International Law

Chapter One: General Introduction

Definitions of International Law According to Bentham’s classic definition: international law is a collection of rules governing relations between states. It is a mark of how far international law has evolved that this original definition omits individuals and international organizations—two of the most dynamic and vital elements of modern international law According to Hyde: International Law may be defined as that body which is composed for its greater parts of the principles and rules of conduct, which states feel themselves bound to observe and therefore, do commonly observe in their relations with each other. (Hyde, International Law, Vol I) (this is a modern definition of international law) According to Oppenheim: International law is the body of rules which are legally binding on states in their intercourse which each other. These rules are primarily those which govern the relation of states, but sates are not only subjects of international law. International organization and to some extent, also individuals may be subjects of rights conferred and duties imposed by international law. Torsten Gihl- the term international law means the body of rules of law which apply within the international community or society of states. The two traditional branches of the field are: jus gentium — law of nations and jus inter gentes — agreements between nations

Nature, Scope and Importance of International Law1 International law includes both the customary rules and usages to which states have given express or tacit assent and the provisions of ratified treaties and conventions. International law is directly and strongly influenced, although not made, by the writings of jurists and publicists, by instructions to diplomatic agents, by important conventions even when they are not ratified, and by arbitral awards. The decisions of the International Court of Justice and of certain national courts, such as prize courts, are considered by some theorists to be a part of international law. In many modern states, international law is by custom or statute regarded as part of national (or, as it is usually called, municipal) law. In addition, municipal courts will, if possible, interpret municipal law so as to give effect to international law. Because there is no sovereign supernational body to enforce international law, some older theorists, including Thomas Hobbes, Samuel Pufendorf, and John Austin have denied that it is true law. Nevertheless, international law is recognized as law in practice, and the sanctions for failing to comply, although often less direct, are similar to those of municipal law; they include the force of public opinion, self-help, intervention by third-party states, the sanctions of international organizations such as the United Nations, and, in the last resort, war.

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(Stark’s International Law by I.A. Shrearer, 11th Edition, 1-5)

National states are fundamentally the entities with which international law is concerned, although in certain cases municipal law may impose international duties upon private persons, e.g, the obligation to desist from piracy. New rights and duties have been imposed on individuals within the framework of international law by the decisions in the war crimes trials as well as the treaty establishing the International Criminal Court (see war crimes), by the genocide convention, and by the Declaration of Human Rights (see Economic and Social Council). International law comprises a practical and a normative element. It embodies the realization of states that rules and procedures are needed to regulate day-to-day interactions to produce order and stability in the international system. International law fulfills this practical need by providing rules that stabilize and harmonize systemic interactions. International law also fulfills the normative need created by the anarchical structure of international relations, forming an ‘international society’, where a group of states conceive themselves to be bound by a common set of rules, and share in the working of common institutions. Sovereign states produce a particular political structure for interaction which contains independent territorial units that are interdependent because they interact and affect each other's fate. Because no supreme power controls state behavior in an international system, the potential for cooperation and conflict exists. As interaction is unavoidable, states need mechanisms for regularizing their contacts. A chief mechanism devised for this purpose is international law. The scope of international law can be categorised into six broad items, namely: one, the law of peace, which seeks the peaceful settlement of international disputes. Two, the law of war, since conflict is an inevitable outcome of human and states relations, conducts of hostilities, must conform with laid-down regulations in terms of types of military wares and ammunition to be used, and stages of their utilisation, targets and non targets of attack, areas of combat, treatment of civilians, journalists and prisoners of war and refuges; and the duties of humanitarian agencies such as the Red-Cross otherwise called ‘doctor without borders'. Three, the law of neutrality, international law forbids aggression on neutral states in war. It also spells out reciprocal responsibilities for neutral states. Law forbids them to render any form of assistance whatever military or civil to any of the parties engaged in hostility. Four, mercantile laws, which relate to regulations on international trade, foreign investment and multi-lateral trade agreements by states. Five, is the law of the sea. The sea is very vital to the world economy as it provides varied marine food and mineral resources. It serves as a means of international transportation, and it serves as strategic resource for national defence. For these reasons, nations have fought wars over marine resources. Consequently, activities of states in the sea need to be regulated in order to present inter-state disputes. Six, convention on the use of outer spaces. The law regulates the exploration and launching of objects into outer space.

Subjects of International Law A subject of international law (also called an international legal person) is a body or entity recognised or accepted as being capable of exercising international rights and duties. The main features of a subject of international law are: the ability to access international tribunals to claim or act on rights conferred by international law; the ability to implement some or all of the obligations imposed by international law; and to have the power to make agreements, such as treaties, binding in international law;to enjoy some or all of the immunities from the jurisdiction of the domestic courts of other States.

State and international Organization: Although this is a somewhat circular definition, there are at least two definite examples of subjects of international law, namely, States and international organisations. While States are the main subjects of international law, and have all of these capacities, there are other subjects of international law. Their legal personality, their obligations and rights need not be the same as a State. For instance, the International Court of Justice has recognised some international organisations as proper subjects of international law. In the Reparations Case 2 the International Court of Justice confirmed that the United Nations could recover reparations in its own right for the death of one of its staff while engaged on UN business. International personality was essential for the UN to perform its duties, and the UN has the capacity to bring claims, to conclude international agreements, and to enjoy privileges and immunities from national jurisdictions. It is accepted that international organisations are subjects of international law where they:1. are a permanent association of States, with lawful Objects, 2. have distinct legal powers and purposes from the member States; and3. can exercise powers internationally, not only within a domestic system. Examples of this type of international organisation are the European Union, the Organisation of American States, the African Union, Organisation of the Islamic Conference and specialised UN agencies.3The International Committee of the Red Cross, based in Switzerland, has a unique status in international law as an intergovernmental organisation as guardian of the Geneva Conventions of 1949 for the protection of victims of armed conflict. It is neither an international organisation nor a nongovernmental organisation, but has a special legal status under treaty law by virtue of its important functions in upholding legal protections in situations of armed conflict. Individuals: Traditionally, individuals were not regarded as having the capacity to enjoy rights and duties under international law in their own right, but only as those rights and duties derived from the State to which they ‘belonged’. However, there is no principle in international law that prohibits individuals being recognised as subjects of international law. It will depend on the circumstances. The development of human rights law has advanced the recognition of individuals in international law because at its heart is the idea that individuals have rights and can assert them against States under international law. Corporations: Large multinational companies may operate all around the world, and their profits may outstrip the resources of some States. Corporations interact with States – they become legal entities under municipal law; they negotiate with States sometimes from a position of great power. Some companies are granted very favourable conditions (for example, in relation to minimum work standards, tax treatment, or immunity from legal suit) by States eager to attract inbound foreign investment. Sometimes corporations are closely connected to their home State or controlled by their home State’s government. Non-governmental Organisations (NGOs): Organisations such as Amnesty International and Greenpeace are known as ‘NGOs’ (non-governmental organisations). They do not have international legal personality, but are involved in international political activity, and on some occasions have taken part in international activities as members of a State delegation. National liberation movements: The Palestine Liberation Organisation and Polisario (representing the people of Western Sahara, occupied by Morocco) are examples of organisations having a limited international personality through recognition by some States, or the United Nations, as representatives of their peoples.3

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Reparations for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Reports 174. 3

Legal Information Access Centre (LIAC), ‘Hot Topics’, SN.69.

Historical Development of International Law (and the emergence of various schools of thoughts)4 Early Period In Western history, the supreme exemplar of the multinational empire was Rome. But the Roman Empire was, in its formative period, a somewhat tentative without an over-arching ethical or religious basis comparable to the Islamic religion in the later Arab empire. That began to change, however, when certain philosophical concepts were imported from Greece (from about the second century BC). Most important of these was the idea of a set of universal principles of justice: the belief that, amidst the welter of varying laws of different States, certain substantive rules of conduct were present in all human societies. This idea surfaced in the writings of Aristotle. But it was taken much further by the philosophers of the Stoic school, who envisaged the entire world as a single ‘world cityState’ (or kosmopolis) governed by the law of nature. Cicero, writing under Stoic influence, characterized this law of natureas being ‘spread through the whole human community, unchanging and eternal’ is concept of a universal and eternal natural law was later adopted by two other groups, the Roman lawyers and the Christian Church, and then bequeathed by them to medieval European lawyers in particular made a distinction that would have a very long life ahead of it: between a jus naturale (or natural law properly speaking) and a jus gentium (or law of peoples). They two were distinct, but at the same time so closely interconnected that the differences between them were very easily ignored. Natural law was the broader concept. It was something like what we would now call a body of scientific laws, applicable not just to human beings but to the whole animal kingdom as well.

Medieval Ages: Natural Law Era Universalist Approach: The European Middle Ages became the great age of naturallaw thought. During this period, natural-law conceptions developed under the umbrella of the Catholic Church. But it must be remembered that the idea was not specifically Christian in its inception, but rather was a legacy of the classical Stoic and Roman legal traditions. This tradition was represented outstandingly by Thomas Aquinas who was rationalist in outlook, holding the content of the natural law to be susceptible of discovery and application by means of human reason rather than of revelation. There continued to be, as in the ancient period, a distinction between the jus natural and the jus gentium, though still without any very sharp line between the two. The jus gentium was much the lesser of the two, being seen largely as an application of the broader natural law to specifically human affairs. States and private persons, were permitted lawfully to wage war for such purposes as t he punishment of wickedness or, generally, for the enforcement of the law—but not for vainglory or conquest or oppression. Pluralist Approach of the Italians: Nowhere was the tension between the universalistic and the pluralistic tendencies of the period more evident, in practice, than in the debates over the legal status of the various ‘independent’ city-states of northern Italy. These obtained substantial de facto independence from the Holy Roman Empire in the late twelfth century, when the cities of the Lombard League defeated the forces of Emperor Frederick I. There was, however, considerable debate over what this ‘independence’ really meant. To this matter, two of the most prominent medieval lawyers—Bartolus of Sassoferato and his student Baldus of Ubaldis, who both wrote in the fourteenth century—turned their attention

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( Ehrlich, L , The Development of International Law as a Science (1962), 173–265).

Development of State Practices: Beginning in about the eleventh century, European (chiefly Italian) States began to conclude bilateral treaties that spelled out various reciprocal guarantees of fair treatment. These agreements, sometimes concluded with Muslim States, granted a range of privileges to the foreign merchants based in the contracting States, such as the right to use their own law and courts when dealing with one another. e same process was at work in the sphere of maritime trading. The sea-faring community made use of the laws of Oléron (which were actually a series of court decisions from the small island of that name in the Bay of Biscay), and also of a code of rules called the Consolato del Mare, compiled in about the thirteenth century for the maritime community of Barcelona. These codes governed the broad range of maritime activities, including the earliest rules on the rights of neutral traders in wartime. Certain aspects of the conduct of war witnessed a high level of refinement in the Middle Ages—most notably the law on the ransoming of prisoners of war a welcome step forward from the alternatives of enslavement and summary killing). ‘the law of arms’ (as it was known) was expounded in the fourteenth century, first by John of Legnano and later by a monk named Honoré de Bonet (or Bouvet), whose book entitled the Tree of Battles, of the 1380s, became very influential. Accounts of medieval warfare, however, incline observers to harbour grave doubts as to whether even these practical rules exerted much real influence.

Classical Age Grotius and Hobbes (weakening of the natural law) The principal harbinger of this new outlook was the Dutch writer Hugo Grotius, whose major work On the Law of War and Peace was published in Paris in 1625—a work so dense and rich that one could easily spend a lifetime studying it (as a number of scholars have). As a natural-law writer, he was a conservative, writing squarely in the rationalist tradition inherited from the Middle Ages. In international law specifically, he had important forerunners, most notably the Italian writer, Alberico Gentili, who produced the first truly systematic study of the law of war at the end of the sixteenth century. Where Grotius did break important new ground—and where he fully earned the renown that still attaches to his name—was in his transformation of the old jus gentium into something importantly different, called the law of nations. The distinctive feature of this law of nations was that it was regarded as something distinct from the law of nature, rather than as a sub-category or means of application of natural law. Furthermore, and most significantly, this law of nations was not regarded (like the old jus gentium) as a body of law governing human social affairs in general. Instead, it was a set rules applying specifically to one particular and distinctive category of human beings: rulers of States. Now, for the first time in history, there was a clear conception of a systematic body of law applicable specifically to the relationship between nations. Eventually, although not until the late eighteenth century, the label ‘international law’ would be applied to this corpus of rules—with Jeremy Bentham as the coiner of the term. It should be appreciated that Grotius’s law of nations, or ‘voluntary law’ as it was sometimes known, was not designed to supplant or undermine traditional natural law. The function of this law of nations was basically an interstitial one—gaps where the natural-law principles were too general, or devising workable rules as pragmatic substitutes where the application of the strict natural law was, for some reason unfeasible. Hobbes, in his work Leviathan proposed that the only possible way in which States could construct a stable international system was through the painstaking process of entering into agreements whenever this proved feasible. The natural-law duty to perform promises was the fundamental basis of this system, with the detailed substantive rules being provided by the various agreements that were actually concluded. These agreements could take either

of two forms: written or unwritten. The written form, of course, comprised treaties, of the sort of that States had been concluding for many centuries. The unwritten form was customary law, which in this period was seen predominantly as simply a tacit or unwritten treaty.

Treaty of Westphalia5 At least some of the flavour of t he medieval natural law survived, however, chiefly in the form of the idea of the existence of something that has come to be called the ‘community of States’. the clearest symbol of this—if that is the right word for it was the peace settlement arrived at in Westphalia in 1648, at the conclusion of the Thirty Years War in Germany. The Peace of Westphalia did, however, provide a sort of template for later times in the way in which it marked out a division of labour (so to speak) between national and international spheres, placing religion carefully in the realm of domestic law. One of these was in the concept of a balance of power. Another proposition which is hardly an altogether new idea, but in this period it attained a formal articulation and recognition that it had never had before (most notably in the Peace of Utrecht in 1713, at the conclusion of the War of the Spanish Succession). In conjunction with this concept, the period was one of limited though also of frequent warfare

19th Century(The Crossroads of Positivism, Historicism and Naturalism) The public law system of the Concert of Europe With the definitive defeat of revolutionary and imperial France in 1815, the victorious European powers (Britain, Prussia, Russia and Austria) crafted a new kind of peace settlement, based not merely on the balance of material power between the major States but also on a set of general principles of a more substantive character. These general principles were, to be sure, of a decidedly conservative character. The goal was to craft a continent wide set of political arrangements that would (it was hoped) keep the scourge of revolution from breaking out again. The peace settlement was to be policed by the major powers—who were, of course, self-appointed to the task—by way of military intervention where necessary. The powers even had a grand name for their enterprise: the ‘public law and system of Europe’. The legal order was based on faithful adherence to treaty commitments, together with respect for established laws and legitimate governments and property rights within the States of Europe. But it also included a duty on the part of rulers to ‘earn’ their legitimacy by providing responsible and efficient government to their peoples and also by cooperating with movements for orderly and peaceful change. Sometimes the powers intervened diplomatically in post-war peace settlements, if the terms imposed on the losing side looked to be too destabilizing for the continent as a whole. This occurred in 1878, when the major powers stepped in to prevent Russia from exacting too harsh a peace against Turkey after a victorious war. e Concert of Europe ‘system’ (if it could really be called that) was overtly hegemonic, in modern parlance. ere was little sign of any principle of equality of States. Still, the Concert of Europe did at least provide an ideal—if not always the reality—of collective, orchestrated State action for the preservation of international peace. To that extent, it foreshadowed the post-1945 United Nations. International lawyers, however, never gave it much attention. Instead, their ambitions were directed to another end: to unshackling international law from its natural-law heritage and making it something like a science in the modern sense of that term.

The positivist Revolution 5

Beginning of the era of modern international law

On the conceptual front, the major feature of the nineteenth century was the dominant role of positivism. By ‘positivism’ is meant such a wealth of things that it may be best to avoid using the term altogether. The expression ‘positive law’ had been in use since the Middle Ages (since at least the fourteenth century) to refer to the man-made law of particular States, in contrast to divine law (ie, the commands of God) or natural law. What was new in the nineteenth century, however, was something called a ‘positive philosophy,’ the chief propounder of which was the French social philosopher Auguste Comte. As noted above, there was nothing the least bit new in the nineteenth century about the idea of positive law. What was distinctive about positivism as a school of jurisprudential thought was the doctrinaire insistence that positive law is the only true law or that the wholesale and principled rejection of natural law as a valid or binding guide to conduct. On this point, nineteenth-century positivism went even further than Hobbes, who was its major progenitor. the doctrinaire positivists (as they could fairly be termed), that is to say, held fast to the voluntary law, while at the same time breaking the link between it and the natural law that link which had been so central a feature of the Grotian tradition. The partnership between the law of nations and the law of nature, in short, was now regarded as irredeemably dissolved. One of the most central aspects of positivism was its close attention to questions of the sources of international law—and, in particular, to the proposition that international law was, fundamentally, an outgrowth or feature of the will of the States of the world. Rules of law were created by the States themselves, by consent, whet her express (in written treaties) or tacit (in the form of custom). International law was therefore now seen as the sum total, or aggregation, of agreements which the States of the world happen to have arrived at, at any given time. In a phrase that became proverbial amongst positivists, international law must now be seen as a law between States and not as a law above States. International law, in other words, was now regarded as a corpus of rules arising from, as it were, the bottom up, as the conscious creation of the States themselves, rather than as a pre-existing, eternal, all-enveloping framework, in the manner of the old natural law. As a consequence, the notion of a systematic, all encompassing body of law—so striking a feature of natural law—was now discarded. International law was now seen as, so to speak, a world of fragments, an accumulation of specifically, agreed rules, rather than as a single coherent picture. In any area where agreement between States happened to be lacking, international law was, perforce, silent. States were now perceived as possessing what came to be called ‘international personality’—and, crucially, as also possessing a set of fundamental rights that must be protected at all times. Foremost of these fundamental rights was the right of survival or self-preservation. This meant that, in emergency situations, States are entitled to take action that would otherwise be contrary to law. The most dramatic illustration of this point in the nineteenth century occurred in 1837, when the British government, faced with an insurgency in Canada, sent troops into the United States, in pursuit of insurgents who were using that country’s territory as a safe haven. They succeeded in capturing the miscreants, killing several persons in the process and destroying a boat named the Caroline. The United States vigorously objected to this armed incursion into its territory. Britain justified its action as self-defence. The stress on the basic rights of States also gave to positivism a strongly pluralistic cast. Each nation-State possessed its own distinctive set of national interests, which it was striving to achieve in an inherently competitive, even hostile, environment. Each State was sovereign within its territory. And each State’s domestic law could reject that country’s own particular history, values, aspirations, traditions, and so forth.

Professionalisation of International Law

The scientific and technocratic and a-political ethos of positivism brought a new sense of precision, a business-like character to the study and practice of international law. One consequence of this was an increasing sense of professionalism and, to a certain extent, of corporate solidarity. An important sign of this was the founding, in 1873, of two major professional bodies in the International Law Association and the Institute de Droit International. is was also t he period in which international law became a subject of university studies in its own right, separate from general jurisprudence—and, in particular, from the study of natural law.

The Historical School In international law, the impact of the historical school is evident in three principal areas: first was with regard to customary law, where its distinctive contribution was the insistence that this law was not a matter merely of consistent practice, however widespread or venerable it might be. A rule of customary law required, in addition, a mental element—a kind of group consciousness, or collective decision on the part of the actors to enact that practice into a rule of law (albeit an unwritten one). In fact, this collective mental element was seen as the most important component of custom, with material practice elegated to a clear second place. Customary law was therefore seen, on this view, as a kind of informal legislation rather than as an unwritten treat y (as the positivist s tended to hold). This thesis marked the origin of the modern concept of opinio juris as a key component of customary international law. The second major contribution of the historical school to international law was its theor y t hat t he fundamental unit of social and historical existence was not—or not quite—the State, as it was for the positivists, but rather the nation-state. In this vision, the State, when properly constituted, comprised the organization of a particular culture into a political unit. It was but a short step from this thesis to the proposition that a ‘people’ (ie, a cultural collectivity or nation or, in the German term, Volk) had a moral right to organize itself politically as a State. And it was no large step from there to the assertion that such a collectivity possesses a legal right so to organize itself. Although the nationality thesis did not attract significant support amongst international lawyers generally at the time, it did presume the later law of self-determination of peoples. The third area where the influence of t he historical school was felt was regarding imperialism—a subject that has attracted strangely little attention from international lawyers. It need only be mentioned here that the historical school inherited from the eighteenth century a fascination with ‘stages’ of history. Under the impact of nineteenth-century anthropological thought, there came to be wide agreement on a three-fold categorization of States: as civilized, barbarian, and savage

The survival of natural law The dominance of positivism, with its stern and forthright opposition to the very concept of natural law, brought t hat venerable body of thought to its lowest ebb so far in the history of international law, but it gained its momentum back no later than a century after its downgrading. In more traditional areas of international law, the legacy of natural law is most readily discerned in the area of armed conflict—specifically concerning what came to be called measures short of war regarding the conduct of hostilities.

The 19th century international legislations The culmination of nineteenth-century international legislation and the arrival of parliamentary-style diplomacy and treaty-drafting came with the two Hague Peace Conferences of 1899 and 1907. The first Conference drafted two major conventions: one on the laws of war and one on the establishment of a Permanent Court of Arbitration (which was actually a roster of experts prepared to act as judges on an ad hoc basis. Second Hague Peace Conference, in 1907, was a much larger gathering than the earlier one

(and hence less Europe-dominated). It produced 13 conventions on various topics, mostly on aspects of war and neutrality. In due course, the Great War of 1914–18 delivered yet another matter to ponder over in international warfare: advancement of weapons, but of course, legislations governing use of arms came much later.

The twentieth and twenty-first centuries (1919-) The Inter-war period: The international order during League of nations The carnage of the Great War of 1914–18 concentrated many minds, in addition to squandering many lives. Many persons now held that nothing short of a permanently existing organization dedicated to the maintenance of peace would surface to prevent future ghastly wars. Their most prominent spokesman was American President Woodrow Wilson. The fruit of their labours was the establishment of the League of Nations, whose Covenant was set out in the Versailles Treaty of 1919. The League was a complex combination of conservatism and boldness. On the side of conservatism was the decision to make no fundamental change in the sovereign prerogatives of nation-States as these had developed up to that time. No attempt was made to establish the League as a world government, with sovereign powers over its member States. Nor did the Covenant of the League prohibit war. Instead, the resort to war was hedged about with procedural requirements—specifically that either a judicial or political dispute-settlement process must be exhausted before there could be war between League member States. Only on one occasion was the sanctions provision of the Covenant invoked: against Italy for its invasion of Ethiopia in 1935–36. The sanctions failed to save Ethiopia, since the conquest was completed before they could have any serious effect. This failure led to a period of profound soul-searching amongst international lawyers as to what the role of law in the world should be? It similarly led States into desperate searches for alternative sources of security to the League Covenant. A number of countries, such as Switzerland, Belgium, and the Scandinavian States, reverted to traditional neutrality policies. The three major achievements of the inter-war period are: a) first multilateral initiatives on human rights, embodiment of principle of trusteeship of the dependent territories by League members and relief to refugees. Positivism was, however, far from dead and was reiterated in the Lotus judgement (France v. Turkey), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7) which gave the sense that law emanates from the voluntary and expressed consent of the sovereign states which are embodied in an agreement. Hans Kelsen, the leader of the Vienna School reconceived international law—and indeed the whole of law—as a grand, rationalistic, normative system .

Post-1945 development The founding of the United Nations in 1945, to replace the defunct League of Nations, was a critical step in the creation of a new world order. With the UN came a new World Court (the International Court of Justice, or ICJ), though still without compulsory jurisdiction over States. the heart of the organization was the Security Council, where (it was hoped) the victorious powers from the Second World War would continue their wartime alliance in perpetuity as a collective bulwark against future aggressors. The UN Charter went further than the League Covenant in restricting violence. It did this by prohibiting not only war as such, but also ‘the use of force’ in general—thereby encompassing measures short of war, such as armed reprisals. The UN Charter was more timid than the League, however, in that sanctions (whether economic or military) were not mandatory and automatic, as in the League Covenant.

Parallel to this security programme was another one for the promotion of global economic prosperity. The economic-integration effort of the nineteenth century, shattered by the Great War and by the Great Depression of the 1930s, was to be restructured and given institutional embodiments. The International Monetary Fund was founded to ensure currency stability, and the World Bank to protect and promote foreign investment and (in due course) economic development. Trade liberalization would be overseen by a body to be called the International Trade Organization (ITO). There scarcely seemed any walk of life that was not being energetically ‘internationalized’ after 1945 from monetary policy to civil aviation, from human rights to environmental protection, from atomic energy to economic development, from deep sea-bed mining to the exploration of outer space, from democracy and governance to transnational crime- fighting. The cumulative effect was to weld the States of the world in general and international lawyers in particular into a tighter global community than ever before. The codification of international law, for example, made some major strides, in large part from the activity of a UN body of technical experts called the International Law Commission. e principal areas of law that received a high degree of codification included the law of the sea (with four related conventions on the subject in 1958, replaced in 1982 by a single, broader convention), diplomatic and consular relations (in the early 1960s), human rights (with two international covenants in 1966), and the law of treaties (in 1969) Also to ease the looming threat of a nuclear-war between the soviet and the US fronts, self defense became the only justifiable legal ground of war.

Emergence of New Challenges In the 1990s, the ITO project was revived, this time with success, in the form of the creation of the World Trade Organization (WTO), which gave a significant impetus to what soon became widely, if controversially, known as ‘globalization’. In this second round of optimism, there was less in the way of euphoria than there had been in the first one, and more of a feeling that international law might be entering an age of new and dangerous challenge. International lawyers were now promising, or threatening, to bring international norms to bear upon States in an increasingly intrusive manner. A striking demonstration of this occurred in 1994, when the UN Security Council authorized t he use of force to over throw an unconstitutional government in Haiti. In 1999, the UN Security Council acquiesced in (although it did not actually authorize) a humanitarian intervention in Kosovo by a coalition of Western powers. International legal claims were being asserted on a wide range of other fronts as well, and frequently in controversial ways and generally with results that were unwelcome to some. For example, lawyers who pressed for self-determination rights for various minority groups and indigenous peoples were accused of encouraging secession. And newly found (or newly rejuvenated) concerns over democracy, governance, and corruption posed, potentially, a large threat to governments over the world. Some environmenta l lawyers were insisting that, in the interest of protecting a fragile planet, countries should deliberately curb economic growth. (But which countries? And by how much?) Economic globalization also became intensely controversial, as the IMF’s policy of ‘surveillance’ (a somewhat ominous term to some) became increasingly detailed and intrusive, and as ‘structural adjustment’ was seen to have potentially far-reaching consequences in volatile societies. Fears were also increasingly voiced that the globalization process was bringing an increase in economic inequality.

The nuclear age and the space age have led to new developments in international law. The basis of space law was developed in the 1960s under United Nations auspices. Treaties have been signed mandating the internationalization of outer space (1967) and other celestial bodies (1979). The 1963 limited test ban treaty (see disarmament, nuclear) prohibited nuclear tests in the atmosphere, in outer space, and underwater. The nuclear nonproliferation treaty (1968) attempted to limit the spread of nuclear weapons. The agreements of the Strategic Arms Limitation Talks, signed by the United States and the USSR in 1972, limited defensive and offensive weapon systems. This was first of many international arms treaties signed between the two nations until the dissolution of the Soviet Union. Other treaties have covered the internationalization of Antarctica (1959), narcotic interdiction (1961), satellite communications (1963), and terrorism (1973). The Law of the Sea (1983) clarified the status of territorial waters and the exploitation of the seabed. Environmental issues have led to a number of international treaties, including agreements covering fisheries (1958), endangered species (1973), global warming and biodiversity (1992). Since the signing of the General Agreement on Tariffs and Trade (GATT) in 1947, there have been numerous international trade agreements. The European Union (prior to 1993, the European Community) has made moves toward the establishment of a regional legal system; in 1988 a Court of First Instance was established to serve as a court of original jurisdiction on certain economic matters. The establishment of the International Criminal Court (2002), with jurisdiction over war crimes, crimes against humanity, and related matters, marked a major step forward in international law despite the United States' repudiation of the treaty under President George W. Bush. “If there is one lesson that the history of international law teaches, it is that the world at large—the ‘outside world ’ if you will has done far more to mould international law than vice versa. By the beginning of the twenty first century, international lawyers were changing the world to a greater extent than they ever had before but perhaps the lengthiest and the greatest part of the history is yet to be written”

Interrelationship between International Law and Municipal Law Concept of Municipal Law Shaw sees municipal law as law that governs the domestic aspects of government and deals with issues between individuals and the administrative apparatus.

Difference between International Law and Municipal Law International law is concerned with the rights and duties of States in their relations with each other and with international organizations. Domestic (municipal or national) law, the law within a State, is concerned with the rights and duties of legal persons within the State. International law differs from domestic law in two central respects: The law-making process: There is no supreme law-making body in international law. Treaties are negotiated between States on an ad hoc basis and only bind States which are parties to a treaty. The General Assembly of the United Nations is not a law-making body, and so its resolutions are not legally binding. However, UN Security Council resolutions to take action with respect to threats to peace, breaches of the peace, and acts of aggression, are binding on the 192 member States.

Enforcement: International law has no international police force to oversee obedience to the international legal standards to which States agree or that develop as international standards of behaviour. Similarly, there is no compulsory enforcement mechanism for the settlement of disputes. However, there are an increasing number of specialised courts, tribunals and treaty monitoring bodies as well as an International Court of Justice. National laws and courts are often an important means through which international law is implemented in practice. In some instances, the Security Council can authorise the use of coercive economic sanctions or even armed force. For example, in 1990 – 91 when Iraq invaded and occupied Kuwait the international community used armed force to enforce international law (resolutions of the Security Council). Subsequent controversy about the use of armed force against Iraq highlights how difficult it can be to obtain the necessary authorisation from the Security Council under the United Nations Charter. In international law, that is the only legitimate way that collective armed force can be used. In general, international law is enforced through methods such as national implementation, diplomatic negotiation or public pressure, mediation, conciliation, arbitration (a process of resolving disputes other than by agreement), judicial settlement (including specialised tribunals).

Legitimacy and supremacy of international law over domestic law International Law is the law which governs the relations of sovereign independent States inter se Municipal law or State law or national law is the law of a State or a country and in that respect is opposed to International Law which consists of rules which civilized States consider as binding upon them in their mutual relations. Kelsen’s observations National law regulates the behavior of individuals International law the behavior of States or as it is put whereas national law is concerned with the international relations the so called domestic affairs of the State. International Law is concerned with the external relations of the State its foreign affairs. There is a divergence of opinion on the question as to whether International Law and Municipal Law on the various national laws can be said to form a unity being manifestations of a single conception of law or whether International Law constitutes an independent system of law essentially different from the Municipal Law. Kelsen theory implies that all rules of international law were supreme over municipal law, that a municipal law inconsistent with international law was automatically null and void and that rules of international law were directly applicable in the domestic spheres of state. Kelsen's view was on formalistic logical grounds. They opposed strict division of the two laws as demonstrated by the dualists and accept the unitary view of law as a whole. Kelsen utilises the philosophy of Kant as its basis. The binding and superseding nature of international law: Article 27 of the Vienna Convention on the law of treaties states that, “a party may not invoke the provisions of its internal laws as justification for its failure to carry out an international agreement. However, expression on the supremacy on the international law over municipal law in international tribunals does not mean that the provisions of domestic legislation are either irrelevant or necessary. On the contrary, the role of international legal rules is vital to the working of the international legal machine.” The 1945 Nuremberg Trial made individuals subject of international law, there was also Angola Trial, ICTY, ICTR among others Anzilloti6 talks of the conditioning of the two laws. In his opinionated view, state laws are imperatival and hence it has to be obeyed, whereas 6

Anzilloti, T., International Law and State(England: Oxford Press, 1967), 48.

international law is in the nature of promises; it is therefore necessary to transform a promise into command before it becomes applicable in the municipal law. The position also is not sacrosanct, in the sense that law is not necessarily command, people obey the law when they consent to it and often times people obey because of the possible gains that can be acquired. The view of the monists: They maintains that the subject of the two systems of law namely, International Law and Municipal Law are essentially one in as much as the former regulates the conduct of States, while the latter of individuals. According to this view law is essentially a command binding upon the subjects of the law independent of their will which is one case is the States and in the other individuals. According to it, International Law and Municipal Law are two phases of one and the same thing. The former although directly addressed to the States as corporate bodies is as well applicable to individuals for States are only groups of individuals. The expanding horizon of International Law: The increasing intensity of the present relationship between international and domestic law should be the subject of a serious discussion about the best way in which each domestic legal system could face the problems posed by the incorporation of international norms into national law. It is clear that international law is no longer limited to the regulation of diplomatic relations between States and the allocation of spaces and competences between countries. International rules today aim at the regulation of matters which before belonged exclusively to the domestic jurisdiction of States, matters that cover a range of questions, from the way in which a State deals with its own population to the emissions of greenhouse gases, a subject which puts almost all economic activities under the eye of international law. (Tucker, Principles of International Law, 2nd edition(New York, 1966), 291. Misinterpretation of international law and underlying national interest: The

modern international lawyers argue that international law is not fallacious, per se. But the tendency of nations to use international law as an instrument of furthering their national interests is giving international law a bad reputation. A stark example is the US invasion of Iraq. The Bush Administration initially argued that the 2003 invasion of Iraq was justified under the doctrine of pre-emptive self-defense because Iraq had stockpiled weapons of mass destruction and was supporting Al Qaeda. There wasn’t much debate at the time because the Bush Administration kept the predicate intelligence confidential, and the American public were largely willing to trust their government about matters involving U.S. security in the aftermath of 9/11. Months later, it was revealed that the intelligence did not in fact support either of those conclusions.

Inferiority of International Law and Supremacy of Municipal Law Dualistic theory: According to the dualist view the systems of International Law and Municipal Law are separate and self contained to the extent to which rules of the one are not expressly or tacitly received into the other system. Their claimed are backed by three reasons: a) The sources of Municipal Law are customs grown up within the boundaries of the State concerned and statutes enacted therein while the sources of International Law are customs grown up within the Family of Nations and law making treaties concluded by its members. b) In the second place Municipal Laws regulates relations between the individuals under the sway of a State or between the individuals and the State while International Law regulates relations between the member States of the Family of Nations.

c) Lastly there is a difference with regard to the substance of the law in as much as Municipal Law is a law of the sovereign over individuals while International Law is a law between sovereign State which is arrived at an agreement among them. The latter is therefore a weak law.

Inverted Monism theory: The theory that municipal law is in its nature superior to international law has never been found favour in international tribunals, and is no more than an abstract possibility. Unlike Austin who would even deny the term law to international law (but as a positive morality), interted monists do believe that international law is law qua law but not owing to the automatic control on sovereign power of states as claimed by the pure monists but due because it is a derivative of the municipal law itself (ie international law was deemed legitimate because the sovereign powers wanted it to). The transformation theory: According to this theory it is the transformation of the treaty into national legislation which alone validates the extension to individuals of the rules set out in international agreements. The transformation is not merely a formal but a substantial requirement. International Law according to this theory cannot find place in the national or Municipal Law unless the latter allows its machinery to be used for that purpose. InterAmerican Court of Human Rights in Advisory Opinion OC-7/86 requested by Costa Rica in relation to the interpretation of Article 14.1 of the American replied that, “the self executing nature of a treaty is, in general and unless there is a special provision on the matter, a problem of domestic and not international law, since it is a matter of whether such treaty acquires, given the specific domestic mechanics of its approval, the nature of a domestic norm.” Criticizm of the transformation theory: This theory is fallacious in several respects. In the first place its premise that International Law and Municipal Law are two distinct systems is incorrect. In the second place the second premise that International Law binds States only whereas municipal law applies to individuals is also incorrect for International Law is the sum of the rules which have been accepted by civilized states as determining their conduct towards each other and towards each others subjects. In the third place the theory regards the transformation of treaties into national law for their enforcement. This is not true in all cases for the practice of transforming treaties into national legislation is not uniform in all the countries. And this is certainly not true in the case of law making treaties. The delegation theory: According to this theory there is the delegation of a right to every State to decide for itself when the provisions of a treaty or convention are to come into effect and in what manner they are to be incorporated in the law of the land or municipal law. There is no need of transformation of a treaty into national law but the act is merely an extension of one single act. Critisizm of the Delegation theory: The delegation theory is incomplete for it does not satisfactorily meet the main argument of the transformation theory. It assumes the primacy of international legal order but fails to explain the relations existing between municipal and international laws. It is settled by the leading English and American decisions that International Law forms part of the municipal law of those countries. The limits of international law: Jack Goldsmith and Eric Posner argued in their 2004 book, The Limits of International Law, that international law was really just policy, that modern nation states may sign a lot of treaties and agreements but a study of their conduct suggests that they don’t feel bound by them. Michael Scharf in his book Shaping Foreign Policy in Times of Crisis argues that the strength of international law is tested in the most trying times, such as in a national crisis of international interest or a really big international crisis and it is then that international law has proven more successful (refer to the article on success stories of international law)

In dualist systems, international law must be translated into national law, and existing national law that contradicts international law must be "translated away". It must be modified or eliminated in order to conform to international law. However, the need for translation in dualist system causes a problem with regard to national laws voted after the act of translation. In a monist system, a national law that is voted after an international law has been accepted and that contradicts the international law, becomes automatically null and void at the moment it is voted. The international rule continues to prevail. In a dualist system, however, the original international law has been translated into national law - if all went well - but this national law can then be overridden by another national law on the principle of "lex posterior derogat legi priori", the later law replaces the earlier one. This means that the country - willingly or unwillingly - violates international law. A dualist system requires continuous screening of all subsequent national law for possible incompatibility with earlier international law.

Complementary Nature of International Law and Municipal Law International law does not entirely ignore municipal law. For example, municipal law may be used as evidence of international custom or of general principles of law, which are both sources of international law. Moreover, international law leaves certain questions to be decided by the municipal law Harmonisation theory succinctly provides an answer to the true relationship of the two laws by asserting that The starting point in the legal order is that man lives not in one jurisdiction, but in both. International law and municipal law are concordant bodies of doctrine, autonomous but harmonious in their aim of basic human good. When faced with an actual problem, a municipal court applies the rules operative within its jurisdiction and may in fact, apply international law to the exclusion of municipal law, or vice-versa.

Public International Law and Private International Law Public international law (or the law of nations) is a body of customary or conventional rules which are considered as legal binding by civilized states in their intercourse with each other and is concerned solely with the rights and obligations of sovereign states. Private international law (or the conflict of laws) may be defined as the rules voluntarily chosen by a given state for the decision of cases which have a ‘foreign’ element or complexion. Thus, where two people of country X make a contract in a country Y for the sale of goods situated in Z, payment to be made in a city of X, a court of country X would certainly recognize and apply law of country Y as far as it affected the validity of the contract. The private international law forms part of municipal laws of a state and is meant for purpose of deciding weather a given case involving “foreign’ element (it shall be adjudicated upon by its own domestic laws or by laws of some other state; and (ii) shall be subject of its courts of some other state. Private international law deals with cases in which some relevant fact has a geographical connection with a foreign country and may on that ground raise a question as to the application of one’s own or some other appropriate foreign law as to determination of the issue or the exercise of jurisdiction by domestic or foreign courts. Whereas, The public international law is concerned solely with rules concerning the rights and obligation of the

states (i.e. countries) interest and generally speaking individuals and their dealings are the sole concerns of private international law. In the case of private international law, the disputes are of a private character, though one of the disputes, may be a sovereign state. Moreover, unlike public international law, private international law of every state is different. Also there are as many systems of private international law as there are systems of municipal law, thus, we have rules of private international law in the fields of birth, marriage, divorce insolvency, wells contracts death and the like. The transactions over which Private International Law assumes control are strictly private in their nature, in which the State as such has generally no interest. The private contract of the citizen of one State with the citizen of another, or a conveyance or will made by the citizen of one State transferring property in another, are subjects of private international law, with which public international law has no concern. In cases to which private international law is applicable recourse is had to judicial tribunals acting under the authority and in accordance with the rules of procedure of the country in which they sit. They are asked to hear the evidence and administer justice as though the case were one of purely domestic concern. But in a contest between sovereign states arising under the law of nations, no such recourse is ordinarily practicable. No State would consent to have its disputes decided by the courts of another power, nor to appear before them, a suppliant for the justice it demands as a right. These International laws are designed to determine where any given case will be tried out. An institution has been set in place in order to ensure that a case is being carried out in the proper jurisdiction. This institution is also responsible for many issues of citizenship that arise that pose an international conflict. The term conflict of laws itself originates from situations where the ultimate outcome of a legal dispute depended upon which law applied, and the common law courts manner of resolving the conflict between those laws. In civil law lawyers and legal scholars refer to conflict of laws as private international law. Private international law has no real connection with public international law, and is instead a feature of municipal law which varies from country to country. The three branches of conflict of laws are a) Jurisdiction – whether the forum court has the power to resolve the dispute at hand b)Choice of law – the law which is being applied to resolve the dispute c) Foreign judgements – the ability to recognise and enforce a judgement from an external forum within the jurisdiction of the adjudicating forum. Some remarkable areas in which Conflict of Law becomes functional are as follows: a) conflicts between the law of nationality and the law of domicile b) recognition of the legal personality of foreign companies, associations and institutions c) jurisdiction of the selected forum in the case of international sales of goods d) Recognition of Divorces and Legal Separations e) jurisdiction in divorce and marriage desolation f) application of foreign laws and case laws (All have separate conventions to deal with specific ones)

The meeting point The fact that the jurisdictional rules of public international law impose limitations on the rules of private international law seems beyond intelligent dispute and State practice relating to jurisdictional claims over civil matters is of relevance in determining the current state of customary international law. Unfortunately, the identified connections between public international law and private international law have gained little academic attention and the subjects of

public international law and private international law are taught separately with little if any attention being given to their respective effect on each other Jurisdictional sovereignty: Dow Jones & Company Inc v Gutnick, [2002] HCA 56: the High Court of Australia had to decide whether a Victorian businessman, Joseph Gutnick, was allowed to sue a US publishing company, Dow Jones & Company Inc, in a Victorian court over an allegedly defamatory article available in large parts of the world on Dow Jones’ website. Further it was for the High Court to decide whether Victorian law would be applied. International League Against Racism & Anti-Semitism (LICRA) and the Union of French Jewish Students (UEJF) v. Yahoo! Inc County Court of Paris, interim court order of 20th of November 2000: the defendant was operating a website from paris which, amongst other things, contained an auction service where Nazi memorabilia/junk was frequently on offer. The website could be described as the Yahoo family’s “flagship”, and in contrast to the country-specific Yahoo sites (e.g. www.yahoo.fr), this site was said to be aimed at the world at large Article 19 of the ICCPR: On an initial level it is worth noting that “international bodies responsible for scrutinising compliance with human rights standards have increasingly interpreted those obligations [e.g. freedom of expression as provided for under the ICCPR] as also having an extraterritorial scope, which could intervene in a country’s exercise of choosing its lex fori for settlement of dispute.

Universal and Regional International Law The debate surrounding regionalism and universalism in international organizations reflects the old dilemma between centralism and local governance at the domestic level. Both the Covenant of the League of Nations and the Charter of the United Nations display a clear preponderance of universalist features. An important universalist feature of the Charter is the prevalence of Charter obligations over 'any other international agreement' (Article 103). Therefore, any regional agreements that are at variance with the Charter would have to yield. In actual practice, the most important pillar of universalism has turned out to be the provision on membership (Article 4). The almost complete participation of the international community remains the United Nations' greatest strength and source of legitimacy. Covenant also makes reference in Article 21 to 'regional understandings like the Monroe Doctrine' . In the negotiations surrounding the drafting of the United Nations Charter, the struggle between universalist and regionalist sentiments played a prominent role. The Dumbarton Oaks proposals were strongly dominated by a universalist approach. At San Francisco important modifications in favour of regionalism were inserted at the insistence of the Latin American and Arab States. They include the right to individual and collective selfdefence as enshrined in Article 51 and the primacy of dispute settlement through regional means (Articles 33(1) and 52(2) and (3). On the other hand, enforcement action remained under the overriding jurisdiction of the Security Council (Articles 24, 25, 39-42, 53(1) and 54). Interestingly enough, regional activities in fields other than peace and security received scant attention and are not regulated in the Charter. Regionalist features have emerged both inside and outside the United Nations. Internal regionalization has occurred through the composition, structure and decision-making processes of the United Nations. External regionalization has been manifested through formal and informal cooperation with regional bodies. More important than these organizational questions is the distribution of functions in such areas as human rights, economic cooperation and peace and security between universal and regional institutions and the prospects for their constructive cooperation.

Cooperation between the United Nations and regional organizations has taken a variety of forms ranging from de facto collaboration to highly formalized and permanent relationships. The most obvious formal relationship is observer status for regional organizations with particular UN organs. The General Assembly has granted observer status to a number of regional organizations, including the Organization of American States (OAS) in 1948, the League of Arab States in 1 9 5 0 , the Organization of African Unity (OAU) in 1 9 6 5 , the European Economic Community (EEC) in 1974 and the Conference on Security and Cooperation in Europe (CSCE) in 1993. Human Right: The Vienna Declaration of the 1993 UN World Conference on Human Rights confirms that regional arrangements should reinforce universal human rights standards and endorses efforts to strengthen these arrangements. It even advocates the establishment of regional and subregional arrangements where they do not already exist. Economic Cooperation: GATT-WTO-WB and Regional Development Banks examples are sufficient to demonstrate that regional action in the inter-regional cooperation or global arrangements under which the right complementarities can be created and an optimum allocation of resources can be achieved. Peace and Security: The logic of the Charter led to a traditional distinction between two different types of regional institutions whose tasks were seen to be entirely different: Regional institutions for the maintenance of peace and security within the region under Chapter VIII on the one hand and alliances for the purpose of collective self-defense against external threats under Article 51 on the other. The OAS, the Arab League and the OAU were regarded as the classic examples for the former; NATO, the WEU and the, now defunct, Warsaw Pact as examples for the latter. This artificial distinction was soon cast into doubt. Chapter VIII agencies assumed functions of collective self-defense. The Secretary-General's 1992 Agenda for Peace adopts a wide and flexible description of regional arrangements and agencies including regional organizations for mutual security and defens Enforcement Action: Practice in the relationship between regional and universal bodies in the area of peace and security has undergone significant developments over the fifty years of the United Nations' existence. Security Council supervision is especially important where military force is involved. The use of the Warsaw Pact to cover Soviet military intervention in Czechoslovakia in 1968 is a case in point. The attempt of the United States to justify its 1983 invasion of Grenada, inter alia, by reference to a call by the Organization of Eastern Caribbean States (OECS), of which the United States is not even a Member, was equally unconvincing. Moreover, the veto power of the permanent members of Security Council overrides the actions of any regional mechanism, proving the competence of UN in this area. Regional Peace-keeping: Regional institutions have repeatedly dispatched peace-keeping forces. The deployment of OAS forces in the Dominican Republic in 1965 created controversy in the Security Council but led to no clear outcome. By contrast, the deployment of OAU troops in Chad in 1981 was simply taken note of by the Security Council There is no inherent superiority in either regionalism or universalism. The admittedly difficult task is to apply the best principles of federalism to international law by trying to find the level best equipped to deal with a specific problem. In the area of human rights, this may well be the regional level provided the right conditions have been created, the area of peace and security, a strong role of supervision and control for the universal level is indispensable. Regional economic cooperation has proved valuable but universal and inter-regional efforts have remained essential for development

Chapter Two: Sources of International Law

Meaning of Source of International Law According to Stark, the material source of international law may be defined as the actual material from which an international lawyer determines the rule applicable to a given situation. These materials fall into five principle categories or forms: custom, treaties, decisions of judicial or arbitral tribunals, juristic works and decisions or determination or the organs of international law. Article 38 of the statute of the international court of justice defines these material sources of international law: a) international treaties or conventions b) international customs as evidence of general practices accepted by law c) the general principles recognized by civilized nations d)judicial decisions an teachings of the most highly qualified publicists of various countries as subsidiary means for determination of rules of law. Article 38(1) clearly states where international law is to be found. Certainty in finding the law is important and is seen to be the hallmark of stable and strong legal systems. This has made art 38(1) an important reference point for most international lawyers who wish to defend or critically evaluate particular positions taken by their respective countries.

International Conventions and Treaties Treaties, or international conventions, can be bilateral (between two States) or multilateral (between many States). In addition to treaties, there are agreements between States that are not intended to be governed by international law. These agreements, known as ‘arrangements of less than treaty status’, are generally expressions of intention or political commitment. The Vienna Convention on the Law of Treaties came into force on 27 January 1980. Although it is not a complete code of the law of treaties, it declares existing law and also provides evidence of emerging norms of international law. It deals with the conclusion of treaties, the termination of treaty relationships, and the effect of breach of treaty obligations. It does not deal with treaties between States and non-State organisations; questions of State succession; or the effect of war on treaty obligations and relationships. (For elaborate information refer to chapter 9 on laws of treaties)

Customs or Customary International Law Customary international law describes general practices accepted as law by States. The development of customary international law is an ongoing process, making it more flexible than law contained in treaties. The task of identifying or describing customary international law, involves consideration of the following elements: • the degree of consistency and uniformity of the practice; • the generality and duration of the practice; • the interests of specially affected States; and • the degree to which the States who adopt the practice do so from a recognition that the practice is required by, or consistent with prevailing international law. The shorthand for the belief that the practice is required by law is opinion juris et necessitates, a Latin phrase.

Customary rules crystallize from usage or practices which have evolved approximately in these three sets of circumstances: a) Diplomatic relations between states b) practice of international organs c) state laws, decisions of state courts and military or administrative practices (Starke: 32) A German court held in the case of Luberk v. Mecklenburg-Schwerin(1927) that a single act of a state agency or organization could not create any rights of customs in favour or another state which has benefited by the act, conduct to be customary international law must be regular and repeated. State practice is determined by examining what States and their officials do, and also statements such as those contained in bilateral treaties, voting patterns on resolutions at the United Nations, conclusions of international conferences, and other documents. The Universal Declaration of Human Rights, for example, was adopted by the UN General Assembly in 1948 and, while it is not binding like a treaty, most of it is recognised as establishing fundamental human. Sometimes customary international law is codified in a treaty – for example, the Vienna Convention on the Law of Treaties. But it need not be written down in the form of a treaty to be binding on States. Customary international law applies to every State. Therefore, where customary law and treaty law are complementary, and cover the same or similar obligations, non-parties will be bound by custom, and parties to the treaty will be bound by both the treaty and custom. Where custom and treaty law conflict, the situation is more complex. If the treaty is more recent than the customary law, the treaty will bind States that are parties. If the principle of customary law has developed after the adoption of a treaty, the treaty will generally continue to govern the relations between the parties. (Nicaragua v United States) (Merits) [1986] ICJ Reports 14: In 1984 Nicaragua filed an application instituting proceedings against the United States alleging illegal military and paramilitary activities against it. These alleged activities included, among others, laying mines in Nicaraguan territorial waters and funding and arming a rebel group acting against the Government (the Contras). The United States opposed the jurisdiction of the International Court, asserting that it has reserved a right not to appear before it when the issues being dealt with are matters arising under a multilateral treaty. In this case Nicaragua had claimed that the United States had breached several treaties including art 2(4) of the UN Charter prohibiting the use of force. Nicaragua on the other hand claimed that the provisions the United States had breached were part of customary law. The Court has next to consider what are the rules of customary international law applicable to the present dispute. For this purpose, it has to direct its attention to the practice and opinio juris of States. The Court notes that there is in fact evidence, to be examined below, of a considerable degree of agreement between the Parties as to the content of the customary international law relating to the non-use of force and non-intervention. This concurrence of their views does not however dispense the Court from having itself to ascertain what rules of customary international law are applicable. The mere fact that States declare their recognition of certain rules is not sufficient for the Court to consider these as being part of customary international law, and as applicable as such to those States. Bound as it is by Article 38 of its Statute to apply, inter alia, international custom ‘as evidence of a general practice accepted as law’, the Court may not disregard the essential role played by

general practice. Where two States agree to incorporate a particular rule in a treaty, their agreement suffices to make that rule a legal one, binding upon them; but in the field of customary international law, the shared view of the Parties as to the content of what they regard as the rule is not enough. The Court must satisfy itself that the existence of the rule in the opinio juris of States is confirmed by practice. Also another relevant case is Continental Shelf (Libyan Arab Jarnahiriyu/Malta)), ICJ Reports 1985, pp 29–30, para 27: It is of course axiomatic that the material of customary international law is to be looked for primarily in the actual practice and opinio juris of States, even though multilateral conventions may have an important role to play in recording and defining rules deriving from custom, or indeed in developing them.

State Practice When examining state practice to determine relevant rules of international law, it is necessary to take into account every activity of the organs and officials of states that relate to that purpose. There has been continuing debate over where a distinction should be drawn as to the weight that should be attributed to what states do, rather than what they say represents the law. In its most extreme form, this would involve rejecting what states say as practice and relegating it to the status of evidence of opinio juris. A more moderate version would evaluate what a state says by reference to the occasion on which the statement was made. It is only relatively powerful countries with extensive international contacts and interests that have regular opportunities of contributing by deed to the practice of international law. The principal means of contribution to state practice for the majority of states will be at meetings of international organisations, particularly the UN General Assembly, by voting and otherwise expressing their view on matters under consideration. Moreover, there are circumstances in which what states say may be the only evidence of their view as to what conduct is required in a particular situation. The notion of practice establishing a customary rule implies that the practice is followed regularly, or that such state practice must be "common, consistent and concordant". Given the size of the international community, the practice does not have to encompass all states or be completely uniform. There has to be a sufficient degree of participation, especially on the part of states whose interests are likely be most affected, and an absence of substantial dissent. There have been a number of occasions on which the ICJ has rejected claims that a customary rule existed because of a lack of consistency in the practice brought to its attention.7 Within the context of a specific dispute, however, it is not necessary to establish the generality of practice. A rule may apply if a state has accepted the rule as applicable to it individually, or because the two states belong to a group of states between which the rule applies.8 Demand for rules that are responsive to increasingly rapid changes has led to the suggestion that there can be, in appropriate circumstances, such a concept as "instant custom". Even within traditional doctrine, the ICJ has recognised that passage of a short period of time is not necessarily a bar to the formation of a new rule. Because of this, the question is sometimes raised as to whether the word "custom" is suitable to a process that could occur with great rapidity.9

7

Asylum Case (Colombia v Peru) [1950] ICJ Rep 266 at 277; Advisory Opinion on the Legality of the Threat or Use by a State of Nuclear Weapons in Armed Conflict [1996] ICJ Reports 226. 8 Case Concerning Right of Passage over Indian Territory (Portugal v India) (Merits) [1960] ICJ Reports 6 at 39 9 North Sea Continental Shelf cases, note 6 at 43.

Generally, in Nicaragua, the Court appears to expand the category of activities that can constitute state practice. Its analysis is not easy to follow for the discussion of state practice and opinio juris is often elided and it is sometimes uncertain whether the Court regards a particular action as state practice, opinio juris, or as doing service as both. The Court relies on acceptance of treaty obligations as state practice. While this is a generally accepted source of state practice, the Court places special emphasis on the fact that both Nicaragua and the United States have accepted particular treaty obligations as evidence that they at least are firmly bound by such norms . . . The Court seems to accord the status of state practice to statements made by the International Law Commission and decisions of the International Court itself. As members of these two bodies are not state representatives, the characterisation of their statements as the practice of states is a considerable extension of this notion. It implies that customary international law is based on more than simply the consent of states and that the activities of international groups made up of independent individuals can contribute to it In Nicaragua, therefore, the World Court offers little guidance on the important problem of cases where significant opinio juris is unsupported by state practice. In order to establish a customary norm of non-intervention, the Court locates opinio juris to support it, but finds only contrary state practice. The Court dismisses this evidence of state practice by noting that it is not accompanied by the requisite opinio juris to form a norm allowing foreign intervention. From this the Court deduces the existence of the norm of nonintervention. The paucity of actual state practice to support a norm of non-intervention is thus bypassed. Another technique used by the Court to avoid confronting the troubling issue of state practice especially in relation to the principle of non-intervention is to reaffirm the North Sea dictum that customary law is formed from settled practice and opinio juris but then to focus its scrutiny entirely upon the latter requirement, glossing over the absence of confirming state practice . . . The analysis of state practice presented in the Nicaragua case attaches great weight to the rhetoric of a state apparently transgressing a norm of customary international law rather than to the response of the international community. It indicates a static view of custom, for it is very rare that a state will clearly acknowledge that it is relying on a new international right as justification for a particular action. Much more common is invocation of exceptions to international rules and the Nicaragua Court contemplates acceptance of these claims at face value. For example, rights to anticipatory self-defence and humanitarian intervention are often used to justify apparent violations of the prohibition of the use of force. On the Nicaragua analysis these claims apparently confirm the customary rule. In Nicaragua, the Court acknowledges the ‘essential role played by general practice’ in the generation of rules of custom. But the issue of how widespread a practice must be in order to generate a norm of customary international law is dealt with obliquely by the International Court. As noted above, part of its analysis fits with a view of customary law based entirely on the behaviour of particular states and other parts fit with a broader view. Certainly the major focus of the Court’s investigation is the actions of Nicaragua and the United States and the behaviour of other states is either alluded to in the most general way or dismissed as irrelevant to the issues before the Court. The requirement of consistency of state practice is also significantly qualified in Nicaragua. Earlier cases had stressed the importance of uniformity and consistency in state actions and had pointed to inconsistency as one basis for rejecting an asserted rule as custom. The precise level of consistency, however, had never been spelled out.

Opinio juris A wealth of state practice does not usually carry with it a presumption that opinio juris exists. “Not only must the acts concerned amount to a settled practice, but they must also

be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it.” In Advisory Opinion on the Legality of the Threat or Use by a State of Nuclear Weapons in Armed Conflict [1996] ICJ Reports, “where practice (of which evidence is given) comprises abstentions

from acting, consistency of conduct might not establish the existence of a rule of customary international law. The fact that no nuclear weapons have been used since 1945, for example, does not render their use illegal on the basis of a customary obligation because the necessary opinio juris is lacking.” Although the ICJ has frequently referred to opinio juris as being an equal footing with state practice, the role of the psychological element in the creation of customary law is uncertain. As we have seen in Nicaragua, the Court emphasises the importance of the ‘subjective’ or psychological factor in the creation of custom and implies that it is of greater significance than state practice. Its requirement of opinio juris, however, is satisfied by relatively slight evidence of the motivation of states in the traditional sense. There is also considerable overlap in the actions considered as evidence of state practice and those considered evidence of opinio juris. Sources of opinio juris approved by the Nicaragua Court which come within the traditional parameters include references by state representative to principles as ‘fundamental or cardinal’ rules of customary international law. The Court points to statements in the Nicaraguan Memorial on the Merits and the United States’ Counter Memorial on Jurisdiction and Admissibility refer- ring to the prohibition on the use of force as a norm of jus cogens. As with state practice, however, the Court confines its search for opinio juris to the activities of the two states in dispute before it with two exceptions: the Court attributes significance for opinio juris to its own decisions and to the International law Commission’s Commentary to Article 50 of its draft Articles on the Law of the Treaties giving the prohibition on the use of force as a ‘conspicuous example’ of a rule of jus cogens. The Nicaragua Court also extends the traditionally accepted sources of opinio juris in taking a single example of an abstention as constituting the subjective element of custom. Unlike the cautious approach to abstention shown in the Lotus case, the non-assertion by the United States in the jurisdiction phase of the Nicaragua case of any right to collective armed response to acts not constituting an armed attack is taken by the International Court as opinio juris that no such right exists in customary international law. The role of resolutions of international organisations as evidence of opinio juris is endorsed in Nicaragua. In the context of the customary prohibition on the use of force it argues that opinio juris may be deduced ‘with all due caution’ (a phrase given no further definition) from the attitudes of the Parties and other states towards certain General Assembly resolutions, particularly the Declaration on Friendly Relations .

Local or Regional Customs Asylum Case (Colombia v Peru) (Judgment) [1950] ICJ Reports 266: In a case regarding the granting of political asylum, an issue arose as to whether there existed a form of regional customary international law which governed the legal relations between Colombia and Peru on the matter.

Jus Cogens There are some principles of international law, however, that have become so widely accepted that they are now considered to be fundamental principles and rules that may not be altered or broken. Such principles currently include the prohibitions against slavery and torture, genocide, the use of armed force, and piracy on the high seas; and more positively, the principle of racial non-discrimination; and, the right to self-determination. These

principles of international law are known as jus cogens. In Latin this means ‘compelling law’ and refers to so-called ‘peremptory norms’ of general international law. In time, new principles may become part of the jus cogens. Not every principle of international law has the status of jus cogens. To begin to understand how compelling principles or rules of international law are and how they become so, it is important to make sense of how international law is formed.

General Principles of International Law The scope of general principles of law, to which Article 38(1) of the Statute of the ICJ refers, is unclear and controversial but may include such legal principles that are common to a large number of systems of municipal law. Given the limits of treaties or custom as sources of international law, Article 38(1) may be looked upon as a directive to the Court to fill any gap in the law and prevent a non liquet by reference to the general principles. The significance of general principles has undoubtedly been lessened by the increased intensity of treaty and institutional relations between states. Nevertheless, the concepts of estoppel and equity have been employed in the adjudication of international disputes. For example, a state that has, by its conduct, encouraged another state to believe in the existence of a certain legal or factual situation, and to rely upon that belief, may be estopped from asserting a contrary situation in its dealings. The principle of good faith was said by the ICJ to be "[o]ne of the basic principles governing the creation and performance of legal obligations".[23] Similarly, there have been frequent references to equity. It is generally agreed that equity cannot be employed to subvert legal rules (that is, operate contra legem). This "equity as law" perception is reinforced by references to equitable principles in the text of the United Nations Convention on the Law of the Sea 1982, though this may be little more than an admission as to the existence, and legitimation, of the discretion of the adjudicator. However, the principles of estoppel and equity in the international context do not retain all the connotations they do under common law. The reference to the principles as "general" signify that, if rules were to be adapted from municipal law, they should be at a sufficient level of generality to encompass similar rules existing in many municipal systems. Principles of municipal law should be regarded as sources of inspiration rather than as sources of rules of direct application. We can distinguish five categories of general principles that have been invoked and applied in international law discourse and cases. Each has a different basis for its authority and validity as law. They are10: The principles of municipal law ‘recognized by civilized nations’. (1) The principles of municipal law ‘recognized by civilized nations’. (2) General principles of law ‘derived from the specific nature of the international community’. (3) Principles ‘intrinsic to the idea of law and basic to all legal systems’. (4) Principles ‘valid through all kinds of societies in relationships of hierarchy and co- ordination’. (5) Principles of justice founded on ‘the very nature of man as a rational and social being’. The International Court and its predecessor the Permanent Court of International Justice have made reference on a number of occasions to ‘generally accepted practice’ or ‘all systems of law’ as a basis for its approval of a legal rule. (But curiously the Court has 10

Oscar Schachter, International Law in Theory and Practice, Martinus Nijhoff, Dordrecht, 1991.

done so without explicit reference to its own statutory authority in Article 38(1)(c)).The Chorzo´ w Factory case states that ‘every violation of an engagement involves an obligation to make reparation’ and that ‘a party cannot take advantage of his own wrong’, These maxims and certain maxims of legal interpretation, as for example, lex specialis derogat generalis. The second category of general principles included comprises principles derived from the specific character of the international community. The most obvious candidates for this category of principles are those principles of co-existence. They include the principles of pacta sunt servanda, non-intervention, territorial integrity, self-defence and the legal equality of States. Some of these principles are in the United Nations Charter and therefore part of treaty law, but others might appropriately be treated as principles required by the specific character of a society of sovereign independent members. The third category is even more abstract but not infrequently cited: principles ‘intrinsic to the idea of law and basic to all legal systems’. As stated it includes an empirical element – namely, the ascertainment of principles found in ‘all’ legal systems. It also includes a conceptual criterion – ‘intrinsic to the idea of law’.

Judicial Decisions The decisions of international and municipal courts and the publications of academics can be referred to, not as a source of law as such, but as a means of recognizing the law established in other sources. Often the International Court of Justice will consider General Assembly resolutions as indicative of customary international law. In practice the International Court of Justice does not refer to domestic decisions although it does invoke its previous case-law. There is no rule of stare decisis in international law11. The decision of the Court has no binding force except between the parties and in respect of that particular case. Nevertheless, often the Court would refer to its past decisions and advisory opinions to support its explanation of a present case and also the law that it has applied in previous cases. It is also concerned to ensure procedural consistency. With an increase in the number of specialist international tribunals and courts this practice is likely to change. For instance, judgments of the International Criminal Court (ICC), the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) will no doubt be referred to by anyone wishing to identify the relevant law in the area of international criminal law. Moreover, the International Court has shown that it regards itself as free to ‘develop’ international law, without being tied by the weight of prior practice and authority, as witness its judgment in 1951 in the Fisheries Case (United Kingdom- Norway) upholding the legitimacy of the baselines methods for delimiting the territorial sea in certain coastal waters. Clearly, to the extent that a decision by the Court, or a particular principle laid down by it becomes accepted by states generally, as occurred with this baselines method. An example of a temporary – as distinct from a permanent – international judicial body contributing substantially towards the development of international law is that of the judgment of the International Military Tribunal at Nuremberg in 1946 which laid down important principles relating to crimes against the peace and security of mankind. Not 11

The decision of the Court has no binding force except between the parties and in respect of that particular case (article 59).

to be overlooked in this connection is the contribution to the development of international law in particular areas due to decisions of regional international courts such as, for example, the Court of Justice of the European Communities . . . and the two regional courts concerned with human rights, namely, the European Court of Human Rights and the Inter-American Court of Human Rights. The European Court of Justice (ECJ) and the European Court of Human Rights cite one another’s decisions; the Inter- American Court of Human Rights looks frequently to the European Court’s caselaw. Approximately 60% of the citations of Quebec courts are to sources other than Quebec decisions, including French authors and decisions, common law decisions and authors from a range of countries.12

Juristic writings The scholarly works of prominent jurists are not sources of international law but are essential in developing the rules that are sourced in treaties, custom and the general principles of law. This is accepted practice in the interpretation of international law and was utilised by the United States Supreme Court in The Paquete Habana case (175 US (1900) 677 at 700-1). Much of what has been said about judicial decisions applies also to teachings. History shows that in the seventeenth and eighteenth centuries international law was not so much the creation of princes (States) but of publicists, from Grotius to Vattel. Their visionary writings guided nascent practice and not vice versa. That situation has not really changed. A certain trust must be put in authors whose past work has stood the test of an international academic discourse and shown them as reliable scholars. In the last resort this trust is a substitute for the systematic verification of the results of research. That puts the matter in perspective. Monographs are the sources on which textbooks rely. If an error or oversight crept into the monograph, it will be repeated in textbooks. Many key individuals who sit as judges of courts on tribunals, or who are members of diplomatic missions or represent their government in international organisations also write books, articles and speak at conferences. For example, Judges Rosalyn Higgins (United Kingdom), Sir Kenneth Keith (New Zealand) and Christopher Weeramantary (Sri Lanka) were academics prior to their appointments and have continued to pub- lish in journals and books. All would be considered to be ‘publicists’ for the purposes of art 38(1)(d). Other sources treated similarly to the writings of eminent publicists, and at least as authoritative15 are: • the reports, research and draft articles produced by the International Law Commission (a subsidiary organ of the UN General Assembly responsible for the progressive development and codification of international law: UN Charter, Article 13(1)(a)); • resolutions and working papers of expert bodies; and • the workings of secretariats providing the legal basis for conferences and working groups such as the Hague Codification Conference

Alternative sources of international law

12

Rothwell, Kaye, “international law Cases and Materials with australian Perspectives ”Cambridge University Press, 2010, 92.

Since art 38(1) was drafted the international community has also found new ways of creating law. This is partly due to the fact that art 38(1) had been drafted to reflect the will of States as to how law was to be made. However, the plurality of power bases internationally has led States to relate differently to other States and transnational actors, like multinational corporations, non-governmental organisations or banks. This has meant that international law is no longer to be found just in the formalistic representations of the normative culture of the State system. Further, through interdependence, States have come to delegate their role in developing the culture of the international system to organisations that in some cases act almost like a legislative assembly. Internationally, this is particularly the case in relation to areas where technical codes are important, such as the work of the World Health Organization (through the World Health Assembly). The European Union in particular is also recreating our conceptions of sources of law among States. Members of the European Union are subjected to regulations and directives of the Commission without having a direct veto over its decisions. These and other developments have reshaped the normative landscape of the international system and continuously exert pressure on the traditional mechanisms for creating international law. Soft laws: The terms ‘hard law’ and ‘soft law’ are often used in writings about international law. ‘Hard law’ refers to binding law such as resolutions of the UN Security Council, treaty obligations to which a State has agreed and rules of customary international law. The term soft law is used in two different situations: a) Where treaty obligations are expressed in vague or flexible terms, rather than clear and concrete terms, For example, the Convention on Biological Diversity (1992) states that each party is to ‘as far as possible and as appropriate, cooperate with other Contracting Parties’ (Article 5). In the Tasmanian Dams Case,13 a majority of the High Court of Tasmania decided that the Convention for the Protection of the World Cultural and Natural Heritage (1972) imposed obligations on the parties. b) Resolutions and declarations of international organizations: Resolutions of international organisations are another example of soft law that can form the building blocks of hard law. Resolutions of the General Assembly are not binding even if they are unanimous, other than resolutions concerning the internal workings of the UN or matters within its competence, such as election to the Security Council. However, General Assembly resolutions may declare customary law or assist in its formation. For example, in the Nicaragua Case the ICJ referred to a number of resolutions of international bodies, particularly the UN General Assembly, for evidence of opinio juris, supporting a prohibition on the use of force, and against intervention in the internal affairs of other States

Chapter Three: Recognition

13

Commonwealth v Tasmania (1983) 158 CLR 1.

Concept of Recognition At the first years of 20th century, there were nearly fifty states in the world arena, just before the World War II the number reached approximately seventy-five and in 2005, there were almost 200. Each State creation, again and with some problems, put the recognition concept on the agenda of international community. Recognition has become much important especially by reason of its results. What is meant by recognition of States As mentioned above because of its results, today recognition is a popular subject of international law. Recognition of an entity doesn’t mean only that this entity has met the required qualifications, but also that the recognising state will enter into relations with the recognised State and let that State to enjoy usual legal consequences of recognition such as privileges and immunities within the domestic legal order Therefore it is claimed that, generally the decision of to recognise or not, depends on political views rather than legal grounds. It is right because to enter into relations with a foreign State and permit some privileges to her, is directly relevant to the State’s interests. Thus, when States give a decision about recognition, of course they will weigh the advantages against the disadvantages of this decision. Diplomatic recognition in international law is a unilateral political act with domestic and international legal consequences, whereby a state (or a international system such as UN) acknowledges an act or status of another state or government. Recognition can be accorded either de facto or de jure, usually by a statement of the recognizing government According to Grant14: It as “a procedure whereby the governments of existing states respond to certain changes in the world community.”Then, it can be said that, recognition is an activity of States as a “legal person” of international law. According to Starke: Recognition is, as the practice of most states shows, much more than a question of policy than law, it is the policy of recognizing state by the necessity of protecting its own interests Recognition takes place mostly in three natures:

• • •

Succession: This term means that one state "inherits" the rights and responsibilities of another state. Russia is the successor state to the USSR. Secession: this means that a new state is created from part of the territory of an old state. Armenia (and many other states) seceded from the USSR. Self-Determination--This concept is a right of peoples to determine their own political arrangements. It may be out of place in the current discussion. However, it is important to note that de-colonization (the granting of independence to former colonial peoples) is a more appropriate topic for discussion here. While the decolonization process is nearly "complete" in many areas of the world, there are still some examples.

Recognition of State When we discuss whether the act of recognition actually creates the new state, different commentators will respond with different conclusions depending on what character of the state is seen to predominate. In certain situations one may precede the other, such as the nationalist movement that later gains enforceable rights of statehood or the artificially created state, such as a state set up and constituted by another or other states, that later provides a sense of nationalistic identity to its nationals. However, there is no standard 14

T.D. Grant, “The Recognition of States: Law and Practice in Debate and Evolution”, (Praeger Publishers, Westport, CT.1999)

model for the origins of statehood. Even though the two theories coexist and support each other, they coexist inharmoniously. A single theory of recognition may not be able to contemplate both visions of the state and a single theory of recognition may not be acceptable to a single individual who may prefer to select the model for the creation of state that better addresses the given situation. The version that a particular jurist accepts and applies evidences the understanding that the person has about what constitutes the nature of the state. Recognition Does Not Create a State or the declaratory theory Declaratory theory adopts that States and governments gain in the international personality when they come into existence. Many commentators, such as Peterson, have held that state practice clearly favors the declaratory model, that is, that the entity exists as a state before recognition. “The better view is that the granting of recognition to a new state is not a ‘constitutive’ but a ‘declaratory’ act; it does not bring into legal existence a state which did not exist before. The primary function of recognition is to acknowledge as a fact something which has hitherto been uncertain According to Montevideo Convention or Convention on Rights and Duties of States art.3, art. 6, Dec. 26, 1933: The recognition of a state merely signifies that the state which recognizes it accepts the personality of the other with all the rights and duties determined by international law. Recognition is unconditional and irrevocable. 15

The I.C.J. has also pronounced that it adheres to the declaratory view, in the sense that the failure to maintain effective control during the process of dissolution of a state does not extinguish the legal entity as per the U.N. There is state practice and theoretical justifications to support the notion that recognition has no effect on whether the state exists. There is, however, also state practice that opposes that view and, upon deeper consideration, the theory underpinning the theory has considerable weakness. First we look to state practice and the existence of opinio juris to assess whether a new state exists as a legal person before and following the act of recognition. The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit. Many national courts have recognized international rights in states that accrued before international recognition of the entity as a new state, suggesting a rejection of the notion that the state did not exist before recognition. The reverse is true when a state is occupied and loses independence and effective control of its territory and population. The state as an entity with rights and obligations does not cease to exist. As mentioned above, the territory is not regarded as terra nullius: “while unrecognized territorial communities are not states, neither are they terra nullius; as a community, they enjoy some rights associated with international legal personality.” 16In addition, non-recognition does not necessarily mean that entities escape liability for violations of international law. Furthermore, even if the legal actor does not mislead or misconstrue, the effects of the act may be unintended, that is, the state actor may intend to declare the existence of a new state, but in doing so, the act has a constitutive effect. Again, we can look at the dissolution of the former S.F.R. Yugoslavia as an example. Bosnia-Herzegovina and Croatia arguably did 15

Application of the Convention on the Prevention and Punishment of theCrime of Genocide (Bosn. & Herz. v. Serb. & Mont.), Judgment, 2007 I.C.J. 91 16 Western Sahara, Advisory Opinion, 1975 I.C.J. 12 (Oct. 16);

not fully satisfy the criteria for declaratory recognition, so the recognition of those entities as new states may have had constitutive effect. There are theoretical reasons why the declaratory perspective might be favored. If state existence depends on recognition by other states, then there is always the risk that some state will abuse its position. Subjectivity in terms of the existence of the state may result in the abuse of power. For example, in 1941 the U.S.S.R. claimed it was liberating the Baltic States from German occupation, not that it was annexing them. Lauterpacht: Not only would existing states have a potentially abusive position to review the independence of peoples, but also, a great number of existing states would disagree over which entities qualify as states, thus undermining the notion that a state is universally recognized. The status of a state recognized by state A but not recognized by state B, and therefore apparently both an ‘international person’ and not an ‘international person’ at the same time, would be a legal curiosity. If we accept that a state exists at some point prior to recognition, then we inevitably must face the question of when a state first exists and accrues international personality, rights, and obligations. Some scholars have begun to delve more deeply into those situations to determine what characteristics of a nation, and later a nation-state, are sufficient to establish that the state exists prior to recognition. Some have concluded that satisfaction of a sociological criterion is appropriate. Anthony Smith, for example, has argued that the quasi-state must evidence an effort to “reappropriate” its culture. Vello Pettai has argued that in the case of Lithuania, the nation existed and could successfully argue for political independence from the U.S.S.R. because it was more racially homogenous than other Baltic states. The Polish Supreme Court, in two important cases regarding the personality of Poland held that “states cease to exist only if the people lose their consciousness of social differentia”.

States are created after their recognition: Constitutive theory According the constitutive theory, creation of a new State depends on the acceptance of present States. The new State will have the rights and duties at the time of being recognised. However, this theory has some queries, such as what will happen if some existing States recognise the new one and the others do not? And how it could be possible to put in force some restrains, like prohibition on aggression, against the unrecognised State. These authors all support the argument that the existence of a state can rest on a fiction applied by other states. Whether states have discretion to apply the fiction or are limited by jus cogens or other criteria is another matter. Either way, there is considerable state practice evidencing theview that other states can and do legislate the existence of other states. The collective non-recognition events surrounding the Japanese occupation and control of Manchuria also demonstrate a constitutive approach in that if most states exclude a purported state from the international plane, then the purported state might be unable to assert its personality, such that it is rendered ineffective and non-independent. Another example is Kuwait. Kuwait’s personality was not deemed extinguished by the U.N. even though it had been invaded, conquered and annexed to Iraq both in fact and under Iraqi law. Another example is the case of Yugoslavia whose legal personality continued to be regarded as existing during the long process of its dissolution. This practice suggests that recognition

both constitutes and maintains the legal personality of other states whose reality would suggest that they no longer existed or existed in a fictitious state. In the Celebici case, the I.C.T.Y. supported the constitutive theory when it held that the conflict within the former Yugoslavia was only of an international nature after international recognition of the independent statehood of Croatia and Bosnia and Herzegovina. Grant discusses Hans Kelsen’s definition of the state as a legal creature composed of “a legal system exercising control over a territory and a people.” Such a definition seems to support the more pragmatic constitutive theory of determining statehood, in that a nonrecognized state is judged by predictable legal criteria of effective power, not unpredictable sociological factors. “A state exists legally only in its relations to other states. There is no such thing as absolute existence. Thus, the view of the constitutive theory that holds that the state does not exist prior to recognition is correct only to the degree that a state is viewed as a bundle of rights on the international plane, and nothing more. There is little evidence of such agreement

Conclusion: The definition of a state is alone an almost impossible task. The

International Law Commission has noted “the word [‘state’] was commonly understood without definition. The first conclusion arising from the preceding is that customary international law on the creation of states is unclear, even if we could establish an objective standard for measuring it. The second conclusion is that an objective standard for measuring state practice and opinio juris probably cannot be established. The third conclusion is that the theories themselves are not logically coherent in that they are attempting to describe two distinct and irreconcilable conceptions of the state.

THE DISCRETION OF STATES TO RECOGNIZE OTHER STATES The second aspect of state recognition theory on which the constitutive and declaratory models take different stands is the role of state discretion in determining whether an entity constitutes a new purported state. This is partly a question of the form and effect of state recognition. Generally, the lesser weight given to recognition as supporting a state’s creation, the lesser weight the international community gives to the discretion exercised by the state, with the reverse also being true. Traditionally, the constitutive theory afforded existing states considerable discretion in determining whether a new state had emerged. A state might apply criteria to evaluate the purported state’s new status, but those criteria were factors or justifications, not legally mandated threshold requirements, since a state was always “free to recognize (another state) or not on any grounds. In the final analysis, it “does not matter how a state came to be.” This theory therefore admitted that recognition was a political, as opposed to a legal, process. This theory also accordingly promoted a vision of international law as based primarily in state consent.

An example would be the refusal of many powers to recognize Tibet as an independent state due to concern over provoking China, even when some states may have believed that it satisfied their criteria to be a state and Timor, where world powers generally refused to recognize the annexation of East Timor by Indonesia. The declaratory theory accepts the view of the rival doctrine according to which there does not exist, in any circumstances, a legal duty to grant recognition. At the same time, with some lack of consistency, it maintains that prior to recognition the nascent community exists as a State as is entitled to many of the most important attributes of statehood.

Of course, if indeed the state does already exist prior to being recognized by other states, then a claim to unlimited discretion is superfluous. It is only where the state claims that the form and effect of its recognition is constitutive that the theory of unlimited discretion appears to threaten the international community’s claim to limited discretion. One possible limitation on the discretion to recognize statehood is the Montevideo Convention criteria of a permanent population, defined territory, government, and the capacity to enter into relations with the other States and self-determination, Additional criteria may be democracy and civil rights, establishment in conformity with law and jus cogens obligations feasibility of the new state, and willingness to observe international law, among others.

Limited by Obligations to International Organizations Another way to limit states’ discretion is by a state’s international obligations. Lauterpacht stated that his proposal for recognition theory was a supra-national organ that would conclusively determine statehood status. It was acknowledged by the U.N. that “[i]t is controversial, however, whether recognition of a government or of a state was considered a prerequisite of membership, or whether the question concerning de jure or de facto recognition was raised for purposes of information only.

Recognition of Governments The European Communities Declaration on the "Guidelines on the Recognition of new States in Eastern Europe and the Soviet Union" indicates that “'The Community and its member States adopt a common position on the process of recognition of these new States, which also requires “effective government”. Recognition of government is related with where the change of the government is unconstitutional. The recognition of a State is about its legal personality on the other hand recognition of a government is relevant to the status of the administrative authority. Governmental recognition, reduced to its skeletal features, appears to be a two-part inquiry: • first, does the regime exercise effective control over the territory it aspires to govern (and perhaps also the volition to fulfill international obligations on its behalf); • and second, is it legitimate? The latter criterion invites many questions, foremost, the meaning of legitimacy. But note that, while the effective-control prong of governmental recognition speaks to the pragmatics of foreign relations, the legitimacy prong need not. A government could coherently recognize a regime’s effective control over some territory and therefore deal with that regime as its de facto government—but at the same time not extend the regime formal recognition and therefore refuse to validate its de jure claim to legitimacy. This idea in part animates the debate over the spectrum between so-called de facto and de jure recognition. Popular sovereignty, once a concept foreign to all but a few Western nation-states, now constitutes a paramount normative basis for recognition of governmental legitimacy. The best example here was that for many years the US refused to recognize the Communist government in Russia after 1917, and the Communist government in mainland China after 1949. The state continues to exist even when there is a change, even a revolutionary change in governments. While recognition of a government is normally a formal act, sometimes an informal act is sufficient. The author uses the case Bank of China v. Wells Fargo Bank & Union Trust, (1952), p. 79 to help illustrate that it is the executive

decision on recognition that almost always determines the judicial outcome. In this case, it was the nationalist government that was entitled to the assets of the state-owned bank. Aust argues that the distinction between de facto and de jure recognition is one of the most confused circumstances of recognition and at first hand he objects the expressions de facto and de jure recognition. According to him, they are technically in correct, since the words de jure or the de facto describes the government not the act of recognition.17 Indeed, the subject is about the legal status of the government. Similarly, Akehurst gives a definition of the de facto and de jure recognition by relying on the legal status of the government: “Recognition de jure means that the entity fully satisfies the applicable legal criteria; recognition de facto is only of the current position of the entity, and is therefore usually provisional. De jure recognition is of course stronger, while de facto recognition is more tentative and more connected with effective control of the recognised state over its territory, as when the United Kingdom recognised the Soviet Union de facto in 1921, but de jure only in 1924. The assessments or the definitions of the situations but it is the fact thateverything is concerned and the general context of fact and De facto recognition can be thought as an ambiguity. This method gives the recognising with the political facts and its interests.

both concepts can be change in different relevant to the intention of the government law. attitude of wait and see, since it includes state the opportunity of acting in accordance

Ad hoc recognition also occurs in international relations; such recognition is not official and only signifies entry into relations with the new power or governments concerning a particular issue or cause—for example, the protection of the citizenry or the exchange of prisoners of war.

Conditional and Implied Recognition Recognition is about intention and may be expressed or implied. To understand how a State may recognise another State by implication it is necessary to look into the some certain circumstances. Lauterpacht states that, the establishing of diplomatic elations and maybe, to grant the exequatur or signing a bilateral treaty includes extensive relations between the two states justify the implication. A congratulation message to a new State for obtaining sovereignty will bear recognition of that State, but unofficial contacts do not have the same result. It does not mean recognition when two states both signed a multilateral treaty such as United Nations Charter. Israel and many Arab countries are UN members at the present but it does not change Arab non-recognition of the Israel State. On the other hand when a State affirms the membership in the UN of an entity, needless to say that recognition occurs. As an example, United Kingdom recognised the Former Yugoslav Republic of Macedonia by supporting its membership in the UN. In practice the implied recognition is not preferred since the states want to have their control of recognition and in general they use a formal way for it. Conditional recognition means that to recognise an entity as a State only when it fulfills some conditions. It was first seen in the Berlin Congress of 1878, Great Britain, France, Italy 17

A.Aust, “ Handbook of International Law” (Cambridge University Press, 2005) 26

and Germany marked the recognition of Bulgaria, Serbia, Romania and Montenegro with the condition that these countries would not impose any religious disabilities on any of their subjects.

LEGAL CONSEQUENCES OF RECOGNITION After recognition, the recognising States would respect to the rights of the new State which indicated in the International Law Commission Draft Declaration on Rights and Duties of States, 1949, such as “right to independence and hence to exercise freely, right to exercise jurisdiction over its territory and over all persons, right to equality in law with every other State, right of individual or collective self-defense against armed attack. The legal effects of recognition differ depending on the forum. While in international and continental European courts recognition has only probative value, in English and American courts an official statement of recognition or non-recognition by the forum government is conclusive evidence as to the legal status of a foreign authority or entity as, according to the “one voice doctrine,” in matters of foreign affairs the judiciary and the executive are to speak with one voice. The forum government’s position may be introduced in the judicial process by way of a Foreign Office certificate, amicus curiae brief or statement of interest. The question of recognition may determine access to the courts (locus standi), privileges and immunities, the legal status of individuals, the right to recover State property in the forum, and the judicial cognizance of foreign legal acts. The traditional (English) common law rule of “non-recognition, non-cognizance,” according to which a State or government that is not recognized as such does not exist in the eyes of the law, has been mitigated by the courts, inter alia, by giving retroactive effect to recognition, treating an unrecognized authority as the “subordinate body” of a recognized State, and by giving effect to the laws and legal acts that regulate the day-to-day affairs of the people in an unrecognized State or government. The participation in the international process is not the only result of recognition, at the same time the recognised State will be able to enjoy usual legal consequences of recognition such as privileges and immunities within the domestic legal order. Some privileges and immunities within the municipal law of United Kingdom, according to Shaw as follows: • Only a recognized state or government has locus standi in the UK courts • Only a recognized state or government (or its agents), may plead immunity from suit. It cannot be sued without its consent. • Only the legislative, executive or judicial acts of a recognized state or government will be given legal effect within the United Kingdom” • Shaw adds one more “it will be entitled to possession in the recognising state of property belonging to its predecessor Some important legal consequences are as follow: • Recognized states are treated as having the rights and duties of states. • Recognition of a government validates the acts of that government from its establishment. • Recognition of a government gives that government, normally, access to the courts of the recognizing state (since prior to recognition that government had no legal personality in the recognizing state). • Recognition of a government gives it the right to the property of the state within the recognizing jurisdiction (i.e. embassy, papers, bank accounts, etc.). • Sovereign Immunity, to the extent available under international/national law. • The previlegae of jus legationis or the capacity to send and receive consuls and diplomats.

Withdrawal of Recognition and Non-recognition Sometimes it is possible to withdrawn a granted recognition. Especially, it is easier for the de facto recognition since the position is different with the de facto recognition which includes an ambiguity for the future of the entity. If the government of the entity loses the effective control on its territory there will be no ground for recognition and it may be taken back. On the other hand de jure recognition is more difficult to withdraw because as mentioned above it is stronger than de facto recognition. De jure recognition may be the case only if the State is annexed or conquered by another State. Generally it is said that the recognition should be given with certainty. That is, those who give recognition must first be convinced that the party has been given the recognition it truly qualifies as international private or have a personality of international law (international legal personality). Thus, if the confession was given the recognition it will be valid for eternity in the sense of a recognized party as long as it does not lose his qualifications as a legal person under international law. The doctrine of non-recognition, also known as the Stimson Doctrine of non-recognition, means to not grant recognition to the new entities or the some factual positions which are the result of any illegal actions such as using force. It supported the principle that legal rights cannot obtain from an illegal situation. ( ex injuria jus non oritur). The doctrine was brought forward by the United States Secretary of State, Mr. Stimson in 1932, relevant to the Japanese occupation of Manchuria. Though Japan is one of the countries signatory to the Paris Peace Treaty 1928 (also known as the Kellogg-Briand Pact or Pact of Paris), a treaty ending the war. In the agreement there is a provision which states that the signatory countries agreed to reject the use of war as a means to achieve political goals. Thus, the Japanese invasion was clearly contrary to the agreements that follow the signing. The non-recognition of a de facto existing State or government may be motivated by political reasons, as in the case of the non-recognition by Western States of the German Democratic Republic as State (1949-19723) or US non-recognition of the Chinese Communist Government (1949-1979) The duty not to recognize as lawful a situation created by a serious breach of an obligation arising under a norm of jus cogens is now laid down in article 41(2) of the International Law Commission’s Articles on Responsibility of States of Internationally Wrongful Acts (2001). A duty of non-recognition may also arise under a treaty or a binding resolution of the United Nations Security Council.

OTHER ISSUES Recognition as a rebel: This recognition is given to a group of rebels who were conducting a rebellion against his own government in a country. By providing this recognition, it does not mean the country which recognizes that siding with the rebels. The rationale of this recognition is purely humanitarian considerations. As is known, the insurgents typically make a revolt because the fight for political beliefs that differ from the government’s political beliefs that were in power. Therefore, they actually are not ordinary criminals. And that was the intent of this recognition, that is for the rebels are not treated the same as ordinary criminals. However, this recognition did not prevent authorities (government) is legitimate to quell the rebellion. Recognition beligerensi: This recognition is similar to recognition as a rebel. However, the nature of this recognition is more powerful than recognition as a rebel. This recognition is

given when the rebels had been so strong that as if there are two governments that are fighting. The consequence of granting this recognition, among others, belligerent can enter the port state that recognizes. Recognition as a nation: This recognition is given to a people who are in the stage of forming the state. They can be recognized as subjects of international law. Same legal consequences to the legal consequences beligerensi recognition. Recognition of territorial rights and the new international situation: a)according to the norms of international law (eligible for recognition) and b)violation of the norms of international law (the theory of non-recognition)

Chapter 4: State Territory and Jurisdiction

Concept of State Territory According to Oxford dictionary the term territory used in everyday language refers to the extent of land under jurisdiction of a sovereign, State, city; an organized division of a country or an area defended against others. The international relations discourse places emphasis on the geographic connection between sovereignty and territory – the land to be defended. In legal discourse, territoriality is understood in jurisdictional terms. The concept places emphasis on the connection between the state and the “area” to be defended against others. State territory is that defined portion of the surface of the globe which is subjected to the sovereignty of a State. Montevideo Convention on the Rights and Duties of States 1933, article 1 defines a State as an international person should possess a defined territory. There are three main parts of state territory: (1) Land territory: all land areas within the boundary of a state (including internal waters: rivers, lakes, canals, ports); (2) Maritime territory: territorial sea (12 nautical miles from the coast)(International Law of the Sea); (3) Territorial air space: air space above land territory and TS (to an unlimited height until outer space) (International Air Law).

Principle of Territorial Sovereignty International law recognises the supreme authority of every Sate within its territory and this is known as ‘territorial sovereignty’. The modern international law tends to limit the exercise of state sovereign such as that of non-interference in internal matters to protect the universal rights such as right to a clean and healthy environment, right to life, right to nationality etc, however, territory also is a feature of state sovereignty. However, there is the unchanged concept of territorial sovereignty. When the UN Charter says “territorial integrity” and “political independence” in connection with the prohibition of the use of force these notions are not unrelated with territorial sovereignty. In the Corfu Channel case18 justice Steinberg has assured of the immutability of territorial sovereignty when he said that “Exclusivity of jurisdiction of States over their respective territories is a central attribute of sovereignty” and that “Between independent States, respect for territorial sovereignty is an essential foundation of international relations”. Indeed, Sovereignty is traditionally understood to represent the summa potestas or supreme power of command inherent in the concept of the State. These cases, and indeed latent boundary disputes, reveal the strong sense of territorial sovereignty of the States involved. Territorial integrity: Territorial integrity is the principle under international law that nation-states should not attempt to promote secessionist movements or to promote border 18

8

ICJ Reports 1949, p. 35.

changes in other nation-states. Conversely it states that imposition by force of a border change is an act of aggression.The League of Nations was intended to uphold territorial integrity and other principles of international law. It did condemn the Italian invasion of Ethiopia. It broadly supported the Chinese Republic over the creation of Manchukuo in Manchuria and eastern Inner Mongolia. Self-determination: The concept of self-determination and the acquisition of territorial sovereignty are highly deliberated concepts. The principal notion of self-determination is a people’s right to decide their State’s political status and its fundamental purpose in the international community. The principle of self-determination draws its foundations from the ideologies of Statehood. The key recognition of self-determination was the reference included to it in the United Nations Charter in Article 1, paragraph 2 where it is stated ‘the principle of equal rights and self-determination’. The modern interpretation of selfdetermination is that it is in fact a legal principle and that the United Nations does now recognize the importance of it. The ICJ in its 1971 Advisory Opinion on Namibia19 clearly articulated that colonial and subjugated people should have a definitive right to independence - free from claims of territorial acquisitions and ICJ and also in case of east timor and most significantly in western sahara, making territorial sovereignty on the basis of self determination a customary international law. Territorial waters: A number of recent multilateral or bilateral treaties and agreements on the law of the sea have provisions to the effect that certain dispute settlement measures do not affect the final boundary delimitation between the parties. For example, the United Nations Convention on the Law of the Sea of 1982, Articles 74 and 83, paragraph 3, provides: Pending agreement as provided for in paragraph 1, the States concerned … shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement.” This treaty provisions eloquently show how vitally important a State considers its territory, be it a continental or insular one, in terms of territorial sovereignty. The principle uti possidetis means that “the frontiers of newly independent States are to follow the frontiers of the old colonial territoriesfrom which they emerged and that they cannot be easily altered by unilateral action”. Principle of continuity’ suggests that a State is entitled to sovereignty over the land adjacent to and extending from an area of territory already under its control, such as islands

TRADITIONAL AND MODERN MODES OF ACQUISITION OF STATE TERRITORY

Traditional Modes of Acquisition of State Territory There are five traditional modes of acquisition of sovereignty over territory: 1) occupation; 2) prescription; 3) cession; 4) conquest; and 5) accretion. Out of the five traditional modes, ‘occupation’(and arguably ‘prescription’) are the only modes that create the ‘original title’ to territory. The other modes (cession, conquest, accretion) are ‘derivative’ only. In both occupation and prescription, ‘peaceful and continuous display of State authority’ is a very important decisive factor. 19

Legal Consequences for Status of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276, ICJ Reports, 1971.

Occupation ‘Occupation’ is the intentional acquisition by a State of sovereignty over a territory which is at the time not under the sovereignty of another State (terra nullius). There are two basic requirements for a lawful occupation (1) The territory in question must be terra nullius; (2) The occupation must be ‘effective’ in the sense that there must be an intention to occupy (animus occupandi), followed by the actual exercise of State functions over the territory (corpus occupandi). Since occupation is a sovereign act, a private person cannot acquire territorial sovereignty by occupation, without the express authorization or subsequent confirmation (or ratification) of his State. Terra nullius: Terra nullius is a territory belonging to no one at the time of the act alleged to constitute occupation but the concern of position of territories inhabited by native tribes with certain social and political organization is not to be overlooked. This problem was examined by the ICJ in the Western Sahara case Western Sahara case: The Court found that since Western Sahara was inhabited by peoples which, if nomadic, were socially and politically organized in tribes and under chiefs competent to represent them, it could not be regarded as a terra nullius at the time of the Spanish colonization) and further that Morocco was not able to show any evidence of actual display of authority over the territory. Effective occupation: Occupation to be valid must be ‘effective’. The requirements of ‘effective occupation’ have become increasingly strict in international law. there are two elements of effective occupation: (1) The intention and will to act as sovereign (animus); and (2) The peaceful and 3) continuous display of State authority (factum). In the Eastern Greenland case 20, the Court emphasized that the actual display of sovereignty must be accompanied by an animus or intention to act as sovereign. The exercise of State authority over a territory must be peaceful in the sense that it is not challenged by other States. Regarding the continuity criteria, the display of State authority must be ongoing. However, the degree of continuity may vary with each case. econdly, the display of State authority must exist up to the ‘critical date’. Normally, it is the date of the origin of the dispute (i.e., when two States making rival claims of sovereignty over the territory) and the State which can demonstrate an effective title in the period immediately preceding the critical date has the superior claim. The court agreed with Denmark.

Prescription Prescription’ can be defined as “the peaceful and continuous exercise of the State authority for a long period over territory subject to the sovereignty of another.” Like ‘occupation’, the essential element of ‘prescription’ is the ‘peaceful and continuous display of State authority’. The difference between prescription and occupation is that prescription is the acquisition of territory which belonged to another State whereas occupation is acquisition of terra nullius. Furthermore, in order to establish a title by prescription both a stricter proof and a longer period of the display of State authority is required, as compared with the

20

PCIJ, 1933: By Royal Proclamation of July 10th, 1931, Norway declared that they acquired Eastern Greenland by means of occupation, claiming that it was terra nullius. Denmark, however, argued that Eastern Green was not terrea nullius because they were exercising sovereign authority over the territory and thus “the declaration of occupation by the Norwegian Government is unlawful and invalid.

establishment of a title by occupation. This is so because the essence of prescription is the ‘acquiescence’ of the one State in the adverse possession of the other. Requirements of prescription: The possession must be exercised in the form of actual exercise of sovereign authority.(2) The possession must be peaceful and uninterrupted. It means that there must not be any protest or objection by the former sovereign. Display of State authority by the acquiring State is to be accompanied by ‘acquiescence’ on the part of the losing State. Protests or other acts or statements which demonstrate a lack of acquiescence can prevent acquisition of title by prescription. 3) The possession must be ‘public’ 4) The possession must be for a certain length of time. The Island of Palmas case21: Under the Palmas decision, three important rules for resolving island territorial disputes were decided:Firstly, title based on contiguity has no standing in international law. Secondly, title by discovery is only an inchoate title.Finally, if another sovereign begins to exercise continuous and actual sovereignty, (and the arbitrator required that the claim had to be open and public and with good title), and the discoverer does not contest this claim, the claim by the sovereign that exercises authority is greater than a title based on mere discovery.

Conquest and Annexation Conquest is the taking possession of territory through military force in time of war. The usual practice in the past was that after conquest, the conqueror finally annexed the enemy territory. Conquest followed by annexation was regarded as a mode of acquiring territory. However, this is the law in the past. In the 20thcentury, as a result of the provisions of the Pact of Paris of 1928 and the UN Charter, international law restricts the right of States to go to war. By virtue of Article 2(4) of the Charter, the use of force against the territorial integrity and political independence of a State is now illegal. Conquest is no longer regarded as a lawful mode of acquisition. The 1970 General Assembly Declaration on Principles of International Law (GA Resolution 2625) states:“The territory of a State shall not be the object of acquisition by another State resulting from threat or use of force. No territorial acquisition resulting from threat or use of force shall be recognised as legal.” Israel Occupation of Palestine territories: In 1948 Israel unilaterally declared itself an independent State on part of the Palestinian territory. The first Palestinian-Israeli war broke out. Armistice Agreements were made in 1949 and Israel gained more territory. In the “Six Day War” in 1967, Israel again invaded the Sinai Peninsula (including the Gaza Strip). It also invaded the West Bank; East Jerusalem and the Golan Heights. The Security Council22 emphasizing the inadmissibility of such acquisition of territory by war affirmed that the fulfillment of Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of principles with withdrawal of Israeli forces from territories occupied.

Cession Cession is the transfer of territory, usually by treaty, from one State to another. The situation is rather like the transfer of property in municipal law. Therefore, there may sometimes be exchange of territory. It is clear that the normal rules relating to the formation 21

22

(US v. Netherlands) Permanent Court of Arbitration (1928) 2 U.N. Rep. Int'l Arbitral Awards 829

S.C. Res 242 (1967)

and validity of treaties apply to ‘treaties of cession’. There must be no duress or fraud in the procurement of the treaty. Article 52 of the Vienna Convention on the Law of Treaties, 1969, provides that “A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of United Nations. There are a number of sales of territory. France sold Louisiana to the US for 60 million francs in 1803. In 1867, Russia sold her Alaskan territory in America to the US for 7,200,000 dollars. In 1899, Spain sold the Caroline Islands to Germany for 25,000,000 Pesotas.

Accretion and Avulsion A State may also attain sovereignty over may happen slowly (accretion), for example, by the gradual movement of a river bed or suddenly (avulsion), for example, by the creation of an island in territorial waters by volcanic action. In Southern Center of Theosophy v. State of South Australia (1982) AC 706 All ER 283, accretion occuered where the deposits were carried by the wind and they b settled and extended the boundary of the land into the water.

Modern means of acquisition of territory Effective occupation Effective occupation is essentially the continued peaceful display of sovereignty over territory.23 The amount of display depends on the nature of the territory, thinly populated or inhospitable land would require few displays, for instance. The existence of rival claims, however, may increase the number required (though it is not a set number that needs to be exceeded for it to be considered acquired, more a general number of certain quality). The evidence of sovereign acts must be by states, or attributable to states, so the acts of private individuals and corporations can help establish this, so long as they are attributable to the state.In order to prove the ‘continuous and peaceful display’ of territorial sovereignty, five elements that must be shown to exist before a state can acquire territory. These are: 1. There must be an apparent display of sovereignty. An important principal here is that the extent of the required display of state powers is relative to the nature of the territory in dispute. 2. There must be an intention to acquire sovereignty. ‘In the usual case, this can be presumed from the simple fact that the state is exercising such authority in the territory.’ In remote territories (such as the Clipperton Island) where an extensive display of authority is not possible, the state ‘must make clear its sovereign intentions by other means’. Examples of these ‘other means’ are ‘the publication of notices of sovereignty in various journals in the Clipperton Island Arbitration and the declared application of national laws to Greenland by Denmark in the Eastern Greenland Case 3. The display of control must be ‘continuous’ - in other words, the display of sovereignty must be ongoing, and rarely can it consist solely of a single act.

23

Refer to the Island of Palmas case.

4. The display of control must be ‘peaceful’- This is probably the most controversial aspect. Refer to the above materials on occupation and prescription 5. The above rules must apply at the “critical date”: Refer to the above material on occupation.

Consent by other states This basis for title can be divided up into consent or recognition by the other party to the dispute, or by other states, or by the international community.If a State consents to the other party in a dispute over territory to take soverienty over that land, it is a legal transfer (so long as there are no other legitimate claimants).If a State recognises the other parties claim, and physical control (such as an official not protesting over the flying of a flag on the territory in question) then that country is essentially stopped from arguing they have a claim over that territory. Temple of Preah Vihear Case. If other states have recognised a State as the sovereign over territory, and have entered into agreements with them over that territory due to that recognition, it endorses that States claim to the territory. Legal Status of Eastern Greenland Case Should the international community (such as through the UN) recognise a State’s sovereignty over territory, even if that territory was gained illegally (say by occupation or conquest), then that sovereignty is established as legitimate, however, it could be argued that it is only when the former owner of the territory consents that the acquisition of the territory is fully established under international law.

Areas of the world which are outside the exclusive sovereignty of any state

International territorial administration: Where there is or has been a problem in the territory and it might be useful for an international organisation to play a role. It might involve the international organisation engaging in specific task(s), such as supervising an election, delivering aid and/or social services; to having ‘plenary’ (ie. full) The high seas: This is the area of the sea beyond any national jurisdiction (this can either be at the outer edge of the Territorial Sea or the EEZ, if one exists). According to both customary IL & Article 89, Law of the Sea Convention 1982 no state can claim any part of the High Seas. The deep considered Law of the agreement

sea bed: This is the ocean bed beyond the jurisdiction of any state. It is the “common heritage” of mankind as specified in Articles 1, 136, 137 & 140, Sea Convention 1982 . However, not all states agreed to this, and an amended has been drafted.

The Antarctic: 7 States have claimed sovereignty of different parts of the Antarctic. The Antarctic Treaty freezes all territorial claims since 1961 and demilitarises the area. Since 1991, the Antarctic is a natural reserve devoted to peace and science, and as a result there shall be no exploitation of its natural resources.

The Arctic: This consists mainly of frozen sea. Its status is unclear - Canada and Russia have made claims to it, but Norway, USA and Denmark claim it should have a similar status to the High Seas. Some isolated islands have also been claimed by Denmark and Norway. Its status is thus in dispute, and there is no Treaty to cover the situation. Outer space: Outer space is not subject to appropriation by any state.Treaty on Principles Governing the Activities of States, including the Moon and other Celestial BodiesFurther, the moon and other celestial bodies are considered the common heritage of mankind. Agreement Governing the Activities of States on the Moon and other Celestial Bodies.

State Jurisdiction The concept of jurisdiction is integral to the sovereignty of States and is fundamental to the functioning of the international legal system. Judge Rosalyn Higgins, the President of the International Court of Justice describes jurisdiction as an allocation of competence to States, which is important for the avoidance of conflict of authority. Jurisdiction in international law is essentially the competence of States to exercise lawful authority over persons, territory as well as events. Jurisdiction may be civil or criminal (regulatory) in nature. The typology of jurisdiction includes prescriptive jurisdiction (authority to make laws) and enforcement jurisdiction (authority to apply and enforce laws). There are different bases for the exercise of jurisdiction, including territoriality, nationality, protective, universality and the more controversial passive personality and effects principles

Territorial jurisdiction It refers to a court's power over events and persons within the bounds of a particular geographic territory. If a court does not have territorial jurisdiction over the events or persons within it, then the court cannot bind the defendant to an obligation or adjudicate any rights involving them. Territorial jurisdiction is to be distinguished from subject-matter jurisdiction, which is the power of a court to render a judgment concerning a certain subject matter, or personal jurisdiction, which is the power of a court to render a judgment concerning particular persons, wherever they may be. Unlike subject-matter jurisdiction, territorial jurisdiction may be waived, even unintentionally, by a defendant. Personal jurisdiction, territorial jurisdiction, subject-matter jurisdiction, and proper notice to the defendant are prerequisites for a valid judgment. In relation to Diplomatic immunity, it is to be noted that the institution of diplomacy, with its concomitant privileges and immunities, has withstood the test of centuries and proved to be an instrument essential for effective cooperation in the international community, and for enabling States, irrespective of their differing constitutional and social systems, to achieve mutual understanding and to resolve their differences by peaceful means. The territorial jurisdiction is an exception to diplomatic immunity, representatives of a foreign state are immune from the application of the host states municipal law. International diplomatic law was the earliest expression of international relations. For example, Diplomatic relations exist only by mutual consent of states. Although all independent states enjoy the capacity to establish diplomatic relations, there is no right to diplomatic relations. Types of jurisdictional territory within the international system

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Incorporated national territory, within which all residents are considered citizens.

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Unincorporated national territory. This can include territories in which the residents do not have full rights.

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Trust territories or dependencies. These are territories with some of the attributes of a nation-state but not full independence, administered by a nation, perhaps with international sanction.

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Occupied territories. These are usually the result of war and conquest, and ruled by martial law imposed by the conqueror.

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International commons. Territory not under the jurisdiction of any nation, but open to use by all, subject to treaty restrictions. This includes the high seas beyond coastal territorial limits, Antarctica, and Outer Space.

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National flag vessels at sea. The vessel is considered to be part of the territory of the nation whose flag it flies, and subject to the laws of that nation. A vessel without a national flag may be considered a pirate vessel.

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Diplomatic grounds. The grounds of foreign embassies and some consulates, like vessels at sea, are considered part of the territory of the nation they represent.

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Foreign military bases. Like diplomatic facilities, they may or may not constitute territory of the nation whose forces are stationed there, depending on a status of forces agreement.

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Extraterritorial jurisdiction. This is asserted by most nations over their military and diplomatic personnel while abroad, and by some nations over subjects like piracy and offenses against the law of nations, such as "crimes against humanity" or genocide, or taxation of income of citizens obtained from foreign sources.

Personal Jurisdiction In personam, (or personal jurisdiction) is the power of a court to adjudicate the personal legal rights of parties properly brought before it. Requires that the court not only have jurisdiction over the subject matter of the action, but also that it have jurisdiction over each party to the action. Due process of law requires appearance or service of process (notice of pendency of the lawsuit) before the defendant can be personally bound by any judgment. A person is subject to in personam jurisdiction on any of the following theories: (1) Presence, i.e., being served with a copy of the summons and complaint while physically present in the forum jurisdiction. The physical presence of a defendant in the forum is a sufficient basis for acquiring jurisdiction over him, no matter how brief his stay might be. (Pennoyer v. Neff, 95 U.S. (5 Otto) 714, 24 L.Ed. 565 (1877). ) (2) Domicile (residence) alone is a basis for exercising jurisdiction over an absent domiciliary. (Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1940).) I.e., a person may always be sued for all claims, regardless of where they arise, in their state of permanent residence or in the case of a corporation, the state in which it is incorporated. (3) Consent to personal jurisdiction. A defendant who has not been personally served in the jurisdiction can nevertheless voluntarily appear and submit himself to jurisdiction. In such cases defendant is said to have "consented" to jurisdiction. Can consent be obtained in advance of any lawsuit being filed? Can consent be implied? Hess v. Palowski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927) says yes. A state can legislate that a nonresident motorist using its highways be deemed to have appointed a local official as his agent to receive service of process in any action growing out of the use of the vehicle within the state. However, the state must provide actual notice to the nonresident defendant.

(4) Minimum Contacts. Having sufficient dealings or affiliations with the forum jurisdiction which make it reasonable to require the defendant to defend a lawsuit brought in the forum state. (Int'l Shoe) Hence, a defendant who has never set foot in California may nevertheless be subject to valid personal jurisdiction so as to be compelled to defend a lawsuit in California provided that he has minimum contacts with the forum state such that compelling him to appear and defend in the forum does not offend traditional notions of fair play and substantial justice. (International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).) I.e., the due process clause does not permit a state to exercise personal jurisdiction over an individual or corporation with which the state has no contacts, ties or relations. The existence of personal jurisdiction depends upon a sufficient connection between the defendant and the forum state to make it fair to require defense of the action in the forum and the giving of reasonable notice to the defendant that an action has been brought. If the defendant has not received proper notice, the court's power to adjudicate is imperfect. Notice is usually given by serving the defendant with the "process" (e.g. a copy of the summons and the complaint) of the court. Universal Jurisdiction Jurisdiction is imperative for the protection of rights and interests. However, certain fundamental rights cannot be adequately secured by a few States or through a “framework of bilateral relations” alone. To ensure effective protection and enforcement of these international interests a mechanism that would involve the generality of the world community is sought to be achieved through universality. The Princeton Principles on Universal Jurisdiction provide that universal jurisdiction pertains broadly to the power of States to punish certain crimes irrespective of the place committed and by whom committed (i.e. in the absence of other grounds for the exercise of jurisdiction. Customary international law proscribes the crime of piracy and the exercise of universal jurisdiction by States over pirates is accepted in customary international law. Article 19 of the 1958 Geneva Convention on the High Seas and Article 105 of the 1982 United Nations Convention on the Law of the Sea codify this customary rule that,“On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board.” Usual notions regarding the nature of universal jurisdiction is that it applies to acts which are so heinous that every State has a legal interest in the enforcement of these acts, largely because they violate obligations owed to the international community as a whole (obligations erga omnes). The term, ‘obligations erga omnes’, which is commonly used with regard to the concept of universal jurisdiction was introduced into mainstream international legal language by the International Court of Justice in the Case Concerning the Barcelona Traction, Light and Power Company Limited (Belgium v. Spain). The Court stated that,“…an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State... By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.” These provisions of the Genocide Convention of trying an accused in a competent domestic court have been progressively interpreted as including a “potential” for universal jurisdiction”. Similarly, the International Convention on the Suppression and Punishment of the Crime of Apartheid 1973 contains an undertaking by Parties in Article 4 to adopt legislative, judicial

and administrative measures for the exercise of jurisdiction over persons accused of apartheid, irrespective of territoriality and nationality. Convention against Torture and other Cruel, Inhuman or Degrading Punishment 1984 expressly contains the expansive obligation of States to either prosecute or extradite (aut dedere, aut judicare) alleged offenders. Article 7 of the Convention provides that if a State party in whose territory a person accused of torture is found shall extradite him or submit the matter to its competent authorities for prosecution. The decision of the House of Lords of the United Kingdom in the case of Pinochet was focused on the obligations of Chile, Spain and the United Kingdom under the Torture Convention rather than on whether the Convention provided for universal jurisdiction for acts of torture. 46. The issue of universal jurisdiction has come before the International Court of Justice only once, in the Case Concerning the Arrest Warrant of 11 April 2000 (The Democratic Republic of Congo v. Belgium). In that case, the Democratic Republic of Congo challenged the legality of an international arrest warrant issued by a Belgian court for the arrest of Mr Yerodia Ndombasi, the former Foreign Affairs Minister of the Republic of Congo, for crimes against humanity. Belgium had asserted universal jurisdiction based on a Law of 1993, as amended by the Law of 1999 ‘Concerning the Punishment of Serious Violations of International Humanitarian Law’

Principles of Criminal Jurisdiction in International Law The nationality principle recognizes that a sovereign can adopt criminal laws which govern the conduct of the sovereign’s nationals while outside of the sovereign’s borders. Under this principle, for example, a sovereign can make it a crime for its nationals to engage is sexual relations with minors while outside of its borders or to pay bribes outside of its borders to public officials of another sovereign. The nationality principle has the effect of allowing a sovereign to adopt laws that make it a crime for its nationals to engage in conduct that is not illegal in the place where the conduct is performed. For example, under this principle a sovereign could make it a crime for its nationals to gamble. If Jane Smith, one of the sovereign’s nationals goes to Monte Carlo and gambles, notwithstanding that gambling is perfectly legal in Monte Carlo, Jane Smith has committed a crime in her country and is subject to prosecution. Territorial principle (refer to the territorial jurisdiction): All crimes committed within a State’s territory are within the legislative, executive and judicial jurisdiction of the state. Exceptions are international agreements making other special arrangements and diplomatic immunity. The Passive Personality Principle: Jurisdiction over foreigners for acts committed abroad, which affects nationals of the state. It has become more accepted in recent decades following the development of international terrorism The Protective Principle: The protective principle recognizes that a sovereign can adopt a statute that criminalizes conduct that occurs outside of its borders when that conduct affects the sovereign itself. Under that principle a nation can adopt laws that make it a crime to engage in an act that obstructs the function of government or threatens its security as a state without regard to where or by whom the act is committed. United States v. Zehe, 601 F. Supp. 196 (D. Mass. 1985): 1. In what type of conduct did the defendant, Zehe, engage and did the court find the statute that criminalized that conduct to be within the protective principle? 2. In the court’s analysis is the application of the protective principle affected by the fact that the defendant is not a citizen of the sovereign against who he committed the crime?

Jurisdictional Immunities of State The doctrine and rules of state immunity concern the protection which a state is given from being sued in the courts of other states. The rules relate to legal proceedings in the courts of another state, not in a state's own courts. The rules developed at a time when it was thought to be an infringement of a state's sovereignty to bring proceedings against it or its officials in a foreign country. The rules of state immunity lay down the extent to which a state is protected from being sued in the courts of other states. A successful plea of immunity will prevent a state being made a party to proceedings in the courts of a foreign state and will protect its property from being seized to satisfy a judgment. Immunity can extend to legal proceedings against the state itself, its organs and enterprises and its agents. Itis international law that determines the general rules of whether or not a state should be accorded immunityby the courts of another state, but it is national lawthat interprets and applies those rules. In the United Kingdom, for example, the State Immunity Act 1978sets out the circumstances under which immunity will be granted to other states in this country ICJ Case on "Jurisdictional Immunities of the State" (Germany v. Italy): Germany instituted the ICJ case against Italy in December 2009 for failing to respect Germany's jurisdictional immunity as a sovereign state. In its application to the ICJ, Germany argued that Italian judicial bodies have repeatedly disregarded Germany's immunity as a sovereign state. Germany pointed specifically to the decision of the Corte di Cassazione of March 11, 2004 in the Ferrini case, where the court declared that Italy had jurisdiction over a claim brought by a persons who was deported to Germany during World War II to do forced labor in the armaments industry. After the 2004 judgment of the Corte di Cassazione, numerous other proceedings were brought against Germany in the Italian courts. The 2004 judgment was confirmed in later judgments issued in May and October of 2008. Germany also complained that Italy was taking measures to enforce judgments against Germany, including a "judicial mortgage" on Villa Vigoni, the German-Italian Center for Cultural Exchange. The case is pending verdict in ICJ.

UN convention on jurisdictional immunities of states and their properties: The Convention draws a line between those situations in which a state may properly claim immunity and those in which immunity has, over theyears, been restricted and denied. It lays down a general rule: that a state has immunity, for itself and its property, from the jurisdiction of other states’ courts but then provides exceptions to that general rule. The Convention is concerned with civil proceedings against a state in the courts of another state. It is not intended to cover criminal proceedings

Chapter 5: Nationality Concept of Nationality According to Hansen and Weil, Nationality can no longer be determined as a personal relationship of allegiance, but rather as a legal status embracing a set of mutual rights and obligations towards a political entity fulfilling certain requirements necessary for the existence of a sovereign state. Sovereign powers, a defined territory and the existence of a nation are generally considered necessary conditions for the existence of a state in the sense of public international law, entrusted with the competence and sovereign powers attributed to states. Philosophical and social perception of what constitutes a nation may be different. Nationhood may not require statehood, but there is no statehood without a nation consisting of nationals and territorial sovereignty. Under traditional international law of the nineteenth century, a ‘right to exclude others’ and to defend the territory of the nation from external aggression has been a predominant element of nationality. In a more modern understanding, the term ‘nationality’ defines the status of membership to a community based upon a common history, culture, ethnicity and common political convictions or values. The International Court of Justice in the famous Nottebohm casehas described nationality as a ‘legal bond having at its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred either directly by the law or as a result of an act of the authorities, is in fact more closely connected with the population of the state conferring nationality than with that of any other state. Starke in An Introduction to International Law defined Nationality as 'the status of membership of the collectively individuals whose acts, decisions and policy are vouchsafed through the legal conception of the State representing those individuals. Oppenheim defined Nationality as the link through which an individual can enjoy the benefits of International Law. Article 15 of the Universal Declaration of Human Rights states that "Everyone has the right to a nationality," and "No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality." By custom, it is the right of each state to determine who its nationals are. Such determinations are part of nationality law. The word citizenship is often used in a different sense from nationality. The most common distinguishing feature of citizenship is that citizens have the right to participate in the political life of the state, such as by voting or standing for election. The term national can include both citizens and non-citizens. Alternatively, nationality can refer to membership in a nation (collective of people sharing a national identity, usually based on ethnic and cultural ties and self-determination) even if that nation has no state, such as the Basques, Kurds, Tamils and Scots.

Modes of Acquisition of Nationality Acquisition • •

By Birth By Naturalization: By adapting citizenship. Ex: Mother Theresa

• •

By Resumption: Relinquish and start again By Subjugation: One state conquered by another and hence nationality of its people changes • By Cession: A State is ceded in another State • By Migration: To leave one country or region to settle or work for a period in another Acquisition of Citizenship under Nepalese Constitution:

• • • • •

any person whose father or mother is a citizen of Nepal at time of the birth of such person Every child who is found within the territory of Nepal and the whereabouts of whose parents are not known shall, until the father or mother of the child is traced, be deemed to be a citizen of Nepal by descent. Whenever any territory is acquired by way of incorporation into Nepal, every person having his domicile within such territory shall become a citizen of Nepal, subject to the provisions of the laws in force. A woman of foreign nationality who has a matrimonial relationship with a Nepalese citizen may acquire naturalized citizenship, if she desires to do so, pursuant to the laws in force. Government of Nepal may grant naturalized or honorary Nepalese citizenship as per the provision of the law.

Termination of Nationality •

By renunciation

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Loss of nationality abroad: Loss due to permanent residence abroad, Loss by nationals irrespective of their country of birth, Loss by nationals born outside the state’s territory, Loss due to entry into the service of a foreign state

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Loss of nationality in or outside the respective country: Loss due to acquisition of a foreign nationality, Loss after a forced choice between two nationalities, Loss based on false information or other types of fraud in a nationality acquisition procedure , Loss due to non-compliance with conditions for the acquisition of nationality ex post, Loss due to loss of nationality by a parent,

•

Other modes of loss of nationality: Disloyalty, treason or offences against the state, Other offences

Statelessness The right to nationality has been further elaborated in two key international conventions which have brought the concept of statelessness into the United Nations framework. The 1954 Convention relating to the Status of Stateless Persons was initially conceived as a protocol on stateless persons that was to be included as an addendum to the 1951 Convention relating to the Status of Refugees but was later made into a convention in its own right and is now the primary international instrument that aims to regulate and improve the status of stateless persons. A second convention was introduced in 1961 with provisions to avoid statelessness at birth. While the 1961 Convention on the Reduction of Statelessness reiterates the mainconcerns of the 1954 instrument, in practice it defers to states and asserts that nationality shall be granted by ‘operation of law to a person born in the State’s

territory’ to anyone who would otherwise be stateless (UN General Assembly 1975).One important failing of this convention is that it does not prohibit the possibility of revocation of nationality under certain circumstances nor does it address the subject of retroactively granting citizenship to all currently stateless persons; hence, the problem of statelessness has not been resolved. UN General Assembly, 'Convention Relating to the Status of Stateless Persons’ describes people who are not considered nationals by any state as stateless.Although statelessness is prohibited under international law, the United Nations High Commissioner for Refugees (UNHCR) presently estimates that there may be as many of 12 million stateless people in the world.23 Convention on the Reduction of Statelessness (1961), which Nepal is a party to, under article 1-4 outlines principles for the granting of nationality at birth to avoid future cases of statelessness. However, the implementation seems not to have gained momentum reflecting on the latest report by United Nations High Commission for Refugees(hereafter UNHCR), there are 800,000 stateless people within Nepal24,although some 2.6 million Citizenship Certificates had been distributed in 2007 to Nepalese citizens without citizenship‟. Research by Refugees International has highlighted the innumerable barriers which stateless people contend with, including the denial of opportunities to: establish a legal residence, travel, work in the formal economy, send children to school, access basic health services, purchase or own property, vote, hold elected office, and enjoy the protection and security of a country.

Asylum and Refugee Under the United Nations Convention Relating to the Status of Refugees of 1951, a refugee is more narrowly defined (in Article 1A) as a person who "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country". The concept of a refugee was expanded by the Convention's 1967 Protocol and by regional conventions in Africa and Latin America to include persons who had fled war or other violence in their home country. Refugee women and children represent an additional subsection of refugees that need special attention. For the refugee system to work successfully, countries must be prepared to allow Open borders for people fleeing conflict, particularly for countries closest to the conflict. UNHCR provides protection and assistance not only to refugees, but also to other categories of displaced or needy people. These include asylum seekers, refugees who have returned home but still need help in rebuilding their lives, local civilian communities directly affected by the movements of refugees, stateless people and so-called internally displaced people (IDPs). It outlines a refugee's rights including such things as freedom of religion and movement, the right to work, education and accessibility to travel documents, but it also underscores a refugee's obligations to a host government According to international refugee law, a refugee is someone who seeks refuge in a foreign country because of war and violence, or out of fear of persecution. The United States recognizes persecution "on account of race, religion, nationality, political opinion, or membership in a particular social group" as grounds for seeking asylum. Until a request for refuge has been accepted, the person is referred to as an asylum seeker. Only after the recognition of the asylum seeker's protection needs, he or she is officially referred to as a refugee and enjoys refugee status, which carries certain rights and obligations according to the legislation of the receiving country.

The principle of non-refoulement: A refugee's right to be protected against forcible return, or refoulement, is set out in the 1951 Convention relating to the Status of Refugees:"No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social or political opinion" (Article 33(1))It is widely accepted that the prohibition of forcible return is part of customary international law. This means that even States that are not party to the 1951 Refugee Convention must respect the principle of non-refoulement.[6] Therefore, States are obligated under the Convention and under customary international law to respect the principle of non-refoulement. If and when this principle is threatened, UNHCR can respond by intervening with relevant authorities, and if it deems necessary, will inform the public.