withhold an entitlement that a state could possess.
Eg-Iranian Hostage Crisis
After US diplomats were taken hostages in Iran after the Iranian revolution, rather than going for an all-out war, they froze the foreign financial assets of Iran.
Reciprocal entitlement perspective.
If State A takes away an entitlement of state B, then state B can take away State A’s any other entitlement.
IS INTERNATIONAL LAW INTERNATIONAL? (Anthea Roberts)
Anthea tries to built on the assertion that IL is not international.
She criticizes the assumed understanding that IL requires constant communication, cooperation, and collaboration amongst Intl Lawyers across continents.
She compares the legal system of the Anglo-US States with Russia and China and asserts that IL can be intl. if it has a cosmopolitan character ie. the publications of IL should be manned not only by Anglo-US nations but eastern nations as well.
Chapter 1-The divisible college of Intl Lawyers-
Till date, IL was thought to be invisible, non-divisible college of lawyers. But IL is a divisible college of lawyers.
Lawyers are divided on the basis of nationality and region.
They all differ in their outlook, approach, and orientation on matters of IL on this basis.
We also have phases of IL-
The ascendency of Donald Trump.
It developed through a process of difference, dominance, and disruption-
There is an obvious difference between domestic and IL lawyers. There is a thinking that there is a mainstream way of thinking which has a shade of Anglo-American outlook which gets perpetuated by influential legal academics and universities.
The divide is between Western/Anglo-American vis-a-vis other lawyers. The literature they studied was passed on to generations and became IL. But today it is questioned by Russian and Chinese (outlier nations).
Eg-Russian annexation of Crimea in 2014.
This is illegal according to present IL literature.
But according to Russian literature, it is self-determination of people of Crimea.
South-China sea dispute and arbitral award-
China had allegedly amassed certain territories which were not under its jurisdiction. China refused to abide by the ruling and instead raised the question on the jurisdiction of the tribunal. Western scholar criticized China’s attitude but the majority of Chinese scholars were of the opposite view.
Still, there were mixed views because China and its academics and scholars are now more integrated to West.
So the difference plays out in two ways-
1. Multi-faceted divisions/difference amongst the western and non-western states. Anthea is in favor of multiple main-stream voices.
2. The system of governance and laws that countries follow.
The culture of dominance has been perpetuated through the process of globalization.
The popular understanding of globalization is free-low of ideas, men and material across the world.
The flow of men, material, and ideas is one-sided. Only Anglo-American ideas are diffusing the East.
Weak states are seeing only localized globalization.
Eg-Language of Intl. Justice–
Intl. Courts and institutions are done through two working language-English and French.
When the debate of the mainstream is English, we do not know the debates happening in non-English societies.
That understanding of IL has changed by a variety of factors-
Rather than acting as a universalizing force, it’s acting like eco-chambers and which is re-enforcing of exciting political ideas.
Changes in domestic political preferences
The shift in geopolitical dominance
With the ascendancy of Trump, treaties which were once considered binding are being violated. This is causing disturbance and disturbance in IL scene.
Environmental and Trade Agreements. TPP.
The rise of Eastern Powers such as China. China is taking very seriously its role as a new super-power.
Law of cyber-space-
The approach is similar to Russia
China wants censorship over cyber-space.
Law of the Sea-
The approach is similar to Russia
Law of outer-space-
The approach is similar to Russia
These disruptions have gained momentum since 2016.
IL, in order to be truly Intl, has to be multi-lingual, multi-faceted.
3rd WORLD APPROACHES TO INTL. LAW
1. Prof. Antony Anghie (Singapore)
2. Prof. Upendra Baxi
Takes into account hitherto-
Prof. Antony Anghie (Singapore)-Evolution of IL: Colonial and Post-colonial Realities
IL is looked as a civilizing mission aimed at civilizing the erstwhile colonized countries.
Tries to understand IL from the perspective of imperialism.
Understanding of IL is mired in imperialistic outlook.
That 3rd world countries which faced imperialism are out from the purview of proper study of IL.
We have Naturalist, Positivists and Pragmatist approaches. Pragmatists rely on institutions. They are institutionalist in outlook.
Antony Anghie says that all these perspectives exclude 3rd world countries. These are all 3 grand exclusionary projects.
The concept of Sovereignty-
Though has emerged after the treaty of Westphalia 1648, we do not see sovereignty taking its full form as long as 3rd world countries are concerned.
Imperialists brought all of these approaches to 3rd world countries but left without giving them their full sovereignty.
They exclude 3rd world countries of IL narratives.
Prof. Antony Anghie has stretched the world history from the 16th century till war on terror and has elaborated how 3rd world countries have been deprived of the rubrics of IL.
Certain dogmas and understandings of IL leave out 3rd countries from the study.
Antony Anghie tries to relate imperialism with commerce.
He is talking about imperialism as a culture of civilizing mission and also from an economic perspective.
Two main aims of Imperialisms
1. Economics and Commerce
2. Civilising Mission
League of Nations
Came into being after the destruction caused by the 3rd World War.
LoN had a mandate system within it.
Victors of the 1st World War were given territories to govern. Eg Britain was given Palestine.
Most of Ottoman and German (losers) territories were given to victors.
Prof. Antony Anghie raises the questions that why should certain countries be given the mandate to govern other countries when all nations are equal.
In the United Nations,
We have Trust Territories in place of the mandate system.
Mandate systems were given to victors but understating about trust territories is that they have not reached a level of self-governance.
Trust system has been created more objectively than the mandate system.
Countries gained independence and asserted themselves on Intl. plane.
But Intl. the law does not know how to deal with these countries.
How IL is going to accommodate them?
Methods of assertion-
NIEO-New Intl. Economic Order (the 1990s)
They clamored for democratic, economic space.
Looks for re-structuring the economic institutions and structures in order to provide these countries more vocal expression and place.
They are primary lending institutions to developing economies.
World Trade Organisation-
The argument is that these institutions are providing onerous conditions for economic assistance.
This means that these countries are not pro-third word countries but work in a quid-pro manner.
So there is a demand for re-structuring of these institutions.
NIEO led to these institutions becoming more considerate towards the needs of the 3rd world countries.
Some of the economic policies were restructured as well in the light of these assertions.
Intl. Human Rights Law
With decolonization, 3rd world countries were felt to be more in need of Intl Human Rights Law.
Though 3rd world countries clamor for Human Rights Law but in their domestic law, they also violate human rights.
He has drawn on the world history from the 16th century to the global war on terror.
War on Terror
Calls as Waterloo of Intl. Law
It unleashed a new wave of subjective interpretation of IL and thus reinforced the civilizing mission of imperialist nations.
TF. It is the lowest mark of IL because all standards of IL which were considered egalitarian were thrown in the wind.
It was nothing than their aggrandizing mission, aimed at either grabbing the economic resources or using them as the base for geopolitical influence.
It has unleashed a world of violence rather than peace.
IL has become a study of violence than about peace-loving democratic states.
There is a perpetual cycle of violence imposed by modern-day imperialistic powers.
He draws a parallel with Emanuel Kant.
Kant in his essay ‘Perpetual Peace’ writes about global peace and justice.
3rd world countries continued to be exploited and dominated in neo-colonial ways and have undermined the global justice and peace as understood by Kant and Marti.
3rd world Perspective from Socialist Orientation.
Prof. BC Chimni- 3rd World Approaches to IL-A Manifesto
BC Chimni was a professor in JNU
Criticizes globalization in his article.
That benefits of globalization are incomplete because forces of globalization have led to the re-colonization of people.
That rich are getting richer while the poor are getting poor.
Whereas Prof. Anghie looks IL from the imperialistic approach, Prof. Chimni looks from a Globalisation perspective.
That Globalisation has rendered IL ineffective.
3rd World is a contested concept because it was created during cold-war.
But despite their internal differences, they are united in their fight against neo-colonialism.
Looks from 11 perspectives-
How IL defines and tries to create a democratic state.
Current predominant idea is that IL applies to democratic states.
Prof. Says that we have to differentiate between formal democracy and substantial democracy.
IL has done very little to deepen substantive democracy.
The aim is deepening and extending substantive democracy.
That war has been fought for expanding democracy.
IL does not take global substantive democracy seriously.
IL now aspires to directly regulate property rights.
Tries to articulate, regulate and enforce property rights with regimes such as Intellectual Property Rights under TRIPS. It also does to through privatization.
In doing so, it tilts the balance in favor of the global north compared to the global south.
IL governs how the exchange of commodities is to take place.
Sale of good
Anti-dumping laws framed by WTO.
De-territorialization of currency
The debate is about currencies being fully convertible. It means that governments should not have any regulating power over currencies. Earlier crude prices were also regulated by government but today they are determined by market forces.
Fully convertible currencies have disadvantages for developing the world.
Internationalization of Property rights has happened through internationalization of Human Rights discourse.
1. Human rights talk came to have a pervasive presence today. HR conversations have become globalized.
2. It has a problem with principles like Non-intervention and Territorial integrity of states.
De-regulation of Labour market
Whole globalization narrative focuses on deregulation of every sphere.
In the case of labor, it means-
No fixed minimum income
No fixed social security
This has problematic repercussion for under-developed nations.
There is a race amongst developing countries to attract foreign investment by de-regulation and SEZs.
Deplorable labor conditions in SEZs and Export processing zones
The concept of Jurisdiction becoming more complex than ever-
The ideas of One nation juxtaposed on another nation.
The proliferation of International Tribunals
This subordinates the role of national legal systems in the dispute resolution process.
Ad-hoc tribunals before an international criminal court
WTO’s dispute settlement mechanism-
Most of the judges are from the global north and English educated.
India recently lost a solar-solar-panel dispute. It is said that reason was that India did not put its argument properly.
The state is no longer the exclusive participant in the international legal process-
Though it is the principal actor in lawmaking but a no longer exclusive participant in the ILP.
Other participants are Trans-national organizations and corporations. They operate on the principle of Lex Mercatoria. Financial interests outweigh any other interest.
Intra-firm transactions also lead to erosion of taxes.
Refusal to affirmatively differentiate amongst states at different levels of the development process-
We cannot expect Bhutan to have the same development process as Singapore or Japan.
IL takes this into account in a very limited process. In the trading system, we have special and differential rights.
Sustainable development and environmental agreements.
How the relationship between States and the UN is changing-
P5 countries are in a better position to talk about their global agenda because of their power in the security council.
More fundings of the UN come from developed nations. In such a situation it is doubted whether it will be a center for harmonizing the interests of nations to achieve common ends.
Prof. Chimni’s solution to these problems which he has highlighted-
We should revisit the idea of socialism.
We should merge the old social movement by a new social movement.
Old social movement looked at states in a binary prism-haves and have nots.
New Social movement is guided by ideological struggles as gender right, environment, etc.
Old social movement was nihilistic in their attitude while new social movement is more comprehensive.
Solutions have to be in the form of those 11 pointers.
Transparency and accountability, etc.
Uphold monetary sovereignty, etc
UPENDRA BAXI-What may the 3rd World expect from International Law
Chimni looked IL from a sociological perspective.
Upendra Baxi- People centric vision of IL.
Aspirations of 3rd world people.
Contributions and expectations of 3rd world states.
3rd world people have contributed a lot to IL
Cited few scholars who said that 3rd world states are rogue states.
Baxi says that 3rd world exists in full extent.
Contributions of 3rd world-
It put people as inaugural actors at the front stage of IL.
Their collective struggle gave the world the concept of self-determination.
De-recognized racism as a founding feature of IL.
Enriched the jurisprudence of Human Rights Law.
New International Economic Order by recognizing that Breton woods institutions are not representative enough.
International socio-economic rights-
CEDAW 1978-convention on the elimination of discrimination against women.
Worldwide practices against torture, cruel, inhumane and degrading treatment.
Convention against torture.
Sustainable development movement.
Respecting the territorial integrity of states.
Their expectations from IL-
Equal dignity on the international plane.
Expectations of territorial non-aggression.
Limitations to pre-emptive war.
Expectations of gender equality and justice.
Global reparative justice-redressal of the past wrongs.
Duties of assistance from states who have systematically benefited in the past due to colonial rule.
The authentic global tribunal which will investigate the atrocities committed doing colonialism.
Expectations of redressal of new forms of statelessness.
Respect for multi-culturalism.
Human right practices and policies taking into account the development needs of the 3rd world.
Free and Fairtrade.
The market is not only profit-oriented.
RELATIONSHIP BETWEEN IL AND MUNICIPAL LAW
How IL affect us?
2 school of thoughts-
Do not acknowledge IL. There is a dualism. That IL and domestic laws are separate entities. Whatever happens in IL and DL does not affect each other.
Scholars such as Tripel and Strupp.
They espouse the cause of states and discredit IL.
Says that only IL exists and nothing else.
There is one grundnorm which affects all states equally.
It highlights the importance of IL as one entity and DL as other.
If we go by positivists, it is not correct in today’s time because we live in a globalized world and what happens at the global stage affects the domestic system. That state can violate IL and nothing will happen.
If we go by Monists, they give more importance to IL.
So none of these theories truly reflect what really happens at Intl. Stage.
In a case, ICJ highlighted the importance of IL. If states are following DL but are violating IL then it is problematic.
Alabama claims Arbitration 1872
It’s an arbitration award. It helped in codifying public IL.
The dispute arose between the US and UK on the issue of the UK allowing a Confederate ship to prey on US ships during the US civil war.
UK contended that it was legal because none of the British laws prohibited the UK from doing so.
So IL principle of neutrality was given precedence.
Applicability of the obligation to Arbitrate 1988
Held that Intl. Law prevails over domestic law.
Lockerbie Case 1992
ICJ said that inability under DL is no defense to non-compliance of IL.
La Grand case 2001
Vienna Convention on Consular Relations 1963 regulates diplomatic relationship between countries.
La Grand brothers were accused of terrorism and the US stopped their consular access to the embassies of their countries.
ICJ held against the US.
Siberian Loans case 1929-
Permanent Court of International Justice (PCIJ), the precursor to ICJ grappled with two interpretations of the law.
The rules of DL can be utilized as evidence of compliance or non-compliance with IL.
Barcelona Traction case 1970-
Permanent Court of International Justice (PCIJ) took the concept of LLP corporation was taken from DL.
Certain German Interests in Polish Upper Silesia 1925-
From the standpoint of IL, municipal laws are merely facts.
When we look at the Geneva convention, PCIJ can look into whether Poland is fulfilling its obligations towards Germany under Geneva convention and whether Poland’s DL is in conformity with its IL obligations.
HOW THE RELATIONSHIP BETWEEN IL AND DL PLAYS OUT IN PRACTICE
How DL courts interpret IL
We have to analyze it from 2 perspective-
1. Customary IL-Those unwritten principles of IL which have been agreed by the majority of States.
2. Treaty Law-Those written principles of the law written in treaties. Objective and Written down.
In 18th CE, courts gave effect to clearly established rules of IL.
Customary IL is given very high status akin to treaty law.
Different theories practiced by UK Courts regarding Laws
1. Theory of INCORPORATION-
Lays down that principle of IL will be automatically transposed to the UK.
Incorporation of principles of IL automatically without any legislation.
In 18th CE, courts gave effect to clearly established rules of IL.
Customary IL was given very high status akin to treaty law.
But slowly they shifted towards the theory of Transportation.
In the 21st century, they shifted to the theory of modified incorporation.
Customary practices are one of the primary basis of sources of IL (Article 38 VCLT)
Consists of two parts-
1. Practices considered by States as Law-
2. Opinio Juris– Whether these practices constitute IL in their opinion
2. Theory of TRANSFORMATION-
Any principle of IL can be made applicable by statute.
Any rule of IL cannot be effectuated on its own without transforming it in the form of a statute by a law of parliament.
Example-That there is a principle of IL which says that internal waters of a state will be 12 nautical miles. Unless the UK by legislation gives effect to this principle, it will not be applicable to the UK.
3. Theory of MODIFIED INCORPORATION-
Principles of IL is modified before it is automatically applicable.
How did UK courts look at customary IL?
Incorporation was a dominant British Approach.
Buvot v Barbuit 1737
It was declared unambiguously that laws of the nation were the law of England.
It was pure incorporation of incorporation theory.
There was a Prussian commercial agent claiming diplomatic immunity and his claims were upheld.
Diplomatic immunity was considered as part of Customary IL.
Triquet v Bath 1764
Whether domestic servant of Bavarian Minister to Britain can claim diplomatic immunity?
R v Keyn 1876
A German ship Franconia collided with a British vessel and sank it in the English Channel within 3 miles of the English Coast.
The German captain was indicted for manslaughter.
Whether English court had Jurisdiction to try the offense?
The court held that no British legislation existed which provided jurisdiction within 3 miles of British coast and subsequently the German Captain was let off.
The principle of Transformation seemed to be followed in this case.
West Rand Gold Mining Co. case 1905
Showed a distinction between incorporation and transformation.
The blurring of the distinction between two theories.
Whatever has received the common conscience of civilized nations should form part of Britain but it should not happen automatically but should first be recognized by Britain.
Customary rules of Intl Law vis-a-vis Human Rights
One of the ways UK fulfilled EU obligations was by obliging ECHR and Human Rights Act of the UK.
UK court follows the doctrine of precedents.
The relationship between the doctrine of precedents and Intl. customary law principles?
Latter takes precedence over the former.
Intl. customary law norms do not recognize the doctrine of precedent.
Only Intl. customary law principles will have precedent.
This was laid down by a court of appeal in the case of Threndtex Trading Corporation v Central Bank of Nigeria 1977
All 3 Judges accepted the incorporated doctrine as the correct one.
R v Jones 2006
Whether Intl. customary law rule prohibiting aggression had automatically entered English criminal law?
HoL held that the definition of aggression is the result of Intl. customary law principles and did not enter English criminal law without authorization by statute.
Hinting towards modified incorporation approach.
Till there is an enabling statute, no Intl. customary law principle can automatically become part of UK law.
Rebuttal presumption of law
Presumption of law that domestic laws would not go against IL norms.
Different theories practiced by UK Courts regarding Treaties.
Intl. customary law principles are not codified but treated are codified contracts to which signatories are bound by.
Treating making is an Executive Act in the UK.
It is placed before the Parliament for debate- Ponsonby Rule
If legislation is in conflict with Treaty, the presumption will be that legislation is not in violation of the Treaty.
US position on IL and Municipal law appears to be similar to that of the UK.
The major difference is that in the US, the constitution has to be taken into regard which cannot be overlooked.
The US goes by Transformative Approach
Pasquette Havana 1900
Intl. customary law principles are part of US law and must be ascertained and administered by US courts depending on the circumstances. (Incorporation approach)
Boos v Barry 1988
Rules of Intl. customary law principles are subject to the US constitution.
Intl. customary law principles will hold water only if they are in consonance with the federal law and US constitution.
US courts bound by the doctrine of precedent.
In case of conflict between Municipal law and IL, the former will prevail.
Committee of US Citizens living in Nicaragua v Reagan 1988
Confirmed the higher role of precedents.
The doctrine of precedence holds precedence.
No enactment of Congress shall be challenged on the ground that it violates Intl. customary law principles.
Alien Torts Claim Act 1789
Provides that district courts have original jurisdiction of any civil action by an alien for a tort only committed in violation of the law of the nation.
A civil court can take Cognizance of any civil tort filed by an alien/non-citizen alleging a violation of the law of the nation.
Filartiga v Pena Irala 1980
This case was brought by a Prague national against other Prague national who tortured his son to death.
Court held that torture constituted a violation of Intl customary law and was held actionable.
Chadic v Karadzic 1995
Any kind of terrorist act was held actionable under the Alien Torts Claim Act.
Sosa v Alvarez v Machain 2004
That Alien Tort Claim Act is only a jurisdictional act. It could not bring any new causes of action.
US Treaty Practice-
Different from UK treaty practices.
In the UK it was an executive act, here it is not an executive act barring few exceptions.
Article 6(2) of the US constitution lays down that all treaties shall be made with the authority of the US shall be the supreme law of the land and the judges shall be bound by that.
The article says that President has the power to make an international agreement but he can ratify them only of the Senate agrees with 2/3 majority.
Exception-Executive Agreements made for limited subjects-
Political in nature.
Litvinov Agreement 1933
Gave recognition to the USSR and provided for the assignment of USSR debts to the US.
The validity of executive agreement was challenged-
US v Pink 1942
Such agreements have the same effect as agreements approved by the Senate.
Kind of Treaties-
They are self-executing and do not require any statute or enabling legislation to make them enforceable and part of US law.
They require enabling legislation before they can become part of US law.
Where a treaty involves a political question of exposition/enunciation, it is non-self-executing.
Acquisition or loss of territory and financial arrangements are non-self-executing.
Edye v Robertson 1884
Declared that treaties which contain a provision which is capable of enforcement in a court of law as between private parties, that kind of treaties are self-executing.
Sei Fuji v California 1952
Plaintiff was a Japanese citizen who brought some land in California.
Domestic law of California forbade the purchase of land by aliens.
Plaintiff raised the contention that it is against the UN Charter.
Whether UN charter is self-executing?
One has to look at-
1. Terms of the Treaty
2. The intention of the signatories.
3. Relevant circumstances of the treaty and also the time.
The court followed Edye v Robertson.
UN Charter was non-self executing in the absence of enabling legislation.
But the court upheld contentions of plaintiff on different grounds.
What happens if the US legislation does not take into account any IL obligations?
In that case, US legislation is supreme in the US notwithstanding its violation of IL obligations.
Diggs c Schultz 1972
Whether the court had to consider the effect Byrd Amendment which legalized the importation of strategic material such as chrome from Rhodesia/Zimbabwe?
This was against its obligation as far as the UN security council was concerned which had imposed sanctions on Rhodesia on account of its racist government.
Held that Congress can denounce treaties and there is nothing that organs of government can do about that.
There is also a presumption that Congress will not legislate contrary to IL obligations.
Also, the rule of Harmonious construction of Treaties.
US v Palestine Liberation Organisation 1988
Possible conflict between Treaty obligations and domestic legislation
Domestic legislation Anti-Terrorism Act 1987 provided for the closure of all PLO offices in the US. US attorney perceived it to be including Palestine Mission to the UN.
Attorney General’s contention was not listened to by the court as it would breach the Headquarters Agreement between the US and the UN.
Breard v Greene 1998 (US SC)-
Respectful consideration should be given to given to IL
Intl. customary law principles will hold water only if they are in consonance with the constitution.
Prof VG Hegde– Indian courts and IL
Initially (1947-70s) Indian courts were obsessed with solving boundary and territorial issues in the light of the constitution.
In the 70s and 90s, they have expansive meaning to
Post Globalisation, courts have adopted a cautious approach. If there has been a clash between IL and constitution, more often than not, Indian constitution and statutes have been given preference.
Ist Phase (1947-1970)
The court examined the constitutional validity of Executive Action taken in respect of adjusting territorial boundaries.
Article 73 r/w Entry 14 of Union List-Entering into treaties with foreign countries.
Midnapur Zamindari Co. v Province of Bengal 1944
Dispute as to boundaries of two independent states cannot be the subject of Municipal courts.
Beru Bari Union case I 1960
The case concerned the transfer of certain enclaves to East Pakistan by an Agreement signed by PM Nehru.
Whether according to the executive agreement, the enclaves stand exchanged and whether they have undermined the constitutional provisions?
SC said that exchange required a constitutional amendment.
So if any territorial question arises, that requires a constitutional amendment.
Beru Bari Union case II (Ram Kishore v UOI) 1966 7J
SC did not agree with Beru Bari case I.
No constitutional amendment is necessary in case of readjustment or marking of territories.
Maganbhai Ishwarbhai v UOI 1969
Only cessation or ceding of territories require a constitutional amendment.
Indian courts have only given a creative/liberal interpretation to constitutional provisions to buttress IL norms.
Article 53-Executive power of Union
Article 73(1)-Executive power of the Union.
Article 53+73+Entry 14 of Union List– Entering into treaties with foreign countries and implementing such treaties.
Article 51- The State shall endeavor to-
(a) promote international peace and security;
(b) maintain just and honorable relations between nations;
(c) foster respect for international law and treaty obligations in the dealings of organized peoples with one another; and
(d) encourage settlement of international disputes by arbitration.
Article 51 was taken verbatim from Havana Declaration 1939.
It has to be read with Article 37-which talks that DPSP is nonetheless fundamental in the governance of the country.
The article was inserted keeping in mind India-Pakistan dispute.
Pakistan wanted Judicial Settlement and India wanted settlement by Arbitration.
Article 253 of the Indian Constitution-Place power in the hand of the Parliament to make laws for implementing international treaties.
Its a transformation doctrine.
Sexual Harassment law is taken from the CEDAW
Sebastian Francisco v The State of Goa
Annexation of Goa.
The argument against India-
India had illegally annexed Goa and is an occupying power so it is bound by Geneva Convention 1949 (Humanitarian laws)
Occupation means conquest by belligerent attitude and ends with subjugation. Once the occupation ceases, the protection also ceases.
Court favored India’s stance.
2nd Phase (the 1970s to 1990s)
A host of socio-political questions
Creative interpretation of IL took place in light of constitutional provisions.
Human Rights Law
ADM Jabalpur v Shivkant Shukla 1976
The issue was about fundamental Rights vis-a-vis emergency
Minority Judge Khanna read Article 21 of Constitution with Article 8 and 9 of UDHR
Majority Judgement is considered a blot on Indian Judiciary.
Jolly George Verghese v Bank of Cochin 1980
Whether S.51 of CPC was against ICCPR?
Article 51 talks about the arrest of Judgement Debtor in certain cases.
A.11 if ICCPR provides that no one should be arrested for violation of contractual obligations.
Judgment was in favor of JD but did not take into IL norms.
Even so, until the municipal law is changed to accommodate IL, Indian court is formed by the former and not the latter.
In case of doubt, National law is to be interpreted in the light of the nation’s IL norms.
Gramophone Co. of India v Birendra Pandey 1984
Most authoritative Judgement of SC on the applicability of IL in domestic spheres.
Whether goods coming from the 3rd country going to Nepal via amounts to importation under S.53 of Copyright Act?
Since Nepal is a landlocked state and has many transit treaties with India so the court has to honor those treaties which have assumed the character of IL customary norms.
Court took into cognizance transit treaties between Indian and Nepal.
3RD PHASE (the 1990s to Present)
Called as development context.
India had embarked on a new economic agenda.
Indian courts had to grapple with diverse issues such as arbitration, taxation, extradition matters, child custody, trade issues, environmental issues, etc and a host of other related issues.
Court took a cue from a host of international conventions especially from those related to Human rights and environment.
Vellore Citizen Welfare Forum v UOI 1996
The court examined in detail the concept of sustainable development
SDGs have become IL norms but its exact contours cannot be defined.
Case is important from Environmental law perspective.
MC Mehta v Kamalnath
Court talked about Public Trust Doctrine PTD taking inspiration from Roman law and common law.
PTD exists in public and environmental resources which are to be used for public goods and not for private/personal gains.
Vishakha v State of Rajasthan 1997
Court liberally borrowed from CEDAW convention 1978-79 which is UN General Assembly convention and outlawed sexual harassment of women at the workplace.
Read FRs of Articles 15, 19 and 21 along with the CEDAW convention.
If there is a vacuum in legislation regarding an issue like this, the court can borrow it from IL convention and read it along with the constitutional context of India including those conventions which India has not signed and ratified.
PUCL v UOI 2004
The constitutional validity of the POTA Act
Court took into account various IL conventions to define the concept of Terrorism/Aggression.
Especially refereed to Report of the policy working group on UN and Terrorism which urged the Intl community to find triple ways to tackle terrorism. SC acknowledged this but constitutional validity of POTA was upheld.
Tried to find a relationship between Human Rights and Terrorism.
Sarbanand Sonowal v UOI 2005
The issue of the illegal influx of migrants into Assam.
IMDT Act of 1993.
Court referred to various Intl. studies such UN General Assembly resolution on Aggression.
Union of India v Azadi Bachao Andolan 2004
India had a DTAC (Double Taxation Avoidance Convention) agreement with Mauritius.
A lot of foreign investors using Mauritius as a base for investment in India to avoid taxes.
SC read S.90 of IT Act along with DTAC-a international convention.
Satyam Infoway v Sifynet Solution 2004
Whether Internet domain names were subject to Trademark Rights?
SC analyzed the TRIPS agreement.
SC dealt with a host of issues in the 3rd phase.
Jeeja Ghosh v Union of India 2016
Petitioner is a disability rights activist. She was unceremoniously debarred from Jet Airways flight as she disabled. She alleged a violation of FR.
SC gave directives based on UN report on Standards relating to Disability.
On 21st February Personal Law Amendment Act 2019 got notified.
Leprosy got removed as a ground for divorce in various personal laws.
KS Puttuswamy v UOI
Indian state Practice has been precautious and gives pretense to IL norms when they are not in conflict with Municipal laws.
VCLT-Vienna Convention on the Law of Treaties 1969
Article 27-A party may not invoke provisions of domestic law to justify the violation of Intl. agreement.
Article 46(1)-That a state should not invoke the argument that its consent was not taken in a proper manner to be bound by the treaty because it violates its domestic/municipal laws.
Article 46(2)– If the violation of domestic law is manifest and DL is of fundamental importance, such can contend.
Article 69- If there is an extraordinary shift in the geopolitical situation of the state, the state can contend that it’s no longer bound by previous treaties.
These articles in a way establish the importance of IL. It’s not easy to violate the provisions of IL.
The correct sourcing, identification, and interpretation of IL norms for India remain a challenging task.
3RD UNIT- SOURCES OF INTERNATIONAL LAW
Very important because it is from sources that IL derives its validity.
There is not one court or authority where one can look to trace the source of IL.
Article 38(1) of ICJ talks about sources of IL
38(1)(a)-International Treaties and Conventions.
38(1)(b)-International Customs as evidence of general practice accepted as law.
38(1)(c)-General principles of law recognized by civilian nations.
38(1)(d)-Judicial decisions and work of Jurists. (Subsidiary means)
The distinction between Formal and Material sources of IL
1. Sources which tells us the authority behind those sources
2. Authoritative aspects of the source
1. Actual content or the subject matter.
3. Sources also mean provisions operating on a technical level as opposed to sources such as reason and morality.
An aspect of reason and morality have no role as far as IL is concerned.
Article 38(1) of ICJ
All UN members are ipso facto parties to ICJ as per A.93 of UN Charter.
Switzerland was earlier not a member of UN but yet party to ICJ
Treaties and Conventions
Known by a variety names-pacts, charters, declarations, covenants, conventions.
All these terms refer to similar transaction-a written agreement whereby the states participating bind themselves to act in a particular way or to set up a particular relationship between them.
Treaties signify a course of conduct that is legally binding.
A constituent of a valid treaty include-
1. Written Agreement
2. Legally Binding
States agree to act in a particular way or to set up a particular relationship between them.
Article 2(1) of the VCLT 1969–An international agreement concluded between states in written form and governed by IL whether embodied in a single instrument or in 2 or more related instruments whatever their particular designation.
Binding power is derived from Article 26 VCLT. The principle of bindingness is called PACTA SUNT SERVANDA which means every treaty in force is binding upon the parties to it and must be performed in good faith.
Kind of Treaties-
1. Treaty Contracts
Are agreements concluded between a section of states?
A number of signatories are not huge.
The subject matter is limited to the signatories and is of little significance to others.
2. Multilateral Treaties
A large number of signatories generally of a topic of international concern such as Human Rights, Genocide, Climate change, Vienna Convention on Diplomatic relations.
They are norm-creating treaties-normative treaties.
Lay down a norm of international concern.
3. Constitutive Treaties
Refer to treaties establishment of international institutions.
UN Headquarters Agreement.
They are the treaties broadly studied in IL.
Treaties Establishing a Regime
Such treaties will extend to non-parties.
Article 2(6)plays down the mandate the organization shall ensure that states who are not members act in accordance with principles of UN.
Treaties can develop or establish customary norms
Whether a treaty can subsume/engulf a custom?
Nicaragua case covered this aspect
The subject matter was self-defense which is a customary norm and enshrined in Article 51 UN Charter.
Held that incorporation of the customary norm in treaty norm does not dilute the independent existence of customary norm.
North Sea Continental Shelf case 1969 ICJ IMPORTANT
The case between West Germany and Netherland/Norway
The possibility that a provision in a treaty may constitute a rule when coupled with opinio Juris can lead to binding custom.
Seminal case for customs and law of the sea.
How reservation to treaties has been defined in IL?
Article 2(1)(d) VCLT
That reservation is a unilateral statement when signing, ratifying and acceding to a treaty whereby it purports to exclude or to modify the legal effects of certain provisions of the treaty.
The issue was highlighted in the case of North Sea Continental Shelf 1969.
A series of bilateral treaties between different states can become a norm of the fundamental norm.
For example– A treaty on drug trafficking is entered into by countries of Latin America. Some Asian countries also enter into similar treaty amongst them on the same subject and later EU countries also enter a treaty on the same subject. So it will become IL norm.
1st SOURCE- CUSTOMS
International Custom evidence of State Practice accepted as law.
State practice, general practice amongst state.
That practice has to be accepted as law. It’s a psychological element.
In any primitive society, certain behavior emerges subconsciously.
Customary norms of historical significance.
State Practice+Opinio Juris (Practice has to be accepted as law)
Something which is of antique origin
Not relevant in modern times where govt. functions and requirement of govt. are so complex.
Not codified but when societies get modern, they get codified
Two set of IL scholars-
One who denies the role and importance of customs
German Scholar W Friedmann– a custom not a good source as it is clumsy and slow moving because customs get stuck n do not move with times.
One who accepts the important role of custom
Antony Damato– Custom an important source of law is it is a universal application and is evidenced in the state practices.
Custom is relatively diminished different cultural and political traditions and myriad state activities.
Constituents of Customs
1. State Practice
Can be explicitly observed
2. Opinio Juris
Psychological factor or subjective factor
Segregate certain beliefs from the law. Just because there is a convergence of state practice on some point does not mean that it is a custom. Only those practices which have legal backing are customs as law for IL.
Opinio Juris Sive Necessitates
Segregate extraneous non-legal considerations from opinion-Juris
Libya v Malta 1985
The substance of customary law must be looked in actual practice and opinio-juris of states.
What factor constitute State Practice?
Duration, consistency, repetition, frequency, and generality.
Job Before ICJ to take into account these factors.
But not one duration, frequency in IL.
These factors are different from those in domestic law.
Asylum case Columbia v Peru 1950
An aspect of continuity and repetition. When can a practice be called a custom?
A Peruvian national was sought by the Peruvian government for instigating a rebellion. Columbia had granted asylum to him in its embassy in Peru but Peru refused to grant him safe conduct or safe passage to leave the country.
Columbia filed a case in ICJ defending its action. There was a regional agreement amongst Latin counties to define the nature of the offense in such cases.
Whether the offense was criminal or political?
Peru contended that offense was criminal and for that asylum cannot be given.
Columbia had a right to give asylum and Peru and a duty to give safe passage. Court noted that state practice, in this case, has been contradictory and uncertain so as to not amount to constant and uniform usage.
What exactly does the alleged customary rule specify?
Is the rule accepted generally?
Has the rule been asserted? If so in what fora?
Accepted by a group of states?
Is the rule associated with a particular category of states?
Is the alleged rule only one or there are other competing/variant rules?
Does the alleged rule precisely cover the case in hand?
State Practice and Opinio Juris are not only constituents of customs but are also intertwined together.
There have been instances of instant customs developing. This makes it more difficult to differentiate opinio juris and state practice.
Asylum case Columbia v Peru 1950
Whether the Peruvian national be given safe conduct?
Whether Peru or Columbia had the right to unilaterally classify the offense?
They referred certain treaties-
Bolivarian Agreement on Extradition 1911
Havana Convention on Asylum 1928
Montevideo Convention on Political Asylum 1933
Columbia argued that these treaties permitted it to define offenses unilaterally.
Court declared that Columbia did not have the right to unilaterally qualify offenses as there was not a binding custom for that.
Columbia has also not given evidence that there was a constant and uniform practice. This has to be read with state sovereignty. This aspect is an unquestionable fact.
Whether a single act of a certain state can constitute state practice?
No. Though it might do so if coupled with acceptance by many other states
North Sea Continental Shelf case 1969
Dispute between West Germany and Holland and Denmark
Centers on the aspect of maritime delimitation of North Sea.
Continental Shelf is valued.
West Germany tries to give a formula for delimitation.
Court looked whether that formula could constitute evidence of state practice.
The court said that custom can emerge in a short duration of time as well. Not necessary that a long time should elapse. But within the period in question, it should be state practice especially within those states whose interest get affected by such practice. Uniformity and Consistency of the rule are more important than a long period of time.
West Germany’s argument was not accepted.
Anglo-Norwegian Fisheries case 1951-
Between the UK and Norway
Centered around the issue of how to measure the breadth of the territorial sea.
The UK cited custom to say that a straight line should be drawn across the bays.
The court said that the actual practice of states does not justify this custom as a rule. There was also no uniformity and consistency.
Paramilitary activity against Nicaragua 1986 ICJ-
The landmark case on the use of force.
Whether the principle against the use of force is a binding custom in IL?
In this case, this principle is not uniformly and consistently followed.
We have to weigh the use of force vis-s-vis non-use of force.
That the conduct of state should, in general, be inconsistent with such a rule and inconsistency with such a rule should have been treated as a breach of the rule and not as a formulation of the rule.
The decision went against the US but it never adhered to it.
International Law Association-
Was set up in 1976 as an NGO but has many state parties.
Recommendation of this association is not binding but have persuasive value.
It gave a report in 2000 about the formation of International customary Law ICL.
That state practice should be verbal acts as well and not just physical acts.
Private acts will not count as state practice.
Omissions will also count as state practice.
On a particular usage, the state does not make a stand.
Once one has established usage, it becomes necessary to show how the state views its own behavior with respect to the usage in question. Till time state do not view their practices/behavior as legally binding, it will not constitute Opinio-Juris.
When a usage moves from non-binding to legally binding practice
SS Lotus case 1927 (Permanent Court of International Justice PCIJ)
This dispute arose between France and Turkey
There was a collision on the high seas between a French called lotus and a Turkish Ship called Buzkod. High sea is the territory which does not belong to any party country. It is open to all for the common benefit of mankind.
Certain Turkish Nationals had drowned. After the collision, the French ship reached Istanbul. Turkey wanted to prosecute the master of the Ship for manslaughter.
France said that it was an established custom that only that state is to prosecute to which the sea belonged (Flag State).
Whether the Turkish argument found favor with PCIJ?
PCIJ did not agree with the French Argument. Court declared even if such practice could be proved, in fact, it does not give rise to a valid custom because only if such abstention was based on conscious consideration of the victim state.
It excluded certain general course of conduct not backed by legal obligation.
PCIJ dissociated other obligations from legal obligations.
North Sea Continental case 1969-
It was a case between West Germany on one side and Holland and Denmark on other side
Issue- delimitation of the continental shelf.
Article 6 of the 1958 Geneva convention on continental shelf-lays down that where agreement cannot be reached, the boundary line shall be drawn using the principle of equidistance.
These countries had earlier tried to enter into an agreement which failed.
West Germany had only signed but not ratified the Geneva convention.
Holland and Denmark contented that formula of equidistance has become a customary norm.
Court did not agree with this contention and said that Article 6 of the Geneva convention did not reflect a customary norm. ICJ when into deliberations which drafted Article 6 in which there were so many skepticisms.
That practice should be virtually uniform which gives recognition that a rule of law was involved.
It was realized such norm making is very difficult.
Practice grow manifold.
Only when practice and opinio juris merge, that a valid customary norm develops.
The problem with opinion juris is how to measure it with exact precision.
Observation of state behavior is pretty difficult.
It will depend on how other states react to such behavior of a particular state.
Example-Unilateral intervention by a single state.
Unilateral intervention by NATO forces in Kosovo without the authorization of the security council. But later security council gave an opinion that peace and security of the whole world are being threatened.
Many commentators said new norm has developed.
This was rationalized as a unique case as rampant violations of human rights were taking place in Kosovo.
Enough state did not feel that it was a binding course of conduct.
No of States acceding to a particular practice-
This also leads to the formation of a customary norm.
Example-Delimitation of the territorial sea.
Before the Geneva Convention, delimitation was done by custom. 3 nautical miles (Canon fire) was the established custom. Slowly and steadily states started proclaiming 12 nautical miles and certain states started moving on the assumptions of 12 nautical miles. So this 12 nautical miles got converted into a Geneva convention thus becoming a binding rule.
This is the example when a new custom takes place of an old custom.
General Assembly Resolutions are considered to be a factor which develops a jurisprudence of Opinio-Juris.
Nuclear Weapons Advisory Opinion of ICJ 1996
Legality of the threat or use of Nuclear weapons.
The court observed that General Assembly Advisory opinions (GAAO) are of value as a state take into account GAAO as legally binding upon them.
One has to the content and deliberations preceding the adoption of GAAO.
In the General Assembly, one nation has one vote.
Opinio Juris as to its normative character.
The practice has to be distinguished from the norm which has a prescriptive value.
GAAO are persuasive.
REGIONAL AND LOCAL CUSTOMS
The pardon of proof is very high on the party which is basing its claim on a regional custom.
Columbia and Peru case.
The right of passage over Indian Territory 1960 ICJ.
Portugal claimed that there existed a right of passage over Portuguese enclaves in India basing its claim on local custom.
But Portugal could not substantiate its claim that that local custom has passed into a valid international custom.
Court said that though there was a local custom in the past allowing free passage and the practice was accepted as law but that local custom has not passed into the realm of international custom.
Anthea Roberts- Traditional and Modern approaches to Customary Law: A Reconciliation
Pages 757-760, 767-770, 772, 776, 777, 785, 786
By traditional, she means State Practice
By Modern, she means Opinio Juris.
Though both State Practice and Opinio Juris are necessary the latter can be dispensed with if there is extensive and uniform state practice in a strict sense.
That customs contours are not precise and easy to define. Depends upon case to case.
The traditional concept of custom centers around state practice. (Practice of strong states?)
By Modern centers around Opinio Juris. It’s more contemporary and dynamic. UNGA Resolutions and multilateral conventions where a hoard of states declare their opinions on a particular matter.
A scholar describes approaches to customs in 3 D’s-
Dinosaurs– refers to the traditional approach. fossilized, does not take into account current
Dynamo– refers to the modern approach. takes into account the realities
Dangerous– taking into account only declarations.
Most of IL commentators have subscribed to treaties rather than customs.
Using Dworkin, she talks about reflective Interpretative Approach.
She has tried to reconcile traditional and modern approach by-
Sliding scale methodology-
That the two approaches can be interchangeable by sliding scale methodology.
On this sliding scale, very frequent and consistent state practice establishes a customary rule without much opinion juris so long as it is not negated by non-normative intent by showing stronger show of opinio-juris as required.
At one end of the scale, there is frequent consistent state practice and at the other end, there is a stronger show of opinio-juris.
Paramilitary activities in and against Nicaragua-
When an old custom give way to a new custom?
ICJ went with the traditional method.
Kosovo Unilateral Intervention-
The illegality in the intervention as it violated UN charter
Precedential nature of this case is more problematic. Whether this can lay down a precedent.
NATO itself said that it should not have any precedential nature. One time event.
Prof. Antonio Cassese said that it could acquire the status of precedent in IL. NATO’s action may support an emerging custom.
Unilateral actions are being carried out by numerous states since long and are justified using the argument of Human Rights.
3rd SOURCE- GENERAL PRINCIPLES OF LAW RECOGNISED BY CIVILISED NATIONS.
This is the third source of IL mentioned in 38(1)(c).
But ICJ has never given any decision relying solely on this source.
Drafting History of this source-
The body predecessor to PCIJ had the same article. The drafting committee was concerned that there may be cases where there are no treaty or custom on an issue. So basing the decision on law recognized by civilized nations LRCN will be better than Non-LIQUET (refusing to give the decision in absence of law)
Rules can be deduced from principles. The principle is the mother, the rule is the kid.
Could these principles emanate from domestic legal system or should IL principles be leading source?
Difference between positivists and naturalists on this issue. Positivists stress upon the explicit source of IL.
Like we have the principle of pacta sunt servanda- every treaty is binding on the signatory state.
The principle behind Reparation
Chorzow Factory 1928 PCIJ
The case between Germany and Poland.
A 1922 treaty between Germany and Poland provided that Germany will give a portion of Upper Cynicia and in return, Poland will hand over the control of nitrate factory to Germany. But Poland seized the factory and did not return it.
PCIJ said it is a general principle of law every violation of law demands reparation and indemnity corresponding to the damage which the nationals of the injured nations have suffered.
Poland asked to make reparation to Germany for the losses.
Principle of Res-Judicata
That decision given between the same parties on the same issues cannot be adjudicated again.
Nuclear Tests Case 1996 IMP
Also important for the principle of Good Faith.
The principle of Good Faith was laid down in this case.
The case between Auz, NZ and France.
France had indicated its desire to go ahead with conducting a nuclear test in south pacific.
Australia and NZ contented that France cannot do that in a territory which is not it’s own.
Relied on good faith but did not rely on 38(1)(c) but rather on Article 31 of VCLT which talks about rules of interpretation. It also mentions Good faith.
It gave rise to the view that ICJ is not basing its decision explicitly on 38(1)(c) but basing its decisions on other conventions.
The Genocide convention case.
Relevant for principles of Res Judicata, good faith, etc.
The ever-evolving nature of principles.
But nowhere laid down that judges need to take into account the ever-evolving nature of principles.
But Judges have given a diverse opinion on this issue.
Principle– Inter-generational Equity
Pulp Mills on river Uruguay 2010
Judge Trinidad shared his views on this issue.
General principles of law are ever evolving and emanate from human consciousness and it is the task of judges to highlight.
But his opinion was not part of the concurring opinion.
Subsuming of General Principles of law within the treaty law and customary law-
Chorzow Factory case.
Court held that reparation is required under IL. Its prime activity is to decide the ramification of breach of a treaty.
So the general principle got subsumed in the treaty law concluded between the two countries.
Application of the Interim Accord of 13/09/1995 (2011)
Between the former Republic of Macedonia and Greece.
Greece contended that it is a general principle of IL that a party which has not performed its side of the contract cannot expect the other party to fulfill his contractual obligations.
ICJ did not base its verdict on Article 38(1)(c) but relied on other features of the case.
Belgium v Senegal 2012
Court moved its understanding on the issue that the state cannot invoke its domestic for violating IL obligations.
But its based its decision not on general principle but customary law.
Equity as a general principle of law
It’s explicitly mentioned in Article 38(2) of ICJ convention.
If the party so agree the court can decide the case on the principle of ‘Ex acqueo ethono’ ie in the interest of justice.
This can be done by adopting the principle of Equity.
Whether Equity can an independent source in itself or it features u/a 38(1)(c) or 32(2)?
Burkina Faso v Mali
Dealt with the delimitation of land frontiers.
The court did not base its decision explicitly on 38(2) but the court discussed the principle.
The court discussed 3 forms of Equity-
Equity Contra Legem (Contrary to Law)
The court can decide as per equity but it can be against the law.
Equity Prater Legem (in addition to law)
Equity which is in addition to law or substantiating the law.
Equity Infra Legem
Equity within the law.
Seems in conformity with art. 38(2)
4th SOURCE- JUDICIAL DECISIONS AND WORK OF JURISTS
38(1)(d)-Judicial decisions and work of Jurists. (Subsidiary means)
Writings of highly qualified publicists
Judicial Decisions of ICJ-
Questions of whether judges make v Interpret Law?
The predominant view is that they only interpret a law.
Helped in determining exact contours of a treaty and determining when a customer has acquired the status of IL norm.
Whether Judicial decisions have precedential value?
Article 59 of ICJ lays down that judicial decisions are binding on the point of law decided and only between the parties between whom it has been decided.
Judicial decisions are non-binding as a whole to any other party except the one who was party to such a decision.
How about domestic judicial decisions?
No. Such judicial decisions only have a supplemental value to the argument parties are making.
Parties can supplement their arguments using decisions rendered by municipal courts.
ICJ Arrest Warrant case 2000
Between Belgium and Congo
Whether heads of states and foreign minister enjoy absolute immunity for crimes they have committed during their period of office? If Yes then whether there is an exception to crimes against humanity and war crimes?
Parties relied on decision given by the UK House of Lords in Pinochet case and Gaddafi case.
The court said whatever happened in the UK house of lords can be seen as a form of customary law.
The exception was not given in this case. And that decision given by municipal courts is not the source of IL. They are only supplementary to the primary source.
Jurisdictional Immunities of State 2012
Between Germany and Italy with Greece intervening
Court had to decide the question of jurisdictional immunity of state.
Whether there is state immunity wrt to commercial activities undertaken by the state?
The decision gave by the municipal court only serves as state practice.
WRITINGS OF HIGHLY QUALIFIED JURISTS
Highly acclaimed scholars such as James Crawford, Rosalyn Higgins, Christopher Greenwood, Bruno Simma, etc.
But only as a subsidiary means.
Unlike earlier, today there is a plethora of writings by a plethora of writers.
So there is skepticism today regarding scholarly writing.
4TH UNIT- CONCEPT OF STATEHOOD
James Crawford- ‘Creation of States in IL’
Studying in the broad framework of subjects of IL and Self-Determination and also Recognition.
IL works on subjects of IL
Who are these subjects?
Those entities which can be considered as legal personalities.
An aspect of legal personality is tied up with the rights and duties.
Any entity which has rights and duties or is subject to rights and duties is said to be having legal personality in IL.
Traditionally was believed that only States can have legal personalities under IL and hence be the subjects of IL.
Today this concept is debatable as other entities such as NGOs, International Organisations, etc have also arisen competing with state and have legal personalities.
Groups carrying out International Terrorism
The state is the primary entity of IL rather than the only entity in IL.
Criteria of Statehood-
Two theories two understand this concept-
The DECLARATORY theory of Statehood
Creation of statehood is a matter of Fact and not of Law.
Recognition, on the other hand, means an entity will be considered as the state is recognized by the world community as such.
That matter of fact is a matter of everyday reality.
The CONSTITUTIVE theory of Statehood
Moves on the premise that statehood is a matter of law and not merely of fact.
More in tune with ground realities as it looks beyond just formality of declaration.
ICJ generally relied on a mix of both.
Montevideo Convention on Rights and Duties of States 1933
Article 1 lays down the criteria of statehood under IL-
1. Permanent Population
2. A defined territory
4. Capacity to enter into relations with other states.
5. Permanent Population
Western Sahara case 1975
Dealt with the issue of permanent population
A defined Territory
Territory should be definite
Two aspects of governments- De Facto and De Jure
Here only De Facto matters
Capacity to enter into relations with other States
A state should be capable of entering into relations with other states.
The advisory opinion of ICJ on Western Sahara 1975
Whether a nomadic entity is not a state?
Western Sahara lies south to Morocco and west to Mauritania.
Spain wanted to hold a referendum which Morocco disputed the referendum demand. Mauritania also claimed Western Sahara.
Whether W. Sahara was a Terrae Nullius at the time of its annexation by Spain?
ICJ held No. It was occupied by local people who owed their allegiance to local chieftains.
This was an important finding by ICJ. That there was a permanent population in Western Sahara although it was nomadic but has social and political ties with local chieftains.
Falkland Island dispute between UK and Argentina
Some amount of population is required.
Defined territorial base
Whether an entity operating on undefined/uncertain territory cannot be called state?
Not necessary provided other criteria of statehood are met.
Israel is a state and member of UN notwithstanding its territories not defined with Palestine because it fulfilled other criteria statehood.
Palestine’s case is similar. Exact contours of Palestinian is not certain yet it is a state.
North Sea Continental Shelf case 1969. The court elaborated on the issue of definite territory.
Any rudimentary form of govt. which is effective is sufficient for an entity to be considered as a state.
Sophisticated forms such as the legislature, executive and judiciary not necessary.
De Facto Government
An actual government is carrying out day to day operation.
For example- In a civil war a non-legal entity controlling vast swathes of territory.
De Jure Government
A legal government which may not be carrying out day to day operation.
Generally both this merge. These are separate only in cases of conflict and wars.
This criterion has to be understood with the 3rd criteria ie capacity to enter into relations with other states.
This is also tied with the concept of recognition. Till the time a state can carry out its relations with other states, it cannot be said to be recognized.
Rights and liabilities of a non-recognised state or its citizen cannot be adjudicated in the courts of other states.
Golan Height case between Syria and Israel.
Aaland Islands case 1922
They were part of Finland.
Finland itself was part of the Russian Empire
It was only after the November revolution that Finland asserted its independence.
Demography of Aaland was Swedish.
So both Sweden and Finland contended the territory.
PCIJ looked into the legal status of the island by appointing a permanent committee of Jurists.
These jurists proceeded on the premise of effective government which they thought was lacking in Aaland Island.
They said till an effective government comes into place, its legal status cannot be determined.
Case of Yugoslavia
New nations emerged out of Former Yugoslavia.
The case of Bosnia and Herzegovina. But their governments were not domestic in nature in a strict sense.
Does the government necessarily need to be domestic in nature?
Bosnia and Herzegovina were considered as independent states even when their government was not domestic/municipal in nature. A Patent peace accord was signed between the strife-stricken country to appoint a high representative to look after the day to day functioning of the government.
Despite that Bosnia and Herzegovina were considered full-fledged states.
Kosovo became a separate state in 2008 but its administration was left to supervising authority.
Recognition of states versus recognition of the government
For example, North Korea as a state is recognized by the US but not its government.
Various self-determination movements in history
An entity breaks away from the mother state to become a new entity.
The moment a state comes into existence after breaking from mother state, there is a question of its legitimacy of existence.
Means a territory is desirous of a new future for itself.
Determination of future by itself.
Either it secedes or gets autonomy within the mother state.
Given bits of autonomy under the Indian scheme (separate constitution and flag).
Allegedly wants to secede and merge with Pakistan
Example of Internal SelfDetermination
Know as an extreme form of self-determination.
Book- The right of self-determination under IL by Millennia Stereo. (Chapter 4)
How Intl. the community has looked at the aspect of Self-determination?
Lenin and Woodrow Wilson advanced the idea of self-determination.
Lenin’s was based violent secession from Bourgeois government.
Wilson said that it should be based on the free will of people in a democratic process.
No implicit/explicit definition of self-determination.
Article 1 para 2 of the UN charter talks about SD.
Article 55 also talks about SD.
The external form of self-determination is looked at with suspicion under IL. It is not met with admiration.
It is ironic that the principle of SD occurs in UN Charter and has become the customary norm and has become right erga omnes (right owed to all) Yet the extreme form of self-determination is looked with suspicion and not advisable. An entity clamoring for SD has to make so much efforts to be recognized by other states.
UN Resolutions on SD
Resolution 1514 of 1960
Says that all people have the right to SD and by virtue of this right they freely pursue their economic, social and cultural development.
Friendly Relations Declaration of 1970
Provides the most authoritative and detailed articulation of SD.
Every state has a duty to promote the principle of right and of self-determination of people.
Every state has the duty to refrain from possible actions which deprive people of their right to SD and freedom.
ICCPR and ICSR
Article 1 states that all people have the right to SD and parties to the covenant have a duty to promote that.
League of Nations mentions two kinds of territories
1. Non-Self governing territories
2. Certain territories which were thought to be unable to govern themselves were placed under the supervision of the colonial power with a rider that supervisor power shall gradually assist them in self-governance.
Western Sahara- under the supervision of Morocco
Togoland– British and French
Similar to non-self governing territories. The difference is that they are controlled by more than 1 country under the supervision of the UN.
UN is more actively involved here.
Duty is laid down on administering powers to assist them in self-determination.
All these lead to the bolstering of the right to SD.
Self-Determination in practice
Looked down with suspicion and frowned upon.
Was looking as legal only if SD was coming out of decolonization movement.
Even in contemporary IL is accepted only in decolonization paradigm.
If the superpower recognizes an entity as independent, some sort of legality is attached to it.
Entities do breakaway from mother states.
Three theories to justify external SD-
Nationalist Theory of Secession
Holds that terrestrially concentrated areas may secede only if it is a nation and the majority of people therein have common linkages and they accent to it.
Choice Theory of Secession
Any geographically defined group may secede if the majority of its members chose to do so.
Modern IL theory of secession
This is the just cause theory of secession.
A group can secede if it has a just cause for doing so. If it has been the victim of systematic discrimination, abuse, etc.
A-Lande island case 1920
How Finland was claiming sovereign over that.
Islanders wanted self-determination and wanted to secede from Finland.
Intl. comity of Jurist denied the general right of SD and said that SD can be exercised as a last resort when the state fails to protect the rights of the entity in question.
Are minorities and people the same?
One of the criteria for secession is that entity should consist of people. But the definition of people is not so clear.
In Aland case, it was held that all minority are people but vice versa is not true.
Unilateral right of secession?
In Re Quebecois 1998
Deals with the Quebec province of Canada.
The residents of this state are French-speaking and wanted to secede from Canada.
Court held that no unilateral right of secession exists.
Quebecois had wide representation in Canada.
The corresponding principle of Territorial Integrity (Uti Possidetis)
IL frowns at the external form of SD because it clashes with already established principle of territorial integrity and uti possidetis and also ‘jus cozens’ norms.
Marc Weller– talked about these clashes. Right to unilateral secession stands in obvious tension with a claim to territorial integrity and unity of existing states.
Democratic Republic of Congo
There was a sub-province Katanga which wanted to secede from Zaire arguing that state was not giving them effective guarantees.
State argued denied the accusations.
Katanga was not allowed to secede but was given some more autonomy.
African Commission on Human and People’s Rights opined that in absence of concrete evidence of violation of human rights, Katanga is obliged to exercise an alternative SD within Zaire compatible with its territorial integrity.
East Timor and Portugal
Timor lies in south-east Asia close to Indonesia and Australia.
Was colonised by Portugal in 16th CE and gained independence in November 1975. But within 10 days Indonesia invaded and acquired it.
A decade long conflict ensued between Indonesia and separatists.
In 1999, Indonesia relinquished its control following UN sponsored Act of SD.
Became independent in 2002 and also became first state in 21st century to join UN.
Portugal v Australia ICJ
Australia had concluded a Timor gap treaty with Indonesia 1989 relating regulation and appropriation of natural resources in Timor and also delimitation of continental shelf. It means Auz recognised Indonesia as De Jure ruler of Timor.
Portugal sued in 1991 Auz alleging that latter does not have any legal right to enter into treaty with Timor.
Auz argument was jurisdictional. That court has to adjudicate upon rights of 3rd party Indonesia.
ICJ accepted Auz contention to decide the legal status of East Timor.
Whether ET was independent (it had right of SD)?
Whether Indonesia annexation was illegal?
Whether East Timor was a non-self governing territory of Portugal?
Whether East Timor a non-self governing territory of Indonesia.
ICJ Portugal was not considered the official administrator of East Timor. Does it mean Indonesian invasion was illegal?
A SL judge (Veeramantri) dissented and said that right of SD and permanent sovereignty over natural resources are rights erga omnes belonging to the people of the East Timor. Hence they generate a corresponding duty on Australia to recognise the right of Timorian people.
Kosovar Unilateral Declaration of Independence 2010
This case of marks a watershed as far contours of SD goes.
Whether a unilateral declaration of Independence is legal under IL?
Yugoslavia consisted of 6 republics-
1. Bosnia & Herzegovina
Borders were formed on ethnic lines but all clamoured for SD as they did feel part of larger Yugoslavia more as an ethnic issue.
Kosovo was an autonomous republic within Serbia.
95% Kosovars were Albanians and did not consider them part of Serbians.
Later a president of Serbia committed atrocities against Kosovars as a result of which civil war happened.
UN intervened and peace keeping forces were placed there.
UN and EU assisted Kosovo in attaining its independence.
Finally in 2008, Kosovo unilaterally declared its independence from Serbia.
IL looks down unilateral declaration of independence as illegal. (Para 56)
ICJ said that such declarations of independence can be legal or illegal but to decide the present case there is no need to decide in general if/whether entities have positive right/entitlements to break away from larger mother state. ICJ did not delve much into this issue and said that they are not laying any standard or principle of law.
After this case, situation under IL has very much altered. Kosovo is now recognised by 119 states but still not member of UN as its independence was marked by reluctance of Russia and China.
North Caucasus Region (Russia and its constituents republics)
It is a federal republic under Russia.
Before the Breakup up of USSR, Chechnya was part of Ottoman Empire and Russia had acquired it by conquest.
After dissolution of USSR, it proclaimed independence, it was forcibly brought back into Russia.
It is a federal republic and enjoys relative autonomy within Russia.
But Chechens are clamouring for separate country not subjugated/dominated by Russia.
Whether their demand is justified?
SD is legal under IL only when looked from decolonisation perspective.
Foremost condition is that they must be people. There are subjective and objective analysis.
A group in order to constitute people must subjectively feel that it is different from the rest of the inhabitants of the mother state.
Should also satisfy the objective criteria of uniqueness in terms of its territory, ethnicity, language, culture, language, religion, etc.
Though most Chechens fulfils the subjective criteria. Whereas most of Russians are Orthodox Christians but Chechens are Sunni Muslims. They are also ethnically different.
This case has not come to ICJ as Chechens are still struggling for SD.
Westerns nations have refrained from interfering due to fear of Russian antagonism.
This tells that backing of world power is an important factor. Chechens lack UN and Western Support.
South Sudan’s secession from Sudan is the first SD movement that occurred in the 21st century.
South Sudan came into existence in 2011. In January 2011, majority of South Sudanese voted in a referendum to secede from Sudan.
Referendum is considered the most legitimate tool of external SD.
Sudan had been a British Colony and gained independence in 1956 but South Sudan continue to be included in Sudan under the IL principle of Uti-possidetis (as far as may be IL frontiers should remain intact).
British colonial discriminated between North and South Sudan as a result of which North established political and economic dominance over south and began an infrastructure destruction of south.
Though both North and South Sudan share Black-African ethnicity, religiously former is predominantly Muslim but the latter predominantly is non-muslim.
Islamisation of Sudan.
1962-First civil war (internal autonomy promised)
1983-Islamic policies imposed
1994-declaration of principles being negotiated.
Omar Al Bashir’s aggressive policies.
South Sudanese liberation movement led to the signing of a peace deal which provided for more autonomy and holding of referendum.
Non-self governing territory of Morocco.
Due to colonisation, it is agreed that borders have been illogically and arbitrarily drawn.
SD is justified under IL only in decolonisation paradigm.
Delayed decolonisation- as in case of South Sudan.
Case of Georgia (South Ossetia & Abhkhazi)
It’s a ethno-political conflict.
Whether Ossetia and Abkhazia exists as nation is a disputed fact as they are recognised only by 4-5 nations.
South Ossetia clamoured for independence from Georgia in 2008.
Georgia was part of erstwhile USSR.
When USSR broke down, it claimed its independence from Russia.
Within Georgia, there was an autonomous province South Ossetia which is culturally more Russian.
Georgia had frosty relations with Russia.
South Ossetia opposed imposition of Georgian language and alleged cultural suppression of South Ossetia by Georgia.
2008-Russo-Georgian War- Russia annexed South Ossetia.
USSR had various gradations of administration, the highest being Union Republic and then Autonomous Republic and then Autonomous Region. Georgia was a Union Republic which means it could have a titular title of a nation but it would still be within the broad framework of USSR. Union Republics had theoretical right to secede and substantive administrative power. South Ossetia was an Autonomous Region within Georgia. Within a Union Republic, Autonomous Republics and Autonomous Regions used to exists.
Recent SD movements-
Kurdistan and Catalonia.
Economic and Political Weekly Article- ‘Where does India stand on right to SD?’
Was written in the backdrop of JNU controversy.
Should demand for SD be considered criminal?
UNGA resolutions 1967 and 1970 (Friendly Relations declaration) and they provided for ….
But India made certain submissions when deliberations were happening.
India did not subscribe to the framework of SD which is outside decolonisation paradigm.
ICCPR– principle of SD appears under Article 1.
ICESCR– principle of SD appears under Article 1.
When India became party to these covenants, it made a declaration regarding these articles- ‘That India declares that SD applies to people only under foreign domination and not apply to sovereign independent nations or a section of of people.’
Indian constitution- Article 1(3) describes 3 kinds of territory of India.
2. Union Territories
3. Territories which may be acquired.
The word secession of territories has not been mentioned.
Beru-Bari Union reference case 1960
Negotiated between India and Pakistan under which certain territories were to be given, taken and exchanged with Pakistan.
Court held that the agreement amounted to ceding of territories for which Article 1 has to be amended.
SC held that though secession is not mentioned in the constitution, it can happen nonetheless as it can happen within the sovereign prerogative.
Capacity to enter into relations with other governments
This means sovereign and independent.
Position of India in colonial times.
Whether state has to keep fulfilling these criteria?
No. Once a state is always a state. Otherwise it would result in lot of chaos.
How ICJ has looked SD- from colonization perspective.
- ASPECT OF RECOGNITION
- Two perspectives-
- Recognition of States
- Recognition of Governments
- We have to look at the constitutive theory of Statehood.
- Declaratory theory stated that creation of state is a matter of fact.
- Constitutive theory states that only when an entity is recognised by other states, it is said to be a State.
- Lauterpacht opined that as soon as states are born, other states have a duty to recognise. He is more line with the declaratory theory of statehood.
- Whether there is duty on other states to recognise other entities as states?
- No. It depends upon a host of factors including international politics.
- Kosovo 2008
- Kosovo declared its independence unilaterally in 2008.
- Though Kosovo got recognised by 119 Nations but its entry in UN has been blocked by Russia and China.
- So recognition by world powers is necessary in practice.
- It suffered from same problem as Kosovo.
- TERRITORIAL ASPECT
- De-facto authority can be considered a state if other states grants it recognition under IL.
- Generally entities which do not have effective territorial base are not considered State. But the aspect of recognition is in conflict with this.
- But states have duty not to recognise entities which have been brought out illegally which are against the PEREMPTORY NORMS OF OF IL .
- Illegally created territories example-
- Southern Rhodesia
- It was formerly a colony of UK
- In 1965, it declared itself independence unilaterally.
- Security council asked states not to recognise South Rhodesia as independence was declared by a white minority government which did not look into the aspiration of the Black majority
- It was a region in Apartheid South Africa.
- The area was a black majority.
- Security Council asked states not to recognise Bantistan as it was based on racial segregation policy of apartheid regime of South Africa.
- Southern Rhodesia
- Article 53 of VCLT mentions peremptory norms of IL.
- They cannot be violated but can only be modified by other peremptory norms.
- Jus Cozens is a subset of peremptory norm.
- What if State do recognise such entities?
- In such situation, there is anomaly/confusion in IL.
- Such recognition amounts to illegality.
- Regulation v Legality
- Territories created against peremptory norms are not considered illegal.
- In practice not all states follow the mandate of UN.
- For example- Venezuela recognised South Ossetia.
- IL in such case will regulate it.
- But practice is different than theory.
- Conditions of recognition are not positive conditions
- Non-fulfilment of these conditions cast a duty on other states not to recognise such states where conditions of recognition are not fulfilled.
- Turkish Republic of Northern Cyprus
- This republic was created after Turkey invaded Cyprus in 1975.
- All states were called upon by UNSC resolution 1983 and 1984 to not recognise Cyprus and support secessionist activities happening in Cyprus.
- There was exchange of ambassadors between Turkish Republic of Northern Cyprus and Turkey.
- Diplomatic exchanges were considered illegal.
- Continued Presence of South Africa in Namibia 1971 (Advisory opinion)
- Whether all activities carried out an illegal annexation be considered illegal?
- Basically Namibia was a mandate territory of South Africa but its mandate was later withdrawn by UN. But SA continued its presence in Namibia.
- ICJ held that continued of SA in Namibia is invalid under IL but certain activities carried out by SA as regard to private matters of citizens such as marriage, birth registration is legal for the sheer convenience meted out to citizens.
- Transmitra Province in Moldova
- Transmitra is a province in Moldova. It declared its independence from Moldova but was not recognised by bordering states especially Russia.
- Transmitra was dependent on Russia for recognition.
- Many accused Russia of blackmailing Transmitra.
- Moldova was ready to grant Transmitra an autonomous status.
- Russia was not very forthcoming in recognising Transmitra independence.
- When entities have been given recognition?
- Recognition by happen immediately or it can take time
- Generally the moment the mother state accord recognition to the newly created entity, then it is easier for world community to recognise such entity.
- Certain cases studies where recognition had been granted immediately by mother states–
- Federal Republic of Yugoslavia
- It broke into 6 constituent units.
- It was not a very fought after break-up but was pretty peaceful.
- Dissolution of USSR was largely peaceful.
- Break-up of Chezoclovakia was also peaceful.
- Federal Republic of Yugoslavia
- Cases where mother entity did not recognise the seceding entity-
- It was not recognised by Serbia
- Many regard it as most successful case of external-self-determination
- South Sudan
- Sudan agreed to the referendum result of South Sudan.
- Dissonance between declaratory and constitutive theory of statehood and aspect of recognition-
- Act of recognition is a political act but it has certain legal consequences.
- States have discretion to recognize.
- Legal consequence of recognition-
- Mutual rights and obligations are established between the states.
- In principle recognition is a declaratory act but constitutive in operation.
- Retroactivity of Recognition
- Whether recognition has a retrospective effect?
- Read from Malcolm Shaw.
- Two perspectives-
- ILLEGAL STATES
- States that continue to operate without recognition.
CONCEPT OF TERRITORY UNDER IL
- As per Montevideo convention, one criteria of statehood is territory.
- Till time time there is a territory, there cannot be exercise of sovereignty.
- A sovereign should have title to a territory.
- How title to a territory is created?
- There are various modes of creation of title to a territory
- Occupation can only happen when a territory is terrae Nullius.
- It happens when a sovereign is exercising a continuous and peaceful possession of a territory over a period of time.
- Conquest can also result in title to a territory but is now outlawed in IL.
- Subjugation of one state by another state by use of force.
- It is the peaceful passage of sovereignty from one sovereign to another.
- Bombay was gifted by Portugal to Britain.
- Accretion or Accession
- Its a geographical process through which new lands are accumulated in new territory. May be as a result of volcano, creation of island, evasion of sea water, rive changing its course, etc.
- It does not happen in a case, where the land is already in possession of another sovereign.
- Western Sahara case 1975
- Whether the territory in question was terrae nullius at the time of colonisation?
- Court said that terrae nullius is legal term of art used when the mode of title to a territory is by occupation.
- Occupation was defined legally as original means of peaceably acquiring sovereignty over a territory otherwise than by cession or succession.
- Difference between cession, succession and occupation.
- Court unambiguously held that state practice of the relevant time indicated that territory inhabited by tribes having social and political organisation were not regarded as terrae nullius.
- Here a particular sovereign could be unknown or his/her tile could be illegitimate to start with but it got legitimised by peaceful and continuous possession and enjoyment over a period of time.
- Majority of disputes have arisen under this criteria.
- Island of Palmas Arbitral Award 1928 (PCIJ)
- Certain principle of law were enunciated for the first time in this case.
- The issue was between Netherland and US over parcel of land Palmas situated in South Pacific situated near Philippines.
- US made the argument that it had discovered this island hence it has title to it.
- Whether aspect of discovery has strength over aspect of long and effective possession in IL?
- US goes back to year 1898 to argue that Spain ceded the island to US by a treaty and at that time Philippines was territory of Spain. Discovery was made by Spain and when Spain handed this territory to US, US got title to it.
- Netherland argued that it had been in continuous and peaceful possession of the island since 1601.
- US also argued that the island is in more geographical proximity to Philippines than to Indonesia-the colony of Netherland.
- The island was declared to be part of Netherland East Indies (now Indonesia)
- Argument of long and effective possession found favour as opposed to the argument of discovery.
- Held that title to a discovery is an inchoate or incomplete title. To convert this incomplete title into complete title, long and effective occupation/possession is necessary in a reasonable time.
- Discovery only acts as a notice for other states that that discoverer is claiming title over a territory.
- Argument of Long and Effective Possession means-
- Long, Continuous and Peaceful show of sovereignty.
- Sometimes even planting of flag amounts to show of sovereignty.
- Concept of Contiguity/Geographical Proximity
- William Edward Hall.
- A settlement is entitled to land which is not only inhabited but it can bring under its control those territories based on their security.
- China often makes such argument regarding some islands in South China Sea.
- This arguments held sway in 18th and 19th century but now was gradually waded.
- Arguments based on History
- To be seen in terms of long and effective possession. It is a sine-qua-non
- Eastern Greenland case of 1933.
- This was between Denmark and Norway.
- They are nordic countries and were united till 1804. By treaty of Kiel Norway was subjected to Swiss sovereignty. By the same treaty Greenland was ceded to Denmark.
- Talked about who owns the Artic.
- Denmark won the case.
- Between 1721 to 1921 Denmark established and administered colonies on south-western part of Greenland. It meant other parts of Greenland were free for other countries to explore. UK and Norway were exploring those areas.
- Denmark made series of diplomatic overtures with aim of establishing complete sovereignty over whole of Greenland. US agreed but in return asked sovereignty over some Carribean Island. Britain also agreed on the condition that Denmark should obtain consent of UK if it want to sell it in future.
- Norway Minister Ihlen said verbally hat he is alright with Denmark exercising sovereignty over whole Greenland. This was not a written declaration.
- Norway carried on certain administrative acts on Eastern Part of Greenland to which Denmark objected.
- After World War Denmark made formal declaration of sovereignty over Greenland.
- Norway claimed that Denmark has failed to prove long and effective possession over Greenland.
- PCIJ made distinction between long and effective possession of normal/inhabited territory vis-a-vis long and effective possession of inhospitable terrain/territory.
- Court said that in the latter category there might not be much evidence of long and effective possession in the latter category.
- PCIJ treated Greenland as a different kind of territory and watered down principle of long and effective possession to hold that sovereignty over Greenland lies with Denmark.
- Greenland was treated as sui-generis case.
- The minority judge Angilotee did not agree to this and accused Denmark of cajoling with countries by diplomatic overtures on this issue.
- 8 other factors apart from long and effective possession.
- Article 38 of ICJ
- Arguments based on treaties hold relevance.
- Circumstances around treaty are also looked into (VCLT)
- Island of Palmas case.
- Argument of Geography was made by US.
- Territorial conflicts arise on the basis of geography
- Economic justification for territorial claims assert that concerned territory is necessary for economic viability and development of the claimant state.
- Zaire and Katanga province example.
- Russia claiming South Ossetia.
- In Europe, language has been the main unifier and in case of Middle-East, religion has been the main unifier.
- Effective Possession
- Scholars are divided over what constitute effective possession as it cannot be objectively ascertained. It is a matter of fact.
- Three strands of thinking-
- Those who proceed on the premise of total possession at all times.
- Another stream of scholars say possession should be there at critical junctures. Establishment of governmental control sufficient to provide security to inhabitants. Occupation must be real and effective.
- Another line of thinkers talk about exploitation of natural resources. That territory should settled throughout and there should be appropriated utilisation of natural resources.
- In the form of social justice.
- Ottoman Turks example.
- Anti-colonialism argument.
- Its an exclusionary claim. Claimant argue that a particular minority has right or duty to control certain territory. Conquerors and colonial powers often used to make such claims.
- In modern times it is shrouded in the claim of property by virtue of having capacity to develop the concerned land’s to its fullest extent.
- Given that international order has undergone a democratic shift, such claims are not explicitly made.
- There have been immense claims based on History.
- Aspect of discovery has also to be taken into account.
- Historical claims often related to cultural claims. Greater the cultural importance of a territory, greater the historical claim of that territory.
- Temple of Priya Vihar (Cambodia v Indonesia)
- This temple was disputed between Cambodia and Indonesia.
- Uti Possidetis
- It is a principle which is used to post colonial boundaries in Latin America, Africa and Asia.
- Its a doctrine under which newly independent states inherit the administrative boundaries drawn by colonial power.
- There has been instances in Africa where many EU countries used to govern same piece of land and have drawn puzzling boundaries.
- Decisions rendered by ICJ
- Minquiers & Ecrehos Island 1953
- Between France & UK
- These islands located between British coast of Jersey & French coast of Normandy.
- Dispute arose over territorial sovereignty.
- Arguments were made on the basis of treaties and effective control.
- ICJ did not find any merit in treaties predating 1648 as they were feudal titles.
- Concept of Critical Date-
- Not an objective concept as it varies from case to case.
- A judge said that suzerainty is not analogous to sovereignty.
- Sovereignty is will of people.
- Rights and obligations were not certain.
- Court said that there was not a valid treaty claim and found that Britain exercised sovereignty and effective admin control over the islands which included, local ordinances, judicial proceedings, registering deeds, conducting census, etc.
- Sovereignty over certain Frontier Lands 1959
- Belgium v Netherlands.
- There were certain border plots.
- Border plots were surrounded by Belgian and Dutch enclaves.
- Court gave credence to treaty laws and effective possession.
- There was a 1843 boundary convention which established the border between these two countries that gave the plots to Belgium. It stemmed from another treaty-Treaty of London 1839 which had made Belgium and Netherland separate nations.
- Another convention of 1842 provided for status quo regarding boundary under the principle of uti-possidetis.
- Hence the court held in favor of Belgium.
- Court rejected the Dutch claim that 1843 convention was a mistake and did not reflect the intention of Netherland.
- Argument of Effective Possession– Court rejected Netherland’s argument that certain enclaves were under their effective possession. Court said that activities carried out by Netherland were not very extensive and they were carrying out those activities in their part of the commune.
- Cambodia v Thailand (IMP)
- Dispute centred around Temple of Preah Vihar located on the border of Thailand (Siam) and Cambodia (French Occupation).
- The action was brought by Cambodia and claimed that Thailand violated its territorial sovereignty by occupying the ruins and the surrounding land of the temple.
- Both nations wanted the temple because of its cultural and artistic importance.
- Temple was actually located in the Thai side of the border but it was a common border between two nation and temple was jetted into the Cambodian plane.
- There was 1904 boundary treaty between France and Siam which demarcated the border. But the treaty was actually never adopted but Thailand did not protest the French activities over the temple ruins.
- Finally Cambodia won the case.
- France claimed estoppel against Thailand as it did not opposed French activities which implies implicit acceptance of French authority over the disputed land by Siam.
- Article 38(1)(c)-General principles of law accepted by civilised nations. Estoppel is one of such principles.
- Principle of Uti-Possidetis was also looked into.
- Second argument was about effective possession– Principle of Effective Possession comes into all such cases and that’s why its considered sine-qua-non of sovereignty.
- Thai argument of Effective possession was rejected under the reason that Thailand’s activities were conducted by local authorities, and were very and routine which does does not annul the border line.
- Court accepted the 1904 boundary treaty, border that were drawn on that bases, to hold that the temple belongs to Cambodia.
- Thailand’s argument focused on cultural, artistic and historical character.
- Frontier Dispute between Burkina Faso and Mali 1986
- These countries are situated in the North-West part of Africa.
- Uti-Possidetis in play here. (Territorial boundaries should remain intact)
- Principle of SD stands at variance with principle of Territorial integrity. Territorial Integrity is a larger concept under which Uti-Possidetis is fixated.
- Factual Matrix-Long fraught border dispute
- State of French West Africa had Burkina Faso and Mali included in it during colonial times.
- In 1919 a separate colony called Upper Volta was established (Presently Burkina Faso). Rest was called French Sudan. 1932 the colony of Upper Volta was abolished and its territories were incorporated in neighbouring territories of Niger and French Sudan. In 1947, Upper Volta was re-established and it later became independent under the new name Burkina Faso.
- In 1959, Sudanese Republic gained independence under name Federation of Mali.
- There was a disputed temporary water-course situated on the border of both two territories.
- Court accepted Burkina Faso’s claim which was based on Uti-Possidetis but only principally and not factually.
- Malian claims were based on the assertion that disputed lands were historically and geographically part of French of Sudan.
- Here the territory was divided in two halves based on the the principle ‘Equity Infra Legem’ because it could not take recourse to Article 38(2).
- Court also looked at Organisation of African Unity Charter in which principle of territorial was found to be more integral than principle of self-determination. (A.3 para 3)
- El Salvador v Honduras 1992
- Nicaragua was also intervened regarding Gulf of Fonseka.
- El Salvador & Honduras lie in Central America below Mexico.
- Court talked about relationship b/w Uti-Possidetis and Effective Possession.
- El Salvador claimed the disputed territory on the pretext that most of its resident were of El Salvador origin.
- The case was again decided using the principle of Equity. The dispute was divided in 6 land frontiers along with Gulf of Fonseka, 3 islands and Maritime dispute.
- The case takes forward the Burkina Faso case by analysing how principle of uti-possidetis is related to the principle of effective possession.
- All parties wanted the court to demarcate the boundary lines of the disputed territories.
- El Salvador & Honduras had gained independence from the Spanish Empire.
- After the collapse of the Spanish Empire, Federal Republic of Central America came into being in 1821 but disintegrated in 1839 producing a number if successor states including El Salvador & Honduras.
- Principle of Uti-Possidetis was encapsulated in this case.
- Island dispute first arose in 1854 and the land dispute arose 1861.
- Dispute led to major conflict between these nation especially in 1969. Three laters the major part of the land frontier was negotiated between El Salvador & Honduras.
- Football war also took place between El Salvador & Honduras.
- A mediation process commenced in 1978 which resulted in general treaty of friendship & peace which was signed & ratified in 1980. The treaty provided for certain sections of boundary. It also provided that it in 5 years the substance of treaty was not fulfilled, then within 6 months, parties shall agree to submit the dispute to ICJ. In this manner, the matter reached ICJ.
- ICJ divided the dispute between 3 parts-
- 6 land Frontiers – between El Salvador & Honduras
- 3 Islands- between El Salvador & Honduras
- Maritime Space (Jurisdiction over Gulf of Fonseka) between Nicaragua, El Salvador & Honduras.
- A Brazilian judge later observed that it was the most complex territorial dispute.
- Regarding 6 land frontiers, court relied in Burkina Faso case and held that Uti-Possidetis runs like a golden thread throughout this judgement. It also adopts “equity infra legem” to decide the dispute. 2/3 of the territory was given to Honduras.
- Court said that principle of Uti-Possidetis can be problematic as it is essentially retroactive in nature. So court relied on effective possession to determine the land frontiers.
- In case were Uti-Possidetis juris line cannot be established with precision.
- Court also took into account geomorphological features to determine this dispute.
- Acquiescence– to shown by acts of parties.
- Regarding 3 Islands, they were also delineated using effective possession. 2 islands were awarded to Honduras.
- Dispute between Libya & Chad 1994
- Dispute over Aozou Strip located between Libya and Chad.
- Chad is a landlocked nations south of Libya, east of Niger and west of Sudan.
- Aozou Strip has strategic, sentimental and economic value. The strip had uranium deposits. Libya also claimed that it has Ottoman lineage with the strip.
- At the time of the treaty of Versailles 1919 which concluded the first world war, Libya was colonised by Italy and Chad was colonised by France. In the treaty, Italy was promised territorial expansion. After Mussolini’s accession to power, a Franco-Italian agreement strengthened Italy’s power in and around Libya.
- Dynamics of the 2nd World War were not conducive to Italy. Italy nonetheless considered the Aozou Strip to be part of Italy.
- But during the world War II, Aozou Strip came under effective control of France (Chad).
- A 1955 treaty of friendship recognised the established frontiers until then.
- In 1973, Libya annexed Aozou Strip under the leadership of Gaddafi.
- Chad claimed on the basis of 1955 treaty. But Libya relied on 1935 treaty.
- Court took into account 1955 treaty and held in favour of Chad.
- Taking into account Article 31 and 32 of VCLT, court held in favour of Chad.
- Court also held that life of a treaty may be over under its provision but wrt recognition of frontiers remain in operation.
- Qatar v Bahrain 2001
- Both are located in Persian Gulf. Regional importance.
- Dispute centred around two islands- Hawar Islands (17 islands) and Janan island and an area called Zuwarah. Zuwarah was in the Qatari peninsula but Bahrain claimed on basis of history.
- Both countries were British Protectorates and were major trade routes subject to piracy.
- Tribes living in Zuwarah had asked for Bahraini protection.
- When both countries were British Protectorates, Bahrain was more closer to British but Qatar more closer to Ottoman Empire. A British Garrison was also placed in Bahrain in Hawar island in 1830s. Qatar contended that Hawar island are part of Qatar as geographically Hawar was more closer to Qatar.
- In 1839 British ruled that Hawar islands are part of Bahrain.
- When these two states gained effective independence, Qatar again claimed its suzerainty over the island but escalation was controlled by efforts of Gulf Cooperation Cooperation.
- Later the dispute went to ICJ after an understanding in GCC. Arab countries generally settle their dispute regionally than approaching International Forums.
- ICJ awarded to Bahrain on the basis of a 1839 Agreement wherein British had awarded the land to Bahrain.
- Held that Geographical proximity alone is not sufficient to claim a territory Such claims would not stand the muster of ICJ.
- Zuwarah was held to be part of Qatar.
- Minquiers & Ecrehos Island 1953
- There are various modes of creation of title to a territory
1982 UN CONVENTION ON LAW OF THE SEAS UNCLSU (By Prof. Umesh Kadam)
- Territorial Sea
- Continental Shelf
- High Seas
- Exclusive Economic Zones.
Admiralty Law deals primarily with shipping.
Global Commons- area open for all nations to use. Eg- High Sea, Outer Space, etc.
What has stimulated development in the law of the seas?
1. US Warships advancing towards Strait of Hormuz near Iran.
Major Shipping Routes in the world-
- Suez Canal
- Strait of Hormuz
- Strait of Malacca
- Danish Strait
- Turkish Strait
- Panama Canal
In classical law of the sea that land dominates the sea.
Concerns of Coastal states-
- Commercial concerns.
- Preservation of Natural Environment
- Enforcement of Laws in coastal areas.
- Economic Interests
At a time Spain and Portugal unsuccessfully tried to proclaim their sovereignty over all high seas which was resisted by other states on ground of res-commercium. These shaped the state practices and customary law on this matter.
International law Commission task-
- Codification of laws
- Progressive development of laws.
1958- First UN Conference on law of seas
The Conference was able to come up with 4 conventions-
1969- 2nd UN Conference on remaining
- No new convention
1974-82- 3rd UN Conference on law of the sea.
- Came up with a draft of convention which was enforced in 1994.
- Over 320 Articles
- It has now over 160 state parties.
- US did not become party to this convention as they were more interested in establishing dominance.
- Part 9 of the convention deals with the area- the deep sea-bed. It has been declared as common heritage of mankind. It includes minerals in deep sea.
- Similarly resources on celestial bodies have also been declared common heritage of mankind.
- Problem- Developing countries wanted to take advantage of resources in sea-bed.
Why 1970s stimulated re-instatement of International Laws?
- Decolonisation movements
- Western countries tried to tell newly independent countries about the IL. Developing countries objected by saying that these laws came into being when they were not in existence, hence they should be modified keeping in mind current realities.
Indonesia is an Archipelagic nation with over 17000 islands.
Right of Innocent Passage-Is a right available to non-costal states to pass through states. The right can be suspended in certain circumstances. But Naval powers did not want this suspension.
What about a narrow strait less than 12 km in width between two states?
- The common waters are delimited between two countries as agreed between them.
- If passage through this strait is suspended there is problem for naval powers.
- So they bargained this non-suspendible right of passage through international straits in the 1982 convention.
Freedom of over-flight– Subject to certain regulations under Aviation law, nations have right of flight.
Chicago Convention on Civil Aviation which established Authority on Civil Aviation.
Maritime Zones (Baseline from which maritime zones (territorial waters, economic zones, etc) have to be measured)
From where baselines are drawn?
- From the point where ocean water ends on coast.
- If there is river, a line can be drawn over its mouth to determine the base line.
- Bay– If distance between two coast is less than 24 nm, the two points can be joined.
- Formula to determine Bay- First draw a line to join the mouth of the bay. And then draw a semi-circle inwards. If the water enclosed is greater than the semi-circle, it is bay.
- Island can generate their own maritime zones. If there is an island located within the territorial water (12nm), then while drawing the baseline, one can join the island with the coast to determine the baseline. If distance between two island is less than 24 nm, they can be joined for determining baseline.
- Rocks that cannot sustain economic life- Such islands can only have territorial waters and not other maritime zones. Rockall island was situated 162.7nm from Scotland and UN unsuccessfully tried to create maritime zones around that.
- Low tide elevations– They are geographic features which are exposed during low tide but submerged in high tide. Such elevations cannot be used to determine baseline.
- Artificial Islands- They cannot be used to join the baseline. They do not have maritime zones. There are security issues also related to artificial zones. Law of the seas allow construction of 500 metres of security zone around an artificial zones.
- Norway like coastline- very disorganised and zig-zag indented coastline towards North Sea. Norway calls it Shwargard (Skjaergaardq) They joined the outermost point of the islands and claimed it to be their baseline in 1940s. As a result of this limits of territorial water were pushed outwards. At that time there was no EEZ which came in 1970s. Some areas of North Sea is rich in certain variety of fish. One cannot fish in territorial waters of other countries. When the matter reached in the court, it ruled in favour of Norway. It also observed that states can take into consideration economic interests while drawing baseline. Also Norway had done it for a long period of time without any objections from Britain and this amounted to acquiescence.
- Internal waters– All waters falling inside the baseline and coastal state has full rights over it. There is no right of innocent passage through internal waters. Right of innocent passage is only through territorial water subject to certain conditions.
- Situation– A national of country C is murdered by X (citizen of D) on a merchant ship registered in country B in the internal water of A. Technically all states can claim jurisdiction on the basis of nationality. In most cases it is the flag state that exercises jurisdiction.
- Bays bordering 2 or more States-
- Bay of Fonseka- bordering 3 different states- El Salvador, Honduras and Nicaragua. In such a case delimitation happens on the bases of agreed principles which are equitable. There was dispute amongst these countries regarding the delimitation. Court said all three nations are co-owners of water inside the bay all have right of innocent passage.
- Bay of Sidra/Sirte– Libya joined 300nm mouth of this bay to determine its baseline and maritime zones including internal waters. Many States challenged this.
What are the various maritime Zones?
- Territorial Sea/Waters- 12 nm from the baseline
- Contiguous Zone– 24 nm from baseline.
- Exclusive Economic Zone– 200 nm from baseline. Coastal State can engage into any economic activity in this zone.
- Continental Shelf– Extends to where land drastically drops into the sea/ocean and the sea-bed starts. This varies from region to region.
- High Seas- The area beyond Continental Shelf is high seas. Even non-coastal states have rights over high seas. High seas are open to all states for fishing.
- Until 1982 there was disagreement over the length of territorial waters
- Related to security of states.
- Canon Shot theory– the maximum distance reached by a canon fire can be claimed as territorial water.
- This theory was later discarded in favour of 3nm territorial waters. Scandinavian countries claimed 4nm territorial waters.
- 1960– 2nd UN convention on law of the seas. US and Canada proposed 6nm of territorial waters and beyond that 6nm of fishing zones. But this was not accepted by others.
- 1982– 3rd UN conference on law of the Sea. 12nm of territorial waters was agreed. State can claim lesser as well but 12nm is maximum.
- Legal Character
- Territorial waters belong to the coastal state. Airspace above territorial waters also belongs to the coastal state.
- Before 1982 convention there were various approaches-
- Territorial waters belong to coastal state but other states have certain rights like innocent passage.
- Territorial waters belong to all states but coastal states have special rights.
- Coastal state can grant certain other rights as well in its territorial waters to other states by way agreement.
- Cabotage– granting trading rights to other states. Its there in aviation sector as well.
- A flight coming from London stops at Mumbai and terminates in Delhi. Can it take passengers from Mumbai to Delhi?
- After taking permission from Civil aviation authority.
- Some bilateral arrangements allow such arrangements.
- Aviation sector is governed by Chicago convention.
- A flight coming from London stops at Mumbai and terminates in Delhi. Can it take passengers from Mumbai to Delhi?
- Most states have enacted national legislations to govern territorial waters.
- India-Territorial Waters, Continental Shelf and other Maritime Zones Act of 1976.
- National legislation is essential for a country to exercise jurisdiction in territorial waters.
- Right of Innocent Passage
- It was included in 1958 convention on territorial waters and further elaborated in 1982 conventions.
- Defined as-
- Available to both merchant and naval ships.
- Sometimes a vessel has to pass through territorial waters of other states. If there is an alternate route from where the vessel can pass, coastal state can raise objections.
- If territorial waters of two state meet each other, then boundary line is to be drawn according to norms. Passage through such waters is innocent passage.
- Can it be suspended by coastal states?
- The convention provides that it cannot be suspended unless it is prejudicial to the security or good order of the coastal state.
- If the foreign is using military equipment.
- Whether war-ships have right of innocent passage?
- The convention provided that all ships have this right.
- Western countries contended that Warships also comes within the ambit.
- Eastern countries opposed this nation.
- But after end of cold war, many countries accepted the Western view on ships.
- Submarines also included in warships.
- A rule has emerged that when submarines enter territorial waters, they have to come to the surface and show their flag.
- Whether Warships including submarines have to notify the coastal state about their passage?
- No notification required.
- Article 19 of the 1982 Convention–
- Any threat or use of force by the passing ship
- Collection of espionage
- Espionage is not criminal under IL but it depends upon laws of the particular country from where information is being secretly collected.
- Collection of information from satellite-
- Engaging in any propaganda.
- Regarding Aircraft carriers- landing and taking off is not allowed while the carrier is in territorial water.
- Loading and unloading of Cargo against the custom union laws of the coastal state.
- Wilful act of pollution is not allowed. Maritime accident which is non-intentional
- Fishing without permission.
- Maritime research without permission from the coastal state.
- Interference with communication system of the coastal state.
- Any other activity not having bearing with the passage.
- Artificial Island Construction Thailand
- A Billionaire was allegedly constructing a house in the territorial waters of Thailand. The person had planned constructing colonies in Ocean by his company ‘Ocean Constructions’
- He was constructing the house at 13nm of Thai coast claiming that it was not within the territorial waters of Thailand.
- Thai authorities arrested him on the pretext of violating Thai sovereignty which carries death sentence.
- Security Concerns
- Artificial Island Construction Thailand
- A coastal state may enact laws u/a 20 of the convention concerning innocent passage. Ships are presumed to know such laws and cannot claim ignorance.
- Laws regarding safety and regulation of traffic. Sea-lanes ascertained by co-ordinates. Mostly in archipelagic states.
- Navigational Aids like light-houses.
- Protection of cables and pipelines.
- Prevention of fisheries.
- Preservation of the environment of coastal states.
- Laws relating to smuggling, etc.
- Concerns of Nuclear powered ships or ships carrying radio-active materials
- This issues was raised in the 3rd convention.
- Can a coastal state charge fee for innocent passage?
- No as per the convention.
- Suez Canal links Mediterranean Sea to Red Sea. It has a special status.
- It was artificially constructed in 1860s. It was jointly operated by UK and France
- In 1956 Egypt Nationalised the canal as result of which Israel, UK and France attacked Egypt.
- Today it belongs to Egypt which charges fees (nearly 4000$) for single passage. Its waters are internal waters of Egypt.
- It’s 24nm from the baseline and 12nm from territorial waters. That is the maximum extent.
- It enables the coastal states to extend its jurisdiction for various purposes.
- 1958 Territorial Waters Convention– First reference to Contiguous Zone.
EXCLUSIVE ECONOMIC ZONES
- It happens to be the most important maritime zone.
- In the late 1960’s many EU boats went very close to African coast almost near territorial waters. At that time area beyond territorial waters was considered High Seas.
- Concerned countries thought of expanding territorial waters to 100-140nm.
- Western countries worried about passage of their warships through expanded territorial waters where right of innocent passage can be stopped. So they came up with the idea of Exclusive Fisheries Zone.
- In the 2nd UN convention idea of 6nm of territorial waters and after that 6nm of fisheries zone was floated but it could not be adopted.
- In the 3rd UN conference 1982, the issue was settled by Exclusive Economic Zones.
- The countries had started practicing and respecting 200nm EEZ since 1975.
- IMP– There is no hierarchy of sources in IL.
- Rights of States in EEZ-
- Part V of the Convention (Article 55-70)
- Coastal states have sovereign rights over EEZ over water, sub-soil and sea-bed
- Coastal states have right to establish artificial structure.
- Economic activity, conservation of living resources and research have been reserved for the Coastal States.
- In EEZ other states also have certain rights. They can enjoy freedom of the high seas in the waters of EEZ.
- Laying down of submarine cables, oil pipelines, overflight in the airspace.
- Airspace beyond territorial water is international airspace.
- Elaborate provisions exists in the convention regarding conservation of living resources. There was a concern about over-fishing and depletion of fishing stock.
- The convention requires Coastal States not to engage in over-fishing.
- Certain varieties of fishes are Anadromous and Catadromous-
- Anadromous– born in fresh waters but grow in the saline water of seas.
- Salmon, Hilsa.
- Catadromous– born in sea waters but grow in the fresh waters.
- Anadromous– born in fresh waters but grow in the saline water of seas.
- Duty of Coastal states to ensure no illegal activity happening in their EEZs.
- Flag of Convenience– Some times the flag states do not take any actions.
- Due Diligence-
- Can the state claim that violations have been committed by private individuals
- If the state failed to exercise due diligence, responsibility can be attached for violation committed by vessels registered in that state.
- State can into bilateral and multi-lateral arrangements to utilise natural resources in EEZ.
- It is related to EEZ
- Continental Shelf ends where continental margin begins.
- Continental Margin– the portion in Continental Shelf where land drastically falls under the Sea.
- 1958 Definition- Continental Shelf is the sea-bed up to a 200 metres in depth but if the state is capable of exploiting resources beyond this depth, it can do so. This was not a precise definition.
- Definiton in 1982 Convention-
- Continental Shelf shelf can be upto outer edge of the continental margin. It can be upto 200nm if Continental margin does not extend to that level.
- The length of Continental Shelf depends upon geographical features. The smallest Continental Shelf is 4nm and the largest is upto 400nm.
- Formula to determine Continental Shelf
- It can be maximum from the base line upto 350 nm and not beyond.
- Isobath- measuring the vertical distance between the surface if water and sea-bed. 100nm from where Isobath is 2500 metres.
- Whichever is longer of the two, shall be the continental shelf.
- Rights and duties of States-
- Coastal states have sovereign rights over the living resources of Continental Shelf (sedentary fishes like lobsters and crabs)
- Mining rights also belongs to coastal rights. But a fees has to be paid to International Sea Authority (Jamaica) for mining beyond Continental Shelf.
- The airspace above Continental Shelf is international airspace
- Concept evolved from 10th CE to 20th CE.
- Countries knew about the concept of High Seas, but now about other maritime zones.
- Earlier the limits of territorial sea was determined by canon shot.
- After the UN 3rd convention, it was determined to be 12 miles after the territorial waters.
- Are lying outside the territorial waters come under freedom of the high seas.
- Hugo Grotius propounded the notion of “mere librum” said that freedom of the high sea is open to all and every state has equivalent rights over it. It is part of res-communes and part of terrae nullius.
- Another scholar propounded the notion of “mere closum” ie that seas are closed.
- Part 7 of the UN Convention 1982 deals with the ‘High Seas’.
- Article 86– lays down the are of high seas. These are those parts not included in internal part EEZ, or archipelagic waters of archipelagic states.
- Prior to 1982 convention, EEZ was known as Exclusive Fishing Zone. Other states can also lay down submarine cables in EEZ with the permission of the coastal state.
- Article 87– talks about the freedom of the high seas.
- High seas are open to all states.
- Freedom to be exercised in accordance with the provisions of the convention-
- Freedoms to include-
- Freedom of Navigation
- Freedom of Overflight
- Freedom of laying down Submarine Cables and Pipelines
- Freedom to construct artificial island and installations permitted under IL
- Freedom of Fishing
- Freedom to carry out Scientific Research
- Freedoms to include-
- France v Turkey 1927 SS Lotus case
- French ship collided with Turkish ship in which 7-8 people died.
- The French ship was taken to Instanbul
- Issue-Whether Turkey had jurisdiction to try the master of French ship for manslaughter.
- PCIJ held in the favour of Turkey.
- It held that jurisdiction is territorial and a state cannot exercise its jurisdiction outside its jurisdiction except in certain cases.
- Effect of collision was felt by Turkish Nationals and hence it had jurisdiction.
- But this position is no longer in existence.
- Article 97 (r/w 91, 94, 98, etc)– Jurisdiction in case of collision and any navigation incident
- Article 91– Nationality of Ships
- It lies where the ship has been registered.
- Concept of Genuine link and controversy
- Article 94– Duties of the flag state
- Article 97–
- It talks about penal jurisdiction in case of naval collision in high seas.
- 2 states have jurisdiction-
- Flag State of the accused of ship
- State where the accused national belong.
- The ship cannot be arrested and detained for investigation by anyone except by the flag state.
- So SS Lotus case no longer hold good.
- S.99- Slavery
- Lays down duty on flag state
- Other states also have duty under S.110
- S.101- Privacy
- Act of private persons committed against private persons.
- Immunities enjoyed by war-ships in high seas-
- Article 95
GUEST LECTURE (Prof. Umesh)
International Criminal Law
Nuremberg and Tokyo Trials
Response to Nazi and Japanese crimes
London Charter established this tribunal
Due process, visibility influencing international opinions.
Radha Vinod Pal-Indian Judge in Tokyo Trial.
Gave dissenting opinion
Broke monopoly of National Jurisdiction
Criticism– What about crimes committed by allied powers?
Earlier International crimes were prosecuted in domestic tribunals
Rome Statute of ICC
Legacy of IMTs
The realization of nexus between international justice and political will.
Broke monopoly of National Jurisdiction
The emergence of new offenses
Crime against humanity
Genocide-Definition in Rome statute and Genocide convention 1948
Genocide was part of crime against humanity initially but later it was carved out as a separate crime.
Accountability of Leaders
The principle of Superior Responsibility
Development of new norms and standards
International Law Commission
Formulation of Nuremberg principles
ILC was created by the General Assembly as a body of Intl. Jurists
Twin Mandate was a codification and progressive development of IL
Codification means the transformation of customary norm into an intl. treaty.
Laws of the sea-conventions were adopted to deal with laws of the sea.
Progressive development means incorporation of new principles
The genocide convention envisioned a future ICC
Categories of International Crimes-
Serious violations of customary or treaty rules of international humanitarian law of armed conflict.
Use of biological weapons, cluster bombs
Core instrument of Intl Humanitarian Law are 4 Geneva conventions
War crimes entail individual criminal responsibility under IHL (International Humanitarian Law)
Can be committed only situations of International Armed Conflict (IAC) or Non-International Armed Conflict (NIAC)
ISIS and Al-Qaida?
Indian surgical strikes in Pak was justified as a pre-emptive strike in self-defense.
Not necessary that the armed group is located within the state.
Hizbollah and Israel.
What is the threshold of hostility to qualify as an International armed conflict?
Can downing of Indian plane by Pakistan qualify as an armed conflict?
Crime against Humanity
The definition in the Rome Statute
Means any of the following acts
When committed as part of a widespread and systematic attack directed against any civilian population
Murder, extermination, torture, slavery, rape, forced disappearance, etc
Every Human rights violation is not a crime against humanity.
Extremely repulsive offenses.
Linked to the policy of the government or any de-facto authority.
LTTE controlled Lankan territories.
Not isolated or sporadic events.
Can be committed in times of war as well as in peace.
Term decided by Polish-Jewish Lawyer
Intentional destruction through one of five wen-specified categories of the conduct of one of some groups as such (National, Ethnical, Racial or Religious) or members of one of these groups as such.
1.5 million were eliminated.
6 million Jews were eliminated.
2 million peoples eliminated. About 25% population were eliminated.
They were killed because of political ideologies.
Not technically genocide but a crime against humanity.
Is genocide an offense in IPC?
India is a party to Geneva convention.
Not considered as a core crime in the Rome Statute
Does not fall under the jurisdiction of any international tribunal
Torture may amount to a war crime or crime against humanity and as such punishable.
Perpetrators are stated official or private individuals with complicity/connivance of state or other authority.
States claim exclusive domestic jurisdiction.
Article 5 Rome Statute-
Before 1998, there was no consensus on the issue.
The contention was regarding the role of the UN Security Council in judicial proceedings. UNSC is a highly politicized organ of the UN.
2010 amendment of statute defined aggression on the line of UN General Assembly of 1974
ICC to have Jurisdiction over crimes of aggression.
Extreme forms of International Terrorism
International crimes vis-a-vis Transnational crimes
Piracy-one of the oldest International crimes. Universal Jurisdiction.
Illicit Traffic in Narcotic Drugs-
Smuggling of Nuclear or other deadly material
Unlawful Arms Trade
Slave Trade and Human Trafficking
Basic Elements of Intl. Crimes
Violations of customary rules or treaties passed into customary law
Protects values binding on all states and individuals
Universal interest in repression
Sovereign immunity is not recognized
The Drafting and adoption of the statute of the ICC (1994-1998)
Reactivation of the proposal in ILC
Rome diplomatic conference 1998
Positions of different groups
Contributions of the International coalition for ICC and the role of the civil society.
Other criminal Tribunals
Mixed tribunals for Sierra Leone and Cambodia
East Timor Special Panels for serious crimes
ICTY and ICTR
Special Tribunal Lebanon-was established by UNSC.
The rationale for the establishment of a special mechanism.
Proposal to establish the African Criminal Court
Indicting heads of states and issue of sovereign immunity
An African Union initiative.
INTERNATIONAL MIGRATION LAW IML
A large number of people moving from Africa and the Middle East to Europe.
Migration-Movement of a person across an international border or within a state.
Focus on Human Rights
People who migrate within the framework of the law.
Indian labor working in the Middle East
Migration outside the framework of the law.
An international organization of Migration discourages the use of word ‘illegal’
Defined under Refuge convention
They have a well-founded fear of persecution in his own country.
UNHCR-always works in coordination with national laws.
International Migration Law
Rules and Principles of Public International Law dealing with the process of Migration
Not an undefended branch of law
Comes from a different branch of Public International Law
Different legal norms
Sources of IML
Human rights law
International Humanitarian Law
Law of the Sea
Transnational criminal law
International labor law
International Labour Law and IML
The migration for employment convention 1949
Migrant Workers Convention 1975
The domestic worker’s convention 2011
Transnational criminal law and IML
Transnational conventions dealing with-
Transnational organized crime
Smuggling of Migrants
Difference between people smuggling and human trafficking
In people smuggling, the person himself approach the smuggler and ask him to take him to destination
In Human trafficking, people are forcefully trafficked for exploitation. The motive is economic gain by coercion.
Victims of both are to be protected under International Conventions. These people are not to be criminalized.
Refugees, Internally displaced persons, and IML
Convention relating to the status of refugees 1951
India is not a party.
Protocol relating to the status of refugees 1967
Guiding Principles on international displacement 1998
African Union Convention on protection and assistance of IDPs 2009
Law of the Sea and IML
Maritime Traffic, trafficking of Migrant by sea.
Safety of life at sea, maritime search, and rescue, treatment of persons rescued at sea.
UN convention on law of the sea 1982
Guidelines of Stowaways
Nationality Law and IML
Convention relating to the status of stateless persons
15 million people are stateless
A Ethnic group migrated from Nepal to Bhutan but Bhutan is contemplating to strip them of Bhutanese Nationality
Status Specific Entitlement to Right
Not all human rights are applicable to non-citizens in India
ICCPR and Migrants
The covenant applies to all individuals within a state’s territory and subject to its jurisdiction
Political rights apply only to nationals
Right to return to his own country applies only to nationals and permanent residents. (Article 12.4)
Can an irregular migrant has a right to go back to his own country?
No. He will be prosecuted in that country where it has migrated.
Right to freedom of movement within the country can be availed only by a regular migrant Art.12.1
Protection against unlawful deportation can be availed only by regular migrant
ICESCR and Migrants
These rights are guaranteed to all individuals without discrimination
Developing countries with due regard to HR and their national economy may determine to what extent they would guarantee the economic rights to non-nationals (Art. 2.3)
Disclaimer– Pending review